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Exhibit 10.47
SFA FINANCE COMPANY
SELLER
SAKS & COMPANY
SERVICER
AND
BANKERS TRUST COMPANY
TRUSTEE
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AMENDMENT NO. 2
DATED AS OF DECEMBER 17, 1998
TO THE
POOLING AND SERVICING AGREEMENT
DATED AS OF APRIL 25, 1996
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THIS AMENDMENT NO. 2 ("Amendment") dated as of December 17, 1998, to
the Pooling and Servicing Agreement, dated as of April 25, 1996, as heretofore
amended and supplemented (the "Pooling and Servicing Agreement"), is by and
among SFA Finance Company, as Seller (the "Seller"), Saks & Company, as Servicer
(the "Servicer"), and Bankers Trust Company, as trustee (the "Trustee").
Capitalized terms used and not otherwise defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
W I T N E S S E T H
WHEREAS, the parties hereto are authorized by Section 13.1(b) of the
Pooling and Servicing Agreement to enter into this Amendment.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, in the Pooling and Servicing Agreement and other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. AMENDMENTS TO THE POOLING AND SERVICING AGREEMENT
1.1 The reporting obligations set out in Sections 3.4(b) and
3.5 of the Pooling and Servicing Agreement shall be deleted in their entirety
and replaced by the following provisions:
"Section 3.4(b) Monthly Servicer's Statement. Unless
otherwise stated in the related Supplement with respect to any
Series, on each Determination Date the Servicer shall prepare,
and within two days thereafter shall deliver to the Trustee,
the Paying Agent, any Rating Agency and any Enhancement
Provider, a report and certificate of a Servicing Officer
substantially in the form of Exhibit A to Amendment No. 2 to
this Agreement dated as of December 17, 1998 ("Amendment No.
2) (the "Monthly Servicer's Certificate").
Section 3.5 Annual Servicer's Certificate. The
Servicer will deliver to the Trustee, any Enhancement Provider
and any Rating Agency on or before June 30 of each calendar
year, beginning with June 30, 1999, an Officer's Certificate
substantially in the form of Exhibit B to Amendment No. 2 (a)
stating that a review of the activities of the Servicer during
the preceding Fiscal Year and of its performance under this
Agreement was made under the supervision of the officer
signing such certificate and (b) stating that to the best of
such officer's knowledge, based on such review, either there
has occurred no event which, with the giving of notice or
passage of time or both, would constitute a Servicer Default
and the Servicer has fully performed all its obligations under
this Agreement throughout such year, or, if there has occurred
such an event, specifying each such event known to such
officer and the nature and status thereof. A copy of such
Officer's Certificate may be obtained by any
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Investor Certificateholder by a request in writing to the
Trustee addressed to the Corporate Trust Office.
1.2 Section 13.2(d)(ii) of the Pooling and Servicing Agreement
shall be deleted in its entirety and replaced by the following provision:
"(ii) on or before June 30 of each year,
beginning with June 30, 1999, an Opinion of Counsel,
dated as of a date within 90 days of such day,
substantially in the form of Exhibit C to Amendment
No. 2."
SECTION 2. REPRESENTATIONS AND WARRANTIES
Each of the Seller and the Servicer represents and warrants that:
(a) Its execution, delivery and performance of this Amendment are
within its corporate powers, have been duly authorized by all necessary
corporate action and do not require any consent or approval which has not been
obtained.
(b) This Amendment and the Pooling and Servicing Agreement as amended
hereby are legal, valid and binding obligations of it, enforceable in accordance
with their respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally or by general equitable principles.
SECTION 3. CONDITIONS PRECEDENT
This Amendment shall become effective as of its date, provided that all
of the following conditions are met:
(a) This Amendment shall have been executed and delivered by the
parties hereto;
(b) The Servicer shall have provided an Officer's Certificate to the
Trustee to the effect that (i) this Amendment will not materially and adversely
affect the interests of any Certificateholder, (ii) the Servicer provided at
least ten Business Days' prior written notice to each Rating Agency of this
Amendment and received written confirmation from each Rating Agency to the
effect that the rating of any Series rated by such Rating Agency will not be
reduced or withdrawn as a result of this Amendment, and (iii) all of the
conditions precedent to the effectiveness of this Amendment have been satisfied;
and
(c) The Seller and Servicer shall have provided Opinions of Counsel to
the Trustee to the effect that (i) this Amendment shall not cause the Trust to
be characterized for Federal income tax purposes as an association taxable as a
corporation, or otherwise have any material adverse impact on the Federal income
taxation of any outstanding
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Series of Investor Certificates or any Certificate Owner, and (ii) this
Amendment complies with all the requirements of the Pooling and Servicing
Agreement.
SECTION 4. MISCELLANEOUS
(a) Applicability of the Pooling and Servicing Agreement
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.
(b) Headings
The captions in this Amendment are for convenience of reference only
and shall not define or limit the provisions hereof.
(c) 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.
(d) Governing Law
THIS AMENDMENT SHALL BE 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.
(e) The Trustee
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the sufficiency of this Amendment or for or in respect of the
recitals contained herein, all of which recitals are made solely by the Seller
and the Servicer.
[Signatures on next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
SFA FINANCE COMPANY,
as Seller
By: ____________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
SAKS & COMPANY,
as Servicer
By: ____________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
BANKERS TRUST COMPANY,
as Trustee
By: ____________________________________
Name:
Title:
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EXHIBIT A
MONTHLY SERVICER'S CERTIFICATE
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EXHIBIT B
FORM OF ANNUAL SERVICER'S CERTIFICATE
SAKS & COMPANY
SAKS MASTER TRUST
The undersigned, a duly authorized representative of Saks & Company
("Saks"), as Servicer, pursuant to the Pooling and Servicing Agreement dated as
of April 25, 1996 , as heretofore amended (the "Pooling and Servicing
Agreement"), between SFA Finance Company, as Seller, Saks, as Servicer, and
Bankers Trust Company, as Trustee, does hereby certify that:
1. Capitalized terms used but not defined in this
Officer's Certificate have their respective meanings
set forth in the Pooling and Servicing Agreement.
2. As of the date hereof, Saks is the Servicer under the
Pooling and Servicing Agreement.
3. The undersigned is duly authorized pursuant to the
Pooling and Servicing Agreement to execute and
deliver this Officer's Certificate to the Trustee.
4. This Officer's Certificate is delivered pursuant to
Section 3.5 of the Pooling and Servicing Agreement.
5. A review of the activities of the Servicer during the
fiscal year ended ________ and of its performance
under the Pooling and Servicing Agreement was made
under my supervision.
6. Based on such review, to the best of the
undersigned's knowledge, the Servicer has fully
performed all its obligations under the Pooling and
Servicing Agreement throughout such fiscal year and
no event which, with the giving of notice or passage
of time or both, would constitute a Servicer Default
has occurred or is continuing except as set forth in
paragraph 7 below.
7. The following is a description of each Servicer
Default under the provisions of the Pooling and
Servicing Agreement known to me to have been made
during the fiscal year ended _________, which sets
forth in detail the (i) nature of each such Servicer
Default, (ii)
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the action taken by the Servicer, if any, to remedy
each such Servicer Default and (iii) the current
status of each such Servicer Default:
IN WITNESS WHEREOF, the undersigned, a duly authorized Servicing
Officer of the Servicer, has duly executed this Officer's Certificate this
________ day of __________, ____.
SAKS & COMPANY,
as Servicer
By:________________________________
Name:
Title:
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EXHIBIT C
FORM OF ANNUAL OPINION OF COUNSEL
PROVISIONS TO BE INCLUDED IN ANNUAL OPINION OF COUNSEL
The Opinion set forth below, which is to be delivered pursuant to
subsection 13.2(d)(ii) of the Pooling and Servicing Agreement, may be subject to
certain qualifications, assumptions, limitations and exceptions taken or made in
the Opinion of Counsel delivered on the Initial Closing Date with respect to
similar matters.
No filing or other action, other than such filing or action described
in such Opinion, is necessary from the date of such Opinion through _________ of
the following year to continue the perfected status of interest of the Trust in
the collateral described in the financing statements referred to in such
opinion.
