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RECEIVABLES PURCHASE AGREEMENT
among
XXXX, INC.,
as Seller
and
BELK ACCOUNTS RECEIVABLE LLC,
as Purchaser
and
THE XXXX CENTER, INC.
as Servicer
Dated as of May 3, 1999
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RECEIVABLES PURCHASE AGREEMENT
This RECEIVABLES PURCHASE AGREEMENT, dated as of May 3, 1999 (as
amended, supplemented or otherwise modified and in effect from time to time,
this "Agreement"), among XXXX, INC., a Delaware corporation, as seller (in such
capacity, the "Seller"), XXXX ACCOUNTS RECEIVABLE LLC, a North Carolina limited
liability company, as purchaser (in such capacity, the "Purchaser"), and THE
BELK CENTER, INC., a North Carolina corporation, as servicer (the "Servicer" or
"Belk Center").
W I T N E S S E T H :
WHEREAS, the Purchaser desires to purchase certain accounts receivable
existing on the Closing Date generated in the normal course of the business of
Seller or a Designated Seller pursuant to certain revolving consumer credit card
accounts;
WHEREAS, the Seller desires to sell and assign from time to time such
accounts receivable to the Purchaser upon the terms and conditions hereinafter
set forth;
WHEREAS, the Servicer has agreed to service the accounts receivable
sold to the Purchaser by the Seller hereunder;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed by and among
the Purchaser, the Seller and the Servicer as follows:
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ARTICLE 1
DEFINITIONS
SECTION 1.1. Definitions. All capitalized terms used herein shall have
the meanings specified herein or, if not so specified, the meaning specified in,
or incorporated by reference into, the Note Purchase Agreement, and shall
include in the singular number the plural and in the plural number the singular:
"Agent" shall mean NationsBank, N.A., as agent on behalf of Enterprise
and the Bank Investors pursuant to the Note Purchase Agreement, and any
successor thereto appointed pursuant to Article IX thereof.
"Bank Investors" shall have the meaning specified in the Note Purchase
Agreement.
"Belk Center" shall mean The Belk Center, Inc.
"Closing Date" shall mean May 3, 1999.
"Designated Seller" shall have the meaning specified in the Note
Purchase Agreement.
"Eligible Receivable" shall have the meaning specified in the Note
Purchase Agreement.
"Enterprise" shall mean Enterprise Funding Corporation, a Delaware
corporation, and its successors and assigns.
"Event of Bankruptcy" shall have the meaning specified in the Note
Purchase Agreement.
"Guaranty Agreement" shall mean the Guaranty and Security Agreement
dated as of May 3, 1999 by and among Belk Accounts Receivable LLC, Belk Center,
as Servicer, Seller, and NationsBank, N.A., as Agent and as a Bank Investor, as
such agreement may be amended, modified or supplemented from time to time.
"Non-Past Due Receivable" shall mean any Receivable other than a Past
Due Receivable.
"Note Purchase Agreement" shall mean the Note Purchase Agreement, dated
as of May 3, 1999, by and among the Seller, Belk Center, as Servicer, Enterprise
Funding Corporation and NationsBank, N.A., as Agent and Bank Investor, as such
agreement may be amended, modified or supplemented from time to time.
"Outstanding Principal Balance" shall have the meaning specified in the
Note Purchase Agreement.
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"Past Due Receivable" means any Receivable that is more than 150 days
past due as of the Closing Date.
"Purchase Price" shall have the meaning set forth in Section 3.1
hereof.
"Purchaser" shall mean Belk Accounts Receivable LLC, and its successors
and assigns hereunder.
"Receivable" shall mean, for purposes of this Agreement, the
indebtedness owed to the Seller or to any Designated Seller by any Obligor under
an Account (whether such Account is in existence as of the Cut-Off Date or
thereafter created), whether constituting an account, chattel paper, instrument,
investment property or general intangible, arising in connection with the sale
or lease of merchandise or the rendering of services, and which in all cases
shall include the right to payment of any Finance Charges and other obligations
of such Obligor with respect thereto.
"Related Security" means with respect to any Receivable, all of the
Seller's rights, title and interest in, to and under:
(1) all of the Seller's interest, if any, in the
merchandise (including returned or repossessed merchandise),
if any, the sale of which gave rise to such Receivable;
(2) all other security interests or liens and
property subject thereto from time to time, if any, purporting
to secure payment of such Receivable, whether pursuant to the
Account related to such Receivable or otherwise, together with
all financing statements signed by an Obligor describing any
collateral securing such Receivable;
(3) all guarantees, indemnities, warranties,
insurance (and proceeds and premium refunds thereof) or other
agreements or arrangements of any kind from time to time
supporting or securing payment of such Receivable whether
pursuant to the Account related to such Receivable or
otherwise;
(4) all Records related to such Receivable; and
(5) all Proceeds of any of the foregoing.
"Relevant UCC" shall mean the Uniform Commercial Code as in effect in
the State of New York; provided, however, that if by reason of mandatory
provisions of law, the perfection or non-perfection of a security interest in
any property conveyed hereunder is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than the State of New York, "UCC" shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
the provisions hereof relating to such perfection or non-perfection.
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"Secured Obligations" shall have the meaning set forth in Section
2.1(d) hereof.
"Termination Date" shall have the meaning specified in Section 4.1.
SECTION 1.2. Other Terms. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles. All terms used in Article 9 of the Relevant UCC, and not
specifically defined herein, are used herein as defined in such Article 9.
SECTION 1.3. Computation of Time Periods. Unless otherwise stated in
this Agreement, in the computation of a period of time from a specified date to
a later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding."
ARTICLE 2
PURCHASE, CONVEYANCE AND SERVICING OF RECEIVABLES
SECTION 2.1. Sale. (a) Upon the terms and subject to the conditions set
forth herein, the Seller hereby sells, assigns, transfers and conveys to the
Purchaser, and the Purchaser hereby purchases from the Seller, on the terms and
subject to the conditions specifically set forth herein, all of the Seller's
right, title and interest, whether now owned or hereafter acquired, in, to and
under the Past Due Receivables outstanding on the Closing Date, together with
all Related Security and Collections with respect thereto and all proceeds of
the foregoing. The foregoing sale, assignment, transfer and conveyance does not
constitute an assumption by the Purchaser of any obligations of the Seller or
any other Person to Obligors or to any other Person in connection with the
Receivables or under any Related Security, Account Agreement or other agreement
and instrument relating to the Receivables. With respect to Receivables sold by
the Seller to Purchaser on the Closing Date, such Receivables shall be deemed to
be all the Past Due Receivables of the Seller that exist as of the close of
business on the Closing Date.
(1) In connection with the foregoing sale, the Seller agrees
to deliver to the Purchaser on or prior to the Closing Date, a
financing statement or statements with respect to the Receivables and
the other property described in Section 2.1(a) sold by the Seller
hereunder meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect and
protect the interests of the Purchaser created hereby under the
Relevant UCC against all creditors of and purchasers from the Seller.
Any expenses of the filing of such financing statements shall be borne
solely by the Seller.
(2) The Seller agrees that from time to time, at its expense,
it will promptly execute and deliver all instruments and documents and
take all actions as may be necessary or as the Purchaser may reasonably
request in order to perfect or protect the interest of the Purchaser in
the Receivables purchased hereunder or to enable the
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Purchaser to exercise or enforce any of its rights hereunder. Without
limiting the foregoing, the Seller will, in order to accurately reflect
this purchase and sale transaction, execute and file such financing or
continuation statements or amendments thereto or assignments thereof
(as permitted pursuant hereto) as may be requested by the Purchaser,
and upon the request of the Purchaser, xxxx its master data processing
records and other documents with a legend describing the purchase by
the Purchaser of the Receivables purchased hereunder, and the
subsequent grant of a security interest therein to the Agent pursuant
to the Guaranty Agreement, and stating "THE RECEIVABLES IN THESE FILES
HAVE BEEN ACQUIRED BY AND CONVEYED TO BELK ACCOUNTS RECEIVABLE LLC, AND
SUCH RECEIVABLES HAVE BEEN PLEDGED BY BELK ACCOUNTS RECEIVABLE LLC TO
NATIONSBANK, N.A., AS AGENT FOR THE BENEFIT OF ENTERPRISE FUNDING
CORPORATION AND THOSE CERTAIN BANK INVESTORS PURSUANT TO THE GUARANTY
AND SECURITY AGREEMENT, DATED AS OF MAY 3, 1999, AS AMENDED FROM TIME
TO TIME, AMONG BELK ACCOUNTS RECEIVABLE LLC, THE BELK CENTER, INC. AND
NATIONSBANK, N.A." The Seller shall, upon request of the Purchaser,
obtain such additional search reports as the Purchaser shall request.
To the fullest extent permitted by applicable law, the Purchaser shall
be permitted to sign and file continuation statements and amendments
thereto and assignments thereof without the Seller's signature. Carbon,
photographic or other reproduction of this Agreement or any financing
statement shall be sufficient as a financing statement.
(3) It is the express intent of the Seller and the Purchaser
that the conveyance of the Receivables by the Seller to the Purchaser
pursuant to this Agreement be construed as a sale of such Receivables
by the Seller to the Purchaser. Further, it is not the intention of the
Seller or the Purchaser that such conveyance be deemed a grant of a
security interest in such Receivables by the Seller to the Purchaser to
secure a debt or other obligation of the Seller. However, in the event,
that, notwithstanding the express intent of the parties, such
Receivables are construed to constitute property of the Seller, then
(i) this Agreement also shall be deemed to be, and hereby is, a
security agreement within the meaning of the Relevant UCC; and (ii) the
conveyance by the Seller provided for in this Agreement shall be deemed
to be, and the Seller hereby grants to the Purchaser, a security
interest in, to and under all of the Seller's right, title and interest
in, to and under the Past Due Receivables outstanding on the Closing
Date and thereafter owned by the Seller, together with all Related
Security and Collections with respect thereto and all proceeds of the
foregoing, to secure the rights of the Purchaser set forth in this
Agreement or as may be determined in connection therewith by applicable
law (collectively, the "Secured Obligations"). The Seller and the
Purchaser shall, to the extent consistent with this Agreement, take
such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in such Receivables, such security
interest would be deemed to be a perfected security interest in favor
of the Purchaser under applicable law and will be maintained as such
throughout the term of this Agreement.
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SECTION 2.2. Servicing of Receivables. The servicing, administering and
collection of the Receivables sold hereunder shall be conducted by Belk Center,
which hereby agrees to perform, take or cause to be taken all such action as may
be necessary or advisable to collect each such Receivable from time to time, all
in accordance with applicable laws, rules and regulations and with the care and
diligence which Belk Center employs in servicing similar receivables, in
accordance with the Credit Guidelines. The Purchaser hereby appoints Belk Center
as its agent to enforce the Purchaser's rights and interests in, to and under
the Receivables sold hereunder, the Related Security and the Collections with
respect thereto. Belk Center shall hold in trust for the Purchaser, in
accordance with its interests, all Records which evidence or relate to such
Receivables or Related Security, Collections and proceeds with respect thereto.
Notwithstanding anything to the contrary contained herein, from and after the
occurrence of a Termination Event (other than a Termination Event described in
Section 6.1(o) or 6.1(p) of the Guaranty Agreement) or a Servicer Default (each
as defined in the Guaranty Agreement), the Agent or Enterprise shall have the
absolute and unlimited right to terminate Belk Center's servicing activities
described in this Section 2.2. In consideration of the foregoing, the Purchaser
agrees to pay Belk Center a servicing fee of 2.00% per annum on the aggregate
Outstanding Principal Balance of Receivables sold, payable monthly, as well as
an amount equal to all late fees, returned check or NSF charges and similar
charges received from Obligors with respect to Receivables, for its performance
of the duties and obligations described in this Section 2.2.
ARTICLE 3
CONSIDERATION AND PAYMENT
SECTION 3.1. Purchase Price. (a) The Purchase Price for the Receivables
and related property conveyed on the Closing Date to the Purchaser by the Seller
under this Agreement shall be a dollar amount equal to the product of the
aggregate Outstanding Principal Balance of such Receivables.
SECTION 3.2. Payment of Purchase Price. The Purchase Price for the
Receivables sold on the Closing Date shall be paid by payment of cash in
immediately available funds to the Seller.
ARTICLE 4
TERM AND TERMINATION
SECTION 4.1. Term. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue in full force and effect until
the date following the earlier of (i) the date designated by the Purchaser or
the Seller as the termination date at any time following sixty (60) day's
written notice to the other (with a copy thereof to the Agent), (ii) the close
of business on the third Business Day following a conveyance of Receivables by
the Seller to the Purchaser for which the Purchaser does not pay the Purchase
Price in accordance with the
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provisions hereof, (iii) upon the occurrence of an Event of Bankruptcy with
respect to the Seller, (iv) the date on which either the Purchaser or the Seller
defaults on its obligations hereunder, which default continues unremedied for
more than thirty (30) days after written notice, or (v) upon the occurrence of
an Event of Bankruptcy with respect to the Purchaser (any such date described
above, being a "Termination Date") ; provided, however, that the termination of
this Agreement pursuant to this Section 4.1 shall not discharge any Person from
any obligations incurred prior to such termination, including, without
limitation, any obligations to make any payments with respect to the interest of
the Purchaser in any Receivable sold prior to such termination.
SECTION 4.2. Effect of Termination. No termination or rejection or
failure to assume the executory obligations of this Agreement in any Event of
Bankruptcy with respect to the Seller or the Purchaser shall be deemed to impair
or affect the obligations pertaining to any executed sale or executed
obligations. Without limiting the foregoing, prior to termination, the failure
of the Seller to deliver computer records of Receivables or any reports
regarding the Receivables shall not render such transfer or obligation
executory, nor shall the continued duties of the parties pursuant to Section 5.1
of this Agreement render an executed sale executory.
ARTICLE 5
MISCELLANEOUS PROVISIONS
SECTION 5.1. Amendment. This Agreement and the rights and obligations
of the parties hereunder may not be changed orally, but only by an instrument in
writing signed by the Purchaser and the Seller and consented to in writing by
the Agent. Any reconveyance executed in accordance with the provisions hereof
shall not be considered an amendment to this Agreement.
SECTION 5.2. GOVERNING LAW; Submission to Jurisdiction.
(1) THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
(2) The parties hereto hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Western
District of North Carolina and of any North Carolina state court
sitting in Mecklenburg County for purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions
contemplated hereby. Each party hereto hereby irrevocably waives, to
the fullest extent it may effectively do so, any objection which it may
now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought
in such a court has been brought in an inconvenient forum. Nothing in
this Section 5.2 shall affect the right of the Purchaser to bring any
other action or proceeding against the Seller or its property in the
courts of other jurisdictions.
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SECTION 5.3. Notices. Except as provided below, all communications and
notices provided for hereunder shall be in writing (including telecopy or
electronic facsimile transmission or similar writing) and shall be given to the
other party at its address or telecopy number set forth below or at such other
address or telecopy number as such party may hereafter specify for the purposes
of notice to such party. Each such notice or other communication shall be
effective (i) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified in this Section 5.3 and confirmation is received, (ii)
if given by mail three Business Days following such posting, postage prepaid,
U.S. certified or registered, (iii) if given by overnight courier, one Business
Day after deposit thereof with a national overnight courier service, or (iv) if
given by any other means, when received at the address specified in this Section
5.3.
If to the Seller:
Xxxx, Inc.
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000, ext: 4273
Telecopy: (000) 000-0000
Attn: Xxxxx X. Xxxxx
with a copy to:
NationsBank, N.A.
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx, Structured Finance
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Purchaser:
Xxxx Accounts Receivable LLC
c/o Belk, Inc.
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000, ext: 4273
Telecopy: (000) 000-0000
Attn: Xxxxx X. Xxxxx
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with a copy to:
NationsBank, N.A.
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XX-000-00-00
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx, Structured Finance
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Servicer:
The Belk Center, Inc.
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000, extension 7000
Telecopy: (000) 000-0000
Attn: Oakley Xxxxx
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
SECTION 5.4. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
SECTION 5.5. Assignment. This Agreement may not be assigned by the
parties hereto, except that the Purchaser may assign its rights hereunder
pursuant to the Guaranty Agreement to the Agent, for the benefit of Enterprise
and the Bank Investors, and Enterprise may assign any or all of its rights to
any Liquidity Provider and may grant a security interest in its rights hereunder
to the Collateral Agent. The Purchaser hereby notifies the Seller that (and the
Seller hereby acknowledges that), pursuant to the Guaranty Agreement, the
Purchaser has assigned its rights hereunder to the Agent, for the benefit of
Enterprise and the Bank Investors.
SECTION 5.6. Further Assurances. The Purchaser and the Seller agree to
do and perform, from time to time, any and all acts and to execute any and all
further instruments required, or reasonably requested by the other party, more
fully to effect the purposes of this Agreement, including, without limitation,
the execution of any financing statements or continuation statements or
equivalent documents relating to the Receivables for filing under the provisions
of the Relevant UCC or other laws of any applicable jurisdiction.
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SECTION 5.7. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Purchaser, the Seller or the Agent,
any right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privilege provided by law.
SECTION 5.8. Counterparts. This Agreement may be executed in two or
more counterparts including telecopy transmission thereof (and by different
parties on separate counterparts) , each of which shall be an original, but all
of which together shall constitute one and the same instrument.
SECTION 5.9. Binding Effect. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective successors and
permitted assigns. The Agent, on behalf of Enterprise and the Bank Investors, is
an intended third-party beneficiary of the Seller's obligations hereunder.
SECTION 5.10. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
SECTION 5.11. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
[Signatures appear on the following page.]
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IN WITNESS WHEREOF, the Purchaser, the Seller and the Servicer each
have caused this Receivables Purchase Agreement to be duly executed by their
respective officers as of the day and year first above written.
XXXX, INC.,
AS THE SELLER
By:
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Name:
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Title:
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XXXX ACCOUNTS RECEIVABLE
LLC, AS PURCHASER
By:
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Name:
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Title:
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THE XXXX CENTER, INC.,
AS SERVICER
By:
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Name:
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Title:
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SIGNATURE PAGE 1
