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Exhibit 10.46
SFA FINANCE COMPANY
AS SELLER,
SAKS & COMPANY
AS SERVICER,
AND
BANKERS TRUST COMPANY
AS TRUSTEE
ON BEHALF OF THE CERTIFICATEHOLDERS
OF THE
SAKS MASTER TRUST
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AMENDMENT NO. 1
TO THE
POOLING AND SERVICING AGREEMENT
DATED AS OF APRIL 25, 1996
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AMENDMENT NO. 1 TO POOLING AND SERVICING AGREEMENT
THIS AMENDMENT NO. 1 TO POOLING AND SERVICING AGREEMENT is dated as of
September 17, 1998 (the "Amendment"), and is by and among SFA FINANCE COMPANY, a
Delaware corporation (the "Seller"), SAKS & COMPANY, a New York corporation (the
"Servicer"), and BANKERS TRUST COMPANY, a New York banking corporation, not in
its individual capacity but solely as trustee (the "Trustee").
WHEREAS, the Seller, the Servicer and the Trustee are parties to that
certain Pooling and Servicing Agreement dated as of April 25, 1996 (as the same
has been amended, supplemented, restated or otherwise modified and as in effect
immediately prior to the effectiveness of this Amendment, the "Pooling and
Servicing Agreement");
WHEREAS, upon the consummation of the transactions (the "Merger")
contemplated by the Agreement and Plan of Merger dated as of July 4, 1998 (as
amended, the "Merger Agreement"), by and among Xxxxxxxx'x, Inc. ("Xxxxxxxx'x"),
Fifth Merger Corporation and Saks Holdings, Inc. ("Saks Holdings"), Saks &
Company ("Saks") will become a subsidiary of Xxxxxxxx'x;
WHEREAS, following the Merger, it is anticipated that all of the
existing open end credit Accounts of Saks will be contributed to National Bank
of the Great Lakes, a national banking association (the "Bank") that is a
Xxxxxxxx'x subsidiary, and the Bank will assume, among other things, all
obligations of Saks under the related Charge Account Agreements;
WHEREAS, the Seller, the Servicer and the Trustee desire to amend the
terms of the Pooling and Servicing Agreement (including the Receivables Purchase
Agreement that is an exhibit to the Pooling and Servicing Agreement), to
provide, among other things, and subject to the terms of the Pooling and
Servicing Agreement, (a) for the contribution (the "Contribution") of all the
open end credit Accounts to the Bank; (b) for the Bank to originate open end
credit Accounts and Receivables therein following such contribution, and (c) for
all Eligible Receivables originated in connection with such open end credit
Accounts to be conveyed to the Trust; and
WHEREAS, the parties hereto are authorized by Section 13.1 of the
Pooling and Servicing Agreement to amend the Pooling and Servicing Agreement so
as to add to, change or eliminate any of the provisions of the Pooling and
Servicing Agreement, including the exhibits from time to time;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, in the Pooling and Servicing Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
all of the parties hereto, each of the parties hereto, intending to be legally
bound agrees as follows:
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SECTION 1. AMENDMENTS UPON SATISFACTION OF CONDITIONS PRECEDENT. The
Pooling and Servicing Agreement shall be deemed to be amended as follows upon
the satisfaction of the conditions precedent contained in Section 4 hereof:
(a) The Pooling and Servicing Agreement is hereby amended, effective as
of the effective date and time (the "Effective Time") of the Merger, by adding
to Section 1.1 the following new definition in the appropriate alphabetical
location:
"Bank" shall mean National Bank of the Great Lakes, Elmhurst,
Illinois, and any national banking association or banking corporation
organized under the laws of the United States or any state thereof that
is an Affiliate of Saks & Company that may, as part of its activities,
originate, acquire, transfer and/or service Accounts and Receivables,
together with its permitted successors and assigns.
(b) The Pooling and Servicing Agreement is hereby amended, effective as
of the Merger's Effective Time by amending and restating the definitions of the
terms "Charge Account Agreement", "Charge Account Guidelines", "Receivables
Purchase Agreement", "Saks" and "Servicer" contained in Section 1.1 to read in
their entirety as follows:
"Charge Account Agreement" shall mean, in the case of each
account originated or acquired by Saks or the Bank, the agreement (and
the related credit application) for a credit card account between any
Obligor and Saks or the Bank, as the same may be amended, modified or
otherwise changed from time to time.
"Charge Account Guidelines" shall mean the policies and
procedures of Saks, the Bank and the Servicer relating to customers'
Accounts, including, without limitation, the policies and procedures
for determining the creditworthiness of charge account customers, the
extension of credit to charge account customers, the terms on which
repayments are required to be made, and relating to the maintenance of
charge accounts and collection of charge account receivables, as such
policies and procedures, as applicable, may be amended from time to
time.
"Saks" shall mean Saks & Company, a New York corporation, in
its capacity as an originator of the Receivables and as a seller of the
Receivables pursuant to a Receivables Purchase Agreement, and following
the contribution of the open end credit Accounts to the Bank, shall
include the Bank as the holder of such open end credit Accounts, as an
originator or acquirer of Receivables and as a seller of the
Receivables pursuant to a Receivables Purchase Agreement.
"Receivables Purchase Agreement" shall mean, as the context
may require, the Third Amended and Restated Receivables Purchase
Agreement, dated as of April 25, 1996 between Saks and SFA Finance
Company, and the Receivables Purchase Agreement dated as of September
17, 1998, between the Seller and the
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Bank, substantially in the form of Exhibit B hereto, as such agreements
may be amended, supplemented, restated or otherwise modified from time
to time.
"Servicer" shall mean initially Saks & Company, a New York
corporation, and its permitted successors and assigns, and thereafter
any Person appointed as successor as herein provided to service the
Receivables, but shall not include the Bank.
(c) The Pooling and Servicing Agreement is hereby amended by amending
and restating clause (v) of the definition of "Eligible Account" contained in
Section 1.1 to read in its entirety as follows:
(v) such Account was originated or acquired by Saks:
(d) The Pooling and Servicing Agreement is amended by amending and
restating Section 2.5(f) thereof to read in its entirety as follows:
(f) Finance Charges and Other Fees. The Seller agrees that,
except as otherwise required by any Requirement of Law or as is
reasonably deemed by Saks to be necessary to maintain the credit card
business relating to credit cards issued to customers of Saks &
Company, the Seller shall maintain Saks' commitment as set forth in the
Receivables Purchase Agreement, that Saks shall not reduce at any time
(x) the finance charges assessed in respect of any Accounts, or (y) any
other fees charged on any of the Accounts if, as a result of such
reduction, the Servicer reasonably expects that the Portfolio Yield
with respect to any Series as of such date, after giving effect to such
reduction, would be less than the Base Rate for such Series.
(e) The Pooling and Servicing Agreement is amended by amending and
restating subsection (i) of Section 2.5(q) thereof to read in its entirety as
follows:
(i) Maintain its own deposit account or accounts, separate
from those of any Affiliate, with commercial banking institutions. The
funds of the Seller will not be diverted to any other Person or for
other than corporate uses of the Seller, nor will such funds be
commingled with the funds of Saks or any other subsidiary of Saks;
provided, however, in the event that payments received on the Accounts
in stores or at the corporate offices of the Servicer or through
electronic funds transfers are not deposited in an account of the
Seller until the second Business Day after receipt, until such deposit
such payments may be commingled with funds of Saks or any of its
Affiliates.
(f) The Pooling and Servicing Agreement is amended by amending and
restating the first two sentences of Section 3.1(a) thereof as follows:
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Saks & Company agrees to act as the Servicer under this Agreement. The
Investor Certificateholders by their acceptance of the Investor
Certificates consent to any affiliate of Saks & Company acting as
subservicer.
SECTION 2. AMENDMENT OF EXHIBIT B UPON EFFECTIVE TIME OF MERGER.
Subject to the satisfaction of the conditions precedent contained in Section 4
hereof, the Pooling and Servicing Agreement shall be deemed to be amended upon
the Effective Time of the Merger by adding a new Exhibit B-1 in the form
attached hereto.
SECTION 3. REPRESENTATIONS AND WARRANTIES. Each of the Seller and the
Servicer represents and warrants that:
(a) The execution, delivery and performance of this Amendment have been
duly authorized by all necessary corporate action on the part of the Seller, the
Servicer and as to the Receivables Purchase Agreement, by the Bank. All
appraisals, authorizations, consents, orders or other actions of any Person or
of any governmental body or official required in connection with the execution
and delivery of this Amendment, the performance of the transactions contemplated
hereby, and the fulfillment of or terms hereof, have been obtained.
(b) This Amendment, and the Pooling and Servicing Agreement and the
Receivables Purchase Agreement, as amended by this Amendment, each constitute
the legal, valid and binding obligation of the Seller, the Servicer and the
Bank, to the extent they are parties to such agreements, enforceable against
such Persons in accordance with their respective terms, except as enforceability
may be limited by Debtor Relief Laws and except as such enforceability may be
limited by general principles of equity (whether considered in a proceeding in
law or in equity).
SECTION 4. CONDITIONS PRECEDENT. This Amendment shall become effective
as of its date, provided that all of the following conditions are met:
(a) The Servicer shall have provided an Officer's Certificate to the
Trustee to the effect that this Amendment will not materially and adversely
affect the interests of any Certificateholder;
(b) Delivery of an Opinion of Counsel to the effect that this Amendment
will not cause the Trust to be characterized for Federal or New York State
income or franchise tax purposes as an association (or publicly traded
partnership) taxable as a corporation or have any material adverse effect on the
characterization as indebtedness for Federal and New York State income or
franchise tax purposes of any outstanding Investor Certificate that was
characterized as indebtedness upon its issuance;
(c) The Servicer shall have provided at least ten Business Days' prior
written notice to each Rating Agency of this Amendment;
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(d) The Servicer shall have received written confirmation from each
Rating Agency to the effect that the rating of any Series or any Class of any
Series will not be reduced or withdrawn as a result of this Amendment;
(e) If requested by the Trustee, the Trustee shall have received an
Opinion of Counsel from the Seller or the Servicer to the effect that this
Amendment complies with all requirements of the Pooling and Servicing Agreement.
SECTION 5. EFFECT ON THE POOLING AND SERVICING AGREEMENT. Except as
expressly herein amended, the terms and conditions of the Pooling and Servicing
Agreement remain in full force and effect. In all respects not inconsistent with
the terms and provisions of this Amendment, the provisions of the Pooling and
Servicing Agreement are hereby ratified, approved and confirmed.
SECTION 6. HEADINGS. The captions in this Amendment are for convenience
of reference only and shall not define or limit the provisions hereof.
SECTION 7. COUNTERPARTS. This Amendment may be executed in
counterparts, each of which shall constitute an original but all of which, when
taken together, shall constitute but one and the same instrument.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 9. DEFINITIONS. Capitalized terms not otherwise defined herein
have the respective meanings given them in the Pooling and Servicing Agreement.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to Pooling and Servicing to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first written above.
SFA FINANCE COMPANY,
as Seller
By:
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Name:
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Title:
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SAKS & COMPANY,
as Servicer
By:
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Name:
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Title:
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BANKERS TRUST COMPANY,
as Trustee
By:
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Name:
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Title:
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EXHIBIT B
FORM OF FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
B-1