EXECUTION COPY
MFI RECEIVABLES PURCHASE AGREEMENT
BETWEEN
DILLARD ASSET FUNDING COMPANY
as Purchaser
AND
MERSCO FACTORS, INC.
DATED AS OF AUGUST 14, 1998
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS.................................................................. 1
SECTION 1.1 Certain Defined Terms..................................................................... 1
SECTION 1.2 Other Definitional Provisions............................................................. 1
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES....................................................... 2
SECTION 2.1 Purchase and Sale of Receivables.......................................................... 2
SECTION 2.2 The Closings.............................................................................. 2
SECTION 2.3 The Purchase Price........................................................................ 2
ARTICLE III
REPRESENTATIONS AND WARRANTIES AND COVENANTS................................................. 2
SECTION 3.1 Representations and Warranties Regarding Purchased Assets................................. 2
SECTION 3.2 Representations and Warranties Regarding MFI.............................................. 3
SECTION 3.3 Representations and Warranties of the Purchaser........................................... 5
ARTICLE IV
CONDITIONS................................................................... 6
SECTION 4.1 Conditions Precedent to the Purchaser's Purchase of Receivables........................... 6
SECTION 4.2 Conditions to Obligation of MFI........................................................... 7
ARTICLE V
ADDITIONAL AGREEMENTS............................................................. 7
SECTION 5.1 Initial UCC Filings....................................................................... 7
SECTION 5.2 Computer Files Marked..................................................................... 8
SECTION 5.3 Protection of Title....................................................................... 8
SECTION 5.4 Other Liens or Interests.................................................................. 8
SECTION 5.5 Indemnification........................................................................... 8
SECTION 5.6 Repurchase Events......................................................................... 9
SECTION 5.7 Further Assignments....................................................................... 9
SECTION 5.8 Sale Treatment............................................................................ 10
ARTICLE VI
MISCELLANEOUS PROVISIONS........................................................... 10
SECTION 6.1 Amendment................................................................................. 10
SECTION 6.2 Survival.................................................................................. 10
SECTION 6.3 Notices................................................................................... 10
SECTION 6.4 GOVERNING LAW............................................................................. 11
SECTION 6.5 Waivers................................................................................... 11
SECTION 6.6 Costs and Expenses........................................................................ 11
SECTION 6.7 Confidential Information.................................................................. 11
SECTION 6.8 Headings.................................................................................. 11
SECTION 6.9 Counterparts.............................................................................. 12
SECTION 6.10 Severability of Provisions............................................................... 12
SECTION 6.11 Further Assurances....................................................................... 12
SECTION 6.12 No Third-Party Beneficiaries............................................................. 12
SECTION 6.13 Merger or Consolidation of, or Assumption of the Obligations of,
MFI...................................................................................... 12
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SECTION 6.14 Merger and Integration................................................................... 13
SECTION 6.15 No Petition Covenants.................................................................... 13
SECTION 6.16 No Recourse to Owner Trustee............................................................. 13
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MFI RECEIVABLES PURCHASE AGREEMENT
This DNB Receivables Purchase Agreement (the "Agreement") is
made as of August 14, 1998 by and between DILLARD ASSET FUNDING COMPANY, a
Delaware business trust (the "Purchaser"), and MERSCO FACTORS, INC., a Delaware
corporation ("MFI").
W I T N E S S E T H:
WHEREAS, the Purchaser desires to purchase Receivables and
related assets from MFI; and
WHEREAS, MFI is willing, on the terms, and subject to the
conditions set forth herein, to sell such Receivables and related assets to the
Purchaser.
NOW, THEREFORE, in consideration of the foregoing, the other
good and valuable consideration and the mutual terms and covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Defined Terms. Unless otherwise defined
herein, capitalized terms used in the above recitals and in this Agreement shall
have the respective meanings assigned them the Pooling and Servicing Agreement,
dated as of August 1, 1998 (as supplemented by the VFC 1998 Supplement, dated
August 14, 1998, among the Purchaser as transferor (in such capacity, the
"Transferor"), ▇▇▇▇▇▇▇ National Bank, as master servicer (in such capacity, the
"Master Servicer") and The Chase Manhattan Bank, as trustee (in such capacity,
the "Trustee"), the "Pooling and Servicing Agreement"), among the Transferor,
the Master Servicer and the Trustee, unless otherwise defined herein.
SECTION 1.2 Other Definitional Provisions. (a) Unless
otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in the Pooling and Servicing Agreement or any
certificate or other document made or delivered pursuant hereto or thereto.
(b) As used herein and in the Pooling and Servicing Agreement,
and in any certificate or other document made or delivered pursuant hereto,
accounting terms not defined in Section 1.1, and accounting terms partly defined
in Section 1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "thereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section and
subsection references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1 Purchase and Sale of Receivables. Subject to the
satisfaction of the conditions specified in Article IV, MFI hereby sells,
transfers, assigns and otherwise conveys to the Purchaser, without recourse, and
the Purchaser hereby purchases from MFI, all right, title and interest in, to
and under all Receivables then existing under the Accounts identified in the
list of Accounts (an "Account List") previously delivered to the Purchaser (as
defined below; such Receivables, the "MFI
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Receivables") and all monies, due or to become due with respect thereto as of
the close of the second Business Day preceding the date hereof (such as of date,
the "Cutoff Date"), all Finance Charge Receivables relating to such Accounts,
all proceeds of such Receivables and all Insurance Proceeds relating to such
Receivables (collectively, the "Purchased Assets").
SECTION 2.2 The Closings. The consummation of the purchase and
sale contemplated by Section 2.1 shall take place at such place and at such time
as MFI and the Purchaser may agree upon. This Agreement shall be effective as of
the date hereof (the "Closing Date") upon its execution by MFI and the
Purchaser.
SECTION 2.3 The Purchase Price. In consideration for the sale
to the Purchaser of the Purchased Assets on the Closing Date, the Purchaser
shall pay to MFI, on such Closing Date, an amount equal to the aggregate unpaid
principal balance of the MFI Receivables included in such Purchased Assets as of
the Cutoff Date for such Receivables. Such purchase price shall be paid to MFI
in immediately available funds.
ARTICLE III
REPRESENTATIONS AND WARRANTIES AND COVENANTS
SECTION 3.1 Representations and Warranties Regarding Purchased
Assets. (a) MFI represents and warrants to the Purchaser as follows with respect
to the MFI Receivables:
(i) Eligible Accounts. As of the Cutoff Date, each Account is
an Eligible Account and no selection procedures adverse to the
Purchaser have been employed in selecting the Accounts from among the
Eligible Accounts in the Bank Portfolio.
(ii) Eligible Receivables. (w) as of the Closing Date, each
MFI Receivable in an Account is an Eligible Receivable;
(x) as of the Closing Date, each MFI Receivable in an
Account has been conveyed to the Purchaser (1) free and clear
of any Lien of any Person claiming through or under MFI or any
of its Affiliates and (2) in compliance, in all material
respects, with all Requirements of Law applicable to MFI;
(y) as of the Closing Date, with respect to each MFI
Receivable in an Account, all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any
Governmental Authority required to be obtained, effected or
given by MFI in connection with the conveyance of such MFI
Receivable to the Purchaser have been duly obtained, effected
or given and are in full force and effect; and
(z) as of the Closing Date, the information regarding
such MFI Receivables and the Accounts related thereto set
forth in the related Account List is true and correct in all
material respects.
(b) This Agreement, when duly executed and delivered,
constitutes either:
(i) a valid transfer, assignment, set-over and
conveyance to the Purchaser of all right, title and interest
of MFI in, to and under the MFI Receivables and all proceeds
of such MFI Receivables and Insurance Proceeds relating
thereto, and such MFI Receivables and all proceeds thereof and
Insurance Proceeds relating thereto will be held by the
Purchaser free and clear of any Lien of any Person claiming
through or under MFI or any of its Affiliates; or
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(ii) a grant of a security interest (as defined in
the UCC) in such property to the Purchaser, which is
enforceable with respect to the MFI Receivables, the proceeds
thereof and Insurance Proceeds relating thereto upon execution
and delivery of this Agreement. If this Agreement constitutes
the grant of a security interest to the Purchaser in such
property, upon the filing of the financing statement described
in Section 5.1, the Purchaser shall have a first priority
perfected security interest in such property (subject to
Section 9-306 of the UCC).
SECTION 3.2 Representations and Warranties Regarding MFI. MFI
represents and warrants to the Purchaser as of the date hereof (and, as
applicable, with respect to the MFI Receivables), that:
(a) Organization and Good Standing. MFI has been duly
organized and is validly existing as a Delaware corporation in good
standing under the laws of Delaware, with power and authority to own
its properties and to conduct its business as such properties are
presently owned and such business is presently conducted, and had at
all relevant times, and now has, power, authority and legal right to
acquire and own the MFI Receivables.
(b) Due Qualification. MFI is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires such
qualification except to the extent that the failure to comply therewith
would not, in the aggregate, have a material adverse effect with
respect to MFI.
(c) Power and Authority. MFI has the corporate power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder and the execution, delivery and performance of
this Agreement have been duly authorized by MFI by all necessary
corporate action on the part of MFI. MFI has the corporate power and
authority to sell and assign to the Purchaser the Purchased Assets and
has duly authorized such transfers by all necessary corporate action on
the part of MFI.
(d) Binding Obligation. This Agreement, when duly executed and
delivered, shall constitute a legal, valid and binding obligation of
MFI enforceable against MFI in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(e) No Violation. The execution and delivery of this Agreement
by MFI and its performance of its obligations hereunder will not
violate any Requirements of Law or contractual obligation of MFI, and
will not result in, or require, the creation or imposition of any Lien
upon any of its property or assets pursuant to any such Requirements of
Law or contractual obligation.
(f) No Proceedings. There are no actions, proceedings or, to
MFI's knowledge, investigations pending or, to MFI's knowledge,
threatened, before any Governmental Authority (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement, or (iii)
seeking any determination or ruling that would reasonably be expected
to have a material adverse effect with respect to MFI.
(g) No Consent. Except as expressly contemplated by the
Pooling and Servicing Agreement, no consent or authorization of, filing
with, or other act by or in respect of, any Governmental Authority or
any other Person is required in connection with the execution,
delivery, performance, validity or enforceability against MFI of this
Agreement.
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(h) No Default. MFI is not in default under or with respect to
any of its contractual obligations which would have a material adverse
effect with respect to it.
(i) Taxes. No notice of any Lien in respect of unpaid taxes or
assessments has been filed by any taxing authority against, or
otherwise affecting the assets of, MFI or any of its subsidiaries and
remains in effect.
(j) ERISA. No notice of a Lien arising under Title I or Title
IV of ERISA has been filed under Section 6323(a) of the Code (or any
successor provision) against, or otherwise affecting the assets of MFI.
(k) Solvency. MFI is, and after giving effect to the
transactions contemplated to occur on such date, will be, solvent and
MFI is paying its debts as they become due. In addition, MFI after
giving effect to the transactions contemplated by this Agreement will
have adequate capital to conduct its business.
(l) Principal Place of Business. MFI's principal place of
business is located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and
there have been no other such locations during the previous five years.
(m) Name. MFI's legal name is as set forth herein, there has
been no name change in the last two years and MFI has no tradenames,
fictitious names, assumed names or "doing business as" names.
SECTION 3.3 Representations and Warranties of the Purchaser.
The Purchaser hereby represents and warrants to MFI as of the date hereof (and,
as applicable, with respect to the MFI Receivables), that:
(a) Organization and Good Standing. The Purchaser has been
duly organized and is validly existing as a business trust under the
laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are presently
owned and such business is presently conducted, and has the power,
authority and legal right to acquire and own the Purchased Assets.
(b) Due Qualification. The Purchaser is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals in all jurisdictions, in which the
ownership or lease of property or the conduct of its business requires
such qualification except to the extent that the failure to comply
therewith would not have a material adverse effect with respect to the
Purchaser.
(c) Power and Authority. The Purchaser has the power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder and the execution, delivery and performance of
this Agreement have been duly authorized by all necessary action on the
part of the Purchaser.
(d) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Purchaser enforceable against the
Purchaser in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditors' rights in general
and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(e) No Violation. The execution and delivery of this Agreement
by the Purchaser and its performance of its obligations hereunder will
not violate any Requirements of Law or
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contractual obligation of the Purchaser, and will not result in, or
require, the creation or imposition of any Lien upon any of its
property or assets pursuant to any such Requirements of Law or
contractual obligation, other than as contemplated by the Pooling and
Servicing Agreement.
(f) No Material Litigation. No litigation or proceeding or, to
the knowledge of the Purchaser, investigation of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of
the Purchaser, threatened by or against the Purchaser or against any of
its properties or revenues (i) with respect to the Pooling and
Servicing Agreement or any of the transactions contemplated thereby or
(ii) which would reasonably be expected to have a material adverse
effect with respect to the Purchaser.
(g) No Consent. Except as expressly contemplated by the
Pooling and Servicing Agreement, no consent or authorization of, or
filing with, or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the
execution, delivery, performance, validity or enforceability against
the Purchaser of this Agreement.
(h) Injunction. There is no injunction, writ, restraining
order or any other type of order which would adversely affect the
Purchaser's ability to perform its obligations hereunder.
(i) Solvency. The Purchaser is solvent and after giving effect
to the transactions contemplated herein will be solvent and the
Purchaser is paying all debts as they become due and after giving
effect to the transactions contemplated herein the Purchaser will have
adequate capital to conduct its business.
(j) Name. The Purchaser's legal name is as set forth herein
and the Purchaser has no tradenames, fictitious names, assumed names or
"doing business as" names.
ARTICLE IV
CONDITIONS
SECTION 4.1 Conditions Precedent to the Purchaser's Purchase
of Receivables. The obligation of the Purchaser to purchase from MFI the
Purchased Assets on the Closing Date is subject to the satisfaction of the
following conditions:
(a) Agreements. The Purchaser shall have received (i) this
Agreement, duly executed and delivered by MFI, (ii) the Mercantile
Termination Agreement, dated as of the date hereof, between MFI and
Mercantile Stores National Bank ("MSNB"), duly executed by MFI and MSNB
and (iii) certain UCC termination statements identified on Schedule 1
hereto, duly executed by MFI.
(b) Certificate of Incorporation; By-laws. The Purchaser shall
have received a true and complete copy of the certificate of
organization of MFI, certified as a true and correct copy thereof by
the Secretary of State of the State of Delaware, and a true and
complete copy of the by-laws of MFI, certified as a true and correct
copy thereof by the Secretary or an Assistant Secretary of MFI.
(c) Resolutions. The Purchaser shall have received copies of
duly adopted resolutions of the Board of Directors of MFI in form and
substance reasonably satisfactory to the Purchaser, authorizing the
execution, delivery and performance of this Agreement, the documents to
be delivered by MFI hereunder and the transactions contemplated hereby,
certified by the Secretary or an Assistant Secretary of MFI.
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(d) Incumbency Certificate. The Purchaser shall have received
a certificate as to the incumbency and signature of the officers of MFI
authorized to sign this Agreement on behalf of MFI.
(e) Representations and Warranties. The representations and
warranties of MFI contained in Sections 3.1 and 3.2 of this Agreement
or in any certificate delivered in connection with this Agreement
(other than those made as of a specified date specified therein) are
true and correct in all material respects and with the same force and
effect as though such representations and warranties had been made as
of such date.
SECTION 4.2 Conditions to Obligation of MFI. The obligation of
MFI to sell to the Purchaser the Purchased Assets to be sold hereunder is
subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations
and warranties of the Purchaser hereunder shall be true and correct on
such date.
(b) Purchase Price. The Purchaser shall have paid to MFI the
related purchase price as provided in Section 2.3 of this Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.1 Initial UCC Filings. Within two Business Days of
the Closing Date, MFI shall record and file, at its own expense, a UCC-1
financing statement in each jurisdiction in which required by applicable law,
executed by MFI as seller or debtor, naming the Purchaser as purchaser or
secured party, naming as collateral the Purchased Assets to be purchased and
sold hereunder from time to time, meeting the requirements of the laws of each
such jurisdiction and in such manner as is necessary to perfect under the UCC
the sale, transfer, assignment and conveyance to the Purchaser of such Purchased
Assets (to the extent constituting UCC collateral). MFI shall deliver a
file-stamped copy, or other evidence reasonably satisfactory to the Purchaser of
such filing, to the Purchaser as soon as available after such filing.
SECTION 5.2 Computer Files Marked. MFI shall, at its own
expense, within 10 Business Days of the date hereof, indicate in its computer
files that such Purchased Assets have been sold to the Purchaser pursuant to
this Agreement.
SECTION 5.3 Protection of Title.
(a) MFI shall execute and file such financing statements, and
cause to be executed and filed such continuation and other statements, all in
such manner and in such places as may be required by law fully to perfect and
preserve the sale hereunder to the Purchaser of the MFI Receivables and the
related Purchased Assets and in the proceeds thereof and hereby authorizes the
Purchaser to file financing statements and amendments thereto and continuation
statements relative to all or any part thereof without the signature of MFI
where permitted by law. MFI shall deliver to (or cause to be delivered) to the
Purchaser file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) Except in connection with the DNB Transactions (as defined
below), MFI shall not change its name, identity or corporate structure in any
manner that would, could or might make any financing statement or continuation
statement filed by MFI in accordance with Section 5.1 or 5.3(a) seriously
misleading within the meaning of Section 9-402(7) of the UCC, unless it shall
have given the Purchaser at least 60 days prior written notice thereof and shall
file such financing statements or
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amendments as may be necessary to continue the perfection of the Purchaser's
interest in all Purchased Assets sold hereunder.
(c) MFI hereby represents and warrants that its chief place of
business and principal executive office, and the place where its principal
records pertaining to the Receivables and the related Purchased Assets are kept,
is located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and there are no other
such locations. Except for any relocation resulting from the DNB Transactions,
MFI shall give the Purchaser at least 60 days prior written notice of any
relocation of its principal executive office if, as a result of such relocation,
the applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement. MFI shall at all times maintain each office from which it
services Receivables and its principal executive office within the United States
of America.
SECTION 5.4 Other Liens or Interests. Except for the
conveyances (i) hereunder and as contemplated by the Pooling and Servicing
Agreement or (ii) made in connection with the DNB Transactions, MFI shall not
sell, pledge, assign or transfer any Purchased Assets to any other Person, or
grant, create, incur, assume or suffer to exist any Lien thereon and MFI shall
defend the right, title and interest of the Purchaser in, to and under all
Purchased Assets sold hereunder against all claims of third parties claiming
through or under MFI.
SECTION 5.5 Indemnification. MFI shall indemnify the Purchaser
for any liability as a result of the failure of a Receivable transferred
hereunder to be originated in compliance with all requirements of law and for
any breach of any of its representations and warranties with respect thereto
contained herein unless such breach shall be cured in all material respects.
This indemnity obligation shall be in addition to any obligation that MFI may
otherwise have.
SECTION 5.6 Repurchase Events. (a) MFI hereby covenants and
agrees with the Purchaser that in the event of (i) a breach of any of MFI's
representations and warranties contained in Section 3.1(a) hereof with respect
to any MFI Receivable, unless such breach shall have been cured in all material
respects within a period acceptable to the Purchaser (but not more than 150
days), or (ii) a breach by MFI of Section 5.4 hereof with respect to any MFI
Receivable, which breach has a material adverse effect on the Purchaser's
interest in such MFI Receivable or (iii) a breach of any of MFI's
representations and warranties contained in Section 3.1(b) (such MFI Receivable,
in either event, a "Warranty Receivable"), MFI will, upon request by the
Purchaser, repurchase such Warranty Receivable from the Purchaser by delivering
to the Purchaser an amount equal to the unpaid principal amount of such MFI
Receivable as of the close of business on the second Business Day preceding such
date of reassignment (the "Warranty Payment"). A breach by MFI of any of its
representations contained in Section 3.1(b) hereof with respect to any MFI
Receivable shall constitute a breach with respect to all MFI Receivables. It is
understood and agreed that the obligation of MFI to repurchase any Warranty
Receivable as to which a breach has occurred and is continuing shall, if such
obligation is fulfilled, constitute the sole remedy against MFI for such breach
available to the Purchaser or the Purchaser.
(b) Upon receipt by the Purchaser of the Warranty Payment, the
Purchaser shall assign, without recourse, representation or warranty, to MFI all
of the Purchaser's right, title and interest in, to and under (i) such Warranty
Receivable and all monies due thereon, (ii) any proceeds from any Insurance
Policies with respect to such Warranty Receivable, (iii) any proceeds from any
guaranties of such Warranty Receivable, (iv) proceeds of the property described
in clauses (i) through (iii) above and (v) this Agreement with respect to such
Warranty Receivable, such assignment being an assignment outright and not for
security. Upon the assignment of such Warranty Receivable and related rights,
MFI shall own such Warranty Receivable and all such security and documents, free
of any further obligations to the Purchaser with respect thereto. If in any
proceeding it is held that MFI may not enforce a Warranty Receivable on the
ground that it is not a real party in interest or a holder entitled to enforce
the Warranty Receivable, the Purchaser shall, at MFI's expense, take such steps
as MFI
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deems necessary to enforce the Warranty Receivable, including bringing suit in
the name of such Person.
SECTION 5.7 Further Assignments. MFI acknowledges that the
Purchaser shall sell, pledge, assign or transfer all of its right, title and
interest in the Purchased Assets and its rights hereunder to the Trustee
pursuant to the Pooling and Servicing Agreement. MFI consents to such assignment
and agrees that the Trustee, to the extent provided in the Pooling and Servicing
Agreement, shall be entitled to enforce the terms of this Agreement and the
rights (including, without limitation, the right to grant or withhold any
consent or waiver) of the Purchaser directly against MFI. In each case, MFI
further agrees that, in respect of its obligations hereunder, it will act at the
direction of and in accordance with all requests and instructions from the
Trustee delivered pursuant to the Pooling and Servicing Agreement until the
satisfaction of all obligations thereunder. Except as otherwise contemplated by
the Pooling and Servicing Agreement, the Trustee shall have the rights of
third-party beneficiary under this Agreement. MFI shall deliver copies of all
notices, requests, demands and other documents to be delivered by it to the
Purchaser pursuant to the terms hereof to the Trustee.
SECTION 5.8 Sale Treatment. MFI and the Purchaser intend to
treat the transfer and assignment described herein as a sale for accounting and
tax purposes.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 Amendment. This Agreement may be amended from time
to time by a written amendment duly executed and delivered by MFI and the
Purchaser, with the prior written consent of the Trustee; provided, however,
that no amendment shall be made without a confirmation by each of the Rating
Agencies that such action will not result in a withdrawal or downgrade of its
then current ratings of the outstanding Commercial Paper.
SECTION 6.2 Survival. The representations, warranties and
covenants of MFI set forth in Article V of this Agreement shall remain in full
force and effect and shall survive the sale of the Receivables under Article II
hereof and any related transfer under the Pooling and Servicing Agreement.
SECTION 6.3 Notices. Except where telephonic instructions or
notices are authorized herein to be given, all notices, requests and demands to
or upon the respective parties hereto to be effective shall be in writing and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand or by overnight courier, or, in the case of
telecopy notice, when received, addressed as follows or to such address or other
address as may be hereafter notified by the respective parties hereto:
Purchaser: DILLARD ASSET FUNDING COMPANY
c/o Chase Manhattan Bank Delaware,
as Owner Trustee
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Department
Telecopy:
with a copy to
The Chase Manhattan Bank, as Trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Structured Finance Services
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MFI: Mersco Factors, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telecopy:
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc.
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Attention:
Telecopy:
S&P: Standard & Poors Rating Group
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Attention:
Telecopy:
SECTION 6.4 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 6.5 Waivers. No failure or delay on the part of any
party in exercising any power, right or remedy under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or remedy preclude any other or further exercise thereof or
the exercise of any other power, right or remedy.
SECTION 6.6 Costs and Expenses. MFI agrees to pay all
reasonable out-of-pocket costs and expenses of the Purchaser, including fees and
expenses of counsel, in connection with the perfection as against third parties
of the Purchaser's right, title and interest in, to and under all Receivables
purchased hereunder and the enforcement of any obligation of MFI hereunder.
SECTION 6.7 Confidential Information. The Purchaser agrees
that it shall neither use nor disclose to any person the names and addresses of
the obligors with respect to any Receivables purchased hereunder, except in
connection with the enforcement of the Purchaser's rights hereunder, under the
MFI Receivables, under the Pooling and Servicing Agreement or as required by
law.
SECTION 6.8 Headings. The various headings in this Agreement
are for purposes of reference only and shall not affect the meaning or
interpretation of any provision of this Agreement.
SECTION 6.9 Counterparts. This Agreement may be executed in
two or more counterparts, 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 6.10 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 enforceable to the fullest extent permitted, and if not
so permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or
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enforceability of the other provisions of this Agreement or the Pooling and
Servicing Agreement or rights of any party thereto.
SECTION 6.11 Further Assurances. MFI and the Purchaser 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 more fully
to effect the purposes of this Agreement, including the execution of any
financing statements or continuation statements relating to any Receivables
purchased hereunder for filing under the provisions of the UCC of any applicable
jurisdiction.
SECTION 6.12 No Third-Party Beneficiaries. Except as
specifically set forth herein, this Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and permitted
assigns; provided that, except as provided in Section 6.13, MFI shall not assign
or transfer any or all of its rights and obligations hereunder without the prior
written consent of the Purchaser. The Purchaser shall give written notice to the
Rating Agencies of any such consent that it grants. Except as otherwise
expressly provided in this Agreement, no other Person shall have any right or
obligation hereunder.
SECTION 6.13 Merger or Consolidation of, or Assumption of the
Obligations of, MFI. Any Person (a) into which MFI may be merged or
consolidated, (b) resulting from any merger, conversion or consolidation to
which MFI shall be a party, (c) succeeding to the business of MFI, or (d) more
than 50% of the voting stock of which is owned, directly or indirectly, by
▇▇▇▇▇▇▇'▇ Inc., which Person in any of the foregoing cases executes an agreement
of assumption to perform every obligation of MFI under this Agreement shall be
the successor to MFI under this Agreement without the execution or filing of any
paper or any further act on the party of any of the parties to this Agreement;
provided, however, that MFI, except with respect to any merger of MFI with, sale
of Receivables, Accounts or other assets to or assumption of obligations of MFI
hereunder by ▇▇▇▇▇▇▇ National Bank or an affiliate thereof (the "DNB
Transactions"), shall have delivered to the Purchaser, the Trustee, Park Avenue
Receivables Corporation, as purchaser under the Certificate Purchase Agreement,
and the Funding Agent on behalf of the APA Banks an Opinion of Counsel either
(A) stating that, in the opinion of such counsel, all financing statements and
continuation statements and amendments thereto have been executed and filed that
are necessary fully to preserve and protect the interest of the Purchaser, the
Purchaser and the Trustee, respectively, in the MFI Receivables and reciting the
details of such filings or (B) stating that, in the opinion of such counsel, no
such action shall be necessary to preserve and protect such interests.
SECTION 6.14 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 6.15 No Petition Covenants. Notwithstanding any prior
termination of this Agreement, MFI shall not, prior to the date which is one
year and one day after payment in full of all obligations hereunder, acquiesce,
petition or otherwise invoke or cause the Purchaser to invoke or join any other
Person in instituting the process of any court or government authority for the
purpose of commencing or sustaining a case against the Purchaser any bankruptcy,
reorganization, arrangement, insolvency, liquidation proceeding, or similar law
of the United States or any state of the United States. Nothing in this Section
6.15 shall preclude, or be deemed to estop, MFI from taking or omitting to take
any action prior to such date in (i) any case or proceeding voluntarily filed or
commenced by or on behalf of the Purchaser under or pursuant to any such law or
(ii) any involuntary case or proceeding pertaining to the Purchaser which is
filed or commenced by or on behalf of a Person other than the Purchaser (or any
Person to which the Purchaser shall have assigned, transferred or otherwise
conveyed any part of the obligations of the Purchaser hereunder) under or
pursuant to any such law.
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SECTION 6.16 No Recourse to Owner Trustee. It is expressly
understood and agreed by and between the parties hereto (i) that this Agreement
is executed and delivered by Chase Manhattan Bank Delaware, not in its
individual capacity but solely as owner trustee (in such capacity, the "Owner
Trustee"), under the Trust Agreement, dated as of the date hereof (the "Trust
Agreement"), among Condev Nevada, Inc., the Owner Trustee and [▇▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇ as Administrators], in the exercise of the power and authority
conferred and vested in it as such Owner Trustee, (ii) each of the
representations, undertakings and agreements made herein by the Purchaser are
not personal representations, undertakings and agreements of Chase Manhattan
Bank Delaware, but are binding only on the Purchaser created pursuant to the
Trust Agreement, (iii) nothing contained herein shall be construed as creating
any liability on Chase Manhattan Bank Delaware, individually or personally, to
perform any covenant of the Purchaser either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any person claiming by, through or under any such party, and (iv) under
no circumstances shall Chase Manhattan Bank Delaware be personally liable for
the payment of any indebtedness or expense of the Purchaser or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Purchaser under this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date and year first above written.
DILLARD ASSET FUNDING COMPANY
By: CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
By:
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Name:
Title:
MERSCO FACTORS, INC.
By:
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Name:
Title:
MFI RECEIVABLES PURCHASE AGREEMENT