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Exhibit 10.45
RECEIVABLES PURCHASE AGREEMENT
among
NATIONAL BANK OF THE GREAT LAKES,
Seller
and
SFA FINANCE COMPANY,
Purchaser
and
SAKS & COMPANY,
Servicer
Dated as of September 17, 1998
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TABLE OF CONTENTS
ARTICLE I - DEFINITIONS................................................... 2
SECTION 1.1. Definitions.......................................... 2
SECTION 1.2. Other Terms.......................................... 7
SECTION 1.3. Computation of Time Periods.......................... 7
ARTICLE II - PURCHASE, CONVEYANCE AND SERVICING OF RECEIVABLES............ 7
SECTION 2.1. Sale................................................. 7
SECTION 2.2. Addition of Accounts................................. 9
SECTION 2.3. Servicing of Receivables............................. 9
ARTICLE III - CONSIDERATION AND PAYMENT; RECEIVABLES...................... 10
SECTION 3.1. Purchase Price....................................... 10
SECTION 3.2. Payment of Purchase Price............................ 10
SECTION 3.3. Monthly Report....................................... 11
ARTICLE IV - REPRESENTATIONS AND WARRANTIES............................... 12
SECTION 4.1. Seller's Representations and Warranties.............. 12
SECTION 4.2. Reaffirmation of Representations and
Warranties by the Seller; Notice of Breach.................... 15
SECTION 4.3. Repurchase of Ineligible Receivables................. 15
ARTICLE V - COVENANTS OF THE SELLER....................................... 15
SECTION 5.1. Covenants of the Seller.............................. 15
SECTION 5.2. Negative Covenants of the Seller..................... 17
SECTION 5.3. Indemnification...................................... 19
ARTICLE VI - REPURCHASE OBLIGATION........................................ 19
SECTION 6.1. Mandatory Repurchase................................. 19
SECTION 6.2. Dilutions, etc....................................... 20
ARTICLE VII - CONDITIONS PRECEDENT........................................ 20
SECTION 7.1. Conditions to the Purchaser's Obligations
Regarding Receivables......................................... 20
ARTICLE VIII - TERM AND TERMINATION....................................... 21
SECTION 8.1. Term................................................. 21
SECTION 8.2. Effect of Termination................................ 21
ARTICLE IX - AMENDMENTS TO THIRD RESTATED AGREEMENT....................... 22
SECTION 9.1. Amendment to Third Restated Agreement................ 22
SECTION 9.2. Continuation of Third Restated Agreement............. 22
ARTICLE X - MISCELLANEOUS PROVISIONS...................................... 22
SECTION 10.1. Amendment............................................ 22
SECTION 10.2. Governing Law........................................ 23
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SECTION 10.3. Notices.............................................. 23
SECTION 10.4. Severability of Provisions........................... 24
SECTION 10.5. Assignment........................................... 24
SECTION 10.6. Further Assurances................................... 25
SECTION 10.7. No Waiver; Cumulative Remedies....................... 25
SECTION 10.8. No Bankruptcy Petition Against the Purchaser
or Trust...................................................... 25
SECTION 10.10. Counterparts......................................... 25
SECTION 10.10. Binding Effect; Third-Party Beneficiaries............ 25
SECTION 10.11. Merger and Integration............................... 25
SECTION 10.12. Headings............................................. 26
SECTION 10.13. Exhibits............................................. 26
SECTION 10.14. Effectiveness of Amendment and Restatement
of Existing Agreement......................................... 26
EXHIBITS
Exhibit A Form of Confirming Assignment
Exhibit B Form of Subordinated Note
Exhibit C Location of Records, Principal Place of Business, etc.
Exhibit D Subsidiaries, Divisions, Trade Names, Bankruptcy Proceedings
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RECEIVABLES PURCHASE AGREEMENT
THIS RECEIVABLES PURCHASE AGREEMENT, dated as of September 17, 1998 (as
amended, supplemented, restated or otherwise modified and in effect from time to
time, this "Agreement"), by and among NATIONAL BANK OF THE GREAT LAKES,
Elmhurst, Illinois, a national banking association, as seller (the "Seller"),
SFA FINANCE COMPANY, a Delaware corporation, as purchaser (the "Purchaser"), and
SAKS & COMPANY, a New York corporation, as servicer (the "Servicer").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Receivables Transfer Agreement, dated as
of September 10, 1991 (the "Original Agreement"), among Saks & Company as
"Seller" (the "Original Seller"), the Servicer and the Purchaser, the Original
Seller agreed to sell to the Purchaser, and the Purchaser agreed to buy from the
Original Seller, all of the Original Seller's right, title and interest in, to
and under the Receivables (as hereinafter defined) then existing or thereafter
created and in the rights of the Original Seller into and under all guarantees
thereof;
WHEREAS, pursuant to that certain Pooling and Servicing Agreement, dated
as of October 21, 1991 (the "Original P&S Agreement"), among the Purchaser, the
Servicer and Bankers Trust Company, as Trustee (the "Original Trustee") the
Purchaser agreed to sell to the Trust created pursuant to the Original P&S
Agreement (the "Original Trust"), for the benefit of the Certificateholders
referred to in the Original P&S Agreement, all of its right, title and interest
in, to and under such Receivables;
WHEREAS, pursuant to the Amended and Restated Receivables Purchase
Agreement, dated as of October 21, 1991 (the "First Restated Agreement"), the
Original Agreement was amended and restated in its entirety;
WHEREAS, pursuant to the Amended and Restated Pooling and Servicing
Agreement, dated as of December 16, 1991 (the "Second P&S Agreement"), among the
Purchaser, the Servicer and the Original Trustee, the Original P&S Agreement was
amended and restated in its entirety;
WHEREAS, pursuant to the Second Amended and Restated Receivables Purchase
Agreement, dated as of December 16, 1991 (the "Second Restated Agreement"), the
First Restated Agreement was amended and restated in its entirety;
WHEREAS, the Original Trust transferred to a new trust created pursuant to
the Pooling and Servicing Agreement, dated as of April 25, 1996 (as the same may
be amended, supplemented, restated or otherwise modified and in effect from time
to time, the "Pooling and Servicing Agreement"), among the Purchaser, the
Servicer and Bankers Trust Company, as
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Trustee (the "Trustee"), for the benefit of the Certificateholders referred to
in the Pooling and Servicing Agreement, all of the Original Trust's right, title
and interest in, to and under the Receivables;
WHEREAS, in connection with the execution and delivery of the Pooling and
Servicing Agreement, and pursuant to the Third Amended and Restated Receivables
Purchase Agreement dated as of April 25, 1996 (the "Third Restated Agreement"),
among the Original Seller, the Purchaser and the Servicer, the Second Restated
Agreement was amended and restated in its entirety;
WHEREAS, in connection with the transactions contemplated by the Agreement
and Plan of Merger dated as of July 4, 1998 (as amended, the "Merger
Agreement"), by and among ▇▇▇▇▇▇▇▇'▇ Inc., a Tennessee corporation
("▇▇▇▇▇▇▇▇'▇"), Fifth Merger Corporation and Saks Holdings, Inc., the Original
Seller will become a wholly-owned subsidiary of ▇▇▇▇▇▇▇▇'▇ and ▇▇▇▇▇▇▇▇'▇ will
change its name to "Saks Incorporated");
WHEREAS, pursuant to the Contribution and Assumption Agreement between
Saks Incorporated and National Bank of the Great Lakes dated as of September 17,
1998 (the "Contribution Agreement"), all of the credit card accounts providing
for extensions of open end credit ("Accounts") of the Original Seller have been
contributed to the Seller, and the Seller has assumed, among other things, all
obligations of the Original Seller under the related Charge Account Agreements;
WHEREAS, the Seller, the Servicer and the Purchaser desire to adopt this
Agreement to provide for the sale of all Receivables in Accounts to SFA pursuant
to this Agreement and to terminate all provisions of the Third Restated
Agreement with respect to Receivables and Accounts (as defined in this
Agreement) and to confirm that all other receivables in accounts retained by the
Original Seller will continue to be sold by the Original Seller pursuant to the
Third Restated Agreement, which shall remain in full force and effect with
respect to such retained accounts and receivables arising thereunder;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Seller, the Servicer and the Purchaser,
intending to be legally bound, agree that the Third Agreement is amended and
restated in its entirety as follows:
ARTICLE I
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 Pooling and Servicing Agreement:
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"Account" shall mean (a) each "Account" and "Additional Account" included
as an Account prior to the Existing Trust Termination Date pursuant to the
Second Restated Agreement, (b) each additional charge account existing on the
Existing Trust Termination Date and not previously included as an Account prior
to such date and (c) subject to Section 2.2, as of each Addition Date, each
Additional Account included as an Account on such Addition Date by the Seller or
the Original Seller pursuant to such Section for or on behalf of customers of
Saks & Company. The definition of Account shall include each Transferred Account
(as defined in the Third Restated Agreement into which an Account shall be
transferred provided that such transfer was made in accordance with the Charge
Account Guidelines. The term "Account" shall be deemed to refer to an Additional
Account only from and after the Addition Date with respect thereto.
Notwithstanding the foregoing, for purposes of this Agreement "Account" and
"Additional Account" shall only include each consumer revolving credit card
account originated or acquired by the Seller, which account has been established
or exists pursuant to a Charge Account Agreement, which are Accounts of the
Original Seller contributed to the Bank and which provide for the extension of
open end credit.
"Addition Date" shall having the meaning specified in Section 2.2
hereof.
"Additional Account" shall have the meaning specified in Section 2.2
hereof.
"Advance" shall have the meaning specified in Section 3.2(a) hereof.
"Benefit Plan" shall mean any employee benefit plan as defined in Section
3(3) of ERISA which the Seller maintains.
"Charge Account Agreement" shall have the meaning specified in the Pooling
and Servicing Agreement).
"Charge Account Guidelines" shall have the meaning specified in the
Pooling and Servicing Agreement.
"Closing Date" shall mean the beginning of business on the Business Day
immediately following the effective date and time of the Merger (as defined in
the Merger Agreement) occurs.
"Collections" shall mean all payments by or on behalf of Obligors
(including Insurance Proceeds and Recoveries) received by the Servicer in
respect of the Receivables, in the form of cash, checks, wire transfers or any
other form of payment in accordance with an Account Agreement in effect from
time to time, including any Account Adjustments.
"Cut-Off Date" shall mean the close of business on [September 1], 1998
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
in effect from time to time.
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"ERISA Affiliate" shall mean, with respect to any Person, (i) any
corporation which is a member of the same controlled group of corporations
(within the meaning of Section 414(b) of the Internal Revenue Code) as such
Person; (ii) a trade or business (whether or not incorporated) under common
control (within the meaning of Section 414(c) of the Internal Revenue Code) with
such Person; or (iii) for purposes of Section 412 of the Internal Revenue Code,
a member of the same affiliated service group (within the meaning of Section
414(m) of the Internal Revenue Code) as such Person, any corporation described
in clause (i) above or any trade or business described in clause (ii) above.
"Insolvency Event" shall mean, with respect to a Person, (i) such Person
shall commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its assets, or
such Person shall make a general assignment for the benefit of its creditors; or
(ii) there shall be commenced against such Person any case, proceeding or other
action of a nature referred to in clause (i) above which (A) results in the
entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against such Person or any of its subsidiaries any
case, proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 60 such days from the entry thereof; or (iv) such Person or any of its
subsidiaries shall take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the acts set forth in clause (i),
(ii), or (iii) above; or (v) such Person shall generally not, or shall be unable
to, or shall admit in writing its inability to, pay its debts as they become
due.
"Merger Agreement" shall mean the Agreement and Plan of Merger dated as of
July 4, 1998 by and among ▇▇▇▇▇▇▇▇'▇, Inc., Fifth Merger Agreement and Saks
Holdings, Inc., as amended.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA which is or was at any time during the current year
or the immediately preceding five years contributed to by the Seller or Eligible
Originator or any ERISA Affiliate of the Seller or Eligible Originator on behalf
of its employees.
"Purchase Date" shall have the meaning assigned in Section 3.2(b)
hereof.
"Purchase Period" shall mean, with respect to Receivables sold by the
Seller to the Purchaser after the Closing Date, the Monthly Period reported upon
in the most recent Monthly Servicer Report delivered after the Closing Date.
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"Purchase Rate" shall mean the percentage equivalent of the decimal
representation of the following expression:
(1.00 + APY) minus (BDA + SF + PCF + OE + RF) where:
APY = average portfolio yield of the aggregate receivables
(expressed as the decimal equivalent of a percentage) as
reasonably determined over the preceding twelve (12) months
(or such other period mutually agreed upon by the Purchaser
and the Seller);
BDA = an allowance for bad debts (expressed as the decimal
equivalent of a percentage), based on, among other relevant
factors, historical rates for the previous twelve (12)
months (or such other period mutually agreed upon by the
Purchaser and the Seller);
SF = a Servicer fee equal to 2.00% (expressed as the decimal
equivalent of a percentage) per annum;
PCF = the Purchaser's cost of funds, as calculated from time
to time, equal to the sum (expressed as the decimal
equivalent of a percentage) of (i) the product of a
fraction equal to the adjusted investor amount of all
classes of Certificates issued by the Trust (other than
those held by the Purchaser) divided by the Aggregate
Principal Receivables multiplied by the prime rate (as
published in the Money Rates Section of The Wall Street
Journal) plus (ii) the product of (x) 20% (to be
adjusted from time to time based on changes to the
Purchaser's reasonably estimated marginal cost of
capital) multiplied by (y) a fraction equal to the sum
of the Seller Amount plus the investor amount of any
class of Certificates held by the Purchaser divided by
the Aggregate Principal Receivables;
OE = the fraction (expressed as the decimal equivalent of a
percentage), the numerator of which is the Purchaser's
annualized estimate of projected operating expenses for
the next twelve (12) months and the denominator of which
is the estimated outstanding principal balance of
Receivables expected to be sold by the Seller to the
Purchaser in the next twelve (12) months; and
RF = a contingency risk factor (expressed as the decimal
equivalent of a percentage) based on industry and economic
considerations, as determined by the Purchaser in its
reasonable discretion and as agreed upon between the
Purchaser and the Seller.
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"Purchase Price" shall have the meaning set forth in Section 3.1.
"Receivable" shall mean any amount owing by an Obligor under an Account
with the Seller, including any Additional Account, from time to time, including,
without limitation, amounts owing for the payment of merchandise and services,
Charge Account Fees, service contract charges, premiums for Credit Insurance,
Finance Charge Receivables and all other fees and charges. In calculating the
aggregate amount of Receivables on any day, the amount of Receivables shall be
reduced by the aggregate amount of Credit Adjustments stated in Section 4.3(d)
of the Pooling and Servicing Agreement, in the Accounts on such day.
"Records" shall mean all Account Agreements and other documents, books,
records and other information (including, without limitation, computer programs,
tapes, discs, punch cards, data processing software and related property and
rights) maintained with respect to Receivables and the related Obligors.
"Related Security" means, with respect to any Receivable, all of the
Seller's rights, title and interest in, to and under the following, as and to
the extent applicable:
(i) 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;
(ii) 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;
(iii) 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;
(iv) all records related to such Receivable; and
(v) all proceeds of any of the foregoing.]
"Relevant UCC" shall mean the Uniform Commercial Code as in effect in the
State of Illinois.
"Secured Obligations" shall have the meaning set forth in Section
2.1(d) hereof.
"Subordinated Note" shall have the meaning specified in Section 3.2(b)
hereof.
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"Termination Date" shall have the meaning specified in Section 8.1
hereof.
SECTION 1.2. OTHER TERMS. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles. To the extent that the definitions of accounting terms herein are
inconsistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained herein shall control. All terms used in
Article 9 of the Relevant UCC, and not specifically defined herein, are used
herein as defined in such Article 9. The definitions of all terms defined herein
shall include the singular as well as the plural form of such terms and the
masculine of such terms as well as the feminine and neuter genders of such
terms. The terms "include", "including" or "includes" shall mean including
without limitation by way of enumeration or otherwise.
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 II
PURCHASE, CONVEYANCE AND SERVICING OF RECEIVABLES
SECTION 2.1. SALE. (a) Upon the terms and subject to the conditions
specifically set forth herein, the Seller hereby sells, assigns, transfers,
sets-over and conveys to the Purchaser on each Business Day, without recourse,
and the Purchaser hereby purchases from the Seller, all of the Seller's right,
title and interest, whether now owned or hereafter acquired, in, to and under
the Receivables now existing or hereafter created, and owned by the Seller,
through any Termination Date (but not thereafter), together with all Related
Security, if any, and all Collections and other monies due or to become due with
respect thereto (including all Finance Charge Receivables, Recoveries, all
guarantees thereof and interchange, if any) and all proceeds of the foregoing,
including Insurance Proceeds. 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 on the Closing Date, such Receivables shall be
deemed to be all the Receivables of the Seller that exist as of the close of
business on the Cut-Off Date together with any Receivables created thereafter
prior to the Closing Date and in each case, that have not been sold by the
Original Seller pursuant to the Third Restated Agreement. With respect to
Receivables to be sold pursuant to this Agreement by the Seller after the
Closing Date, such Receivables shall be deemed to be all the Receivables created
after the close of business on the Cut-Off Date.]
(b) In connection with the foregoing sale, the Seller agrees to record and
file on or prior to the Closing Date or within 10 days thereafter, at its own
expense, a financing statement
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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 (subject, in the case of Related Security constituting returned
inventory and proceeds, to the applicable provisions of Section 9-306 of the
Relevant UCC) against all creditors of and purchasers from the Seller, and to
deliver either the originals of such financing statements or a file-stamped copy
of such financing statements or other evidence of such filings to the Purchaser
on the Closing Date.
(c) 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 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
shall indicate clearly and unambiguously in the Seller's computer files and
other Records that the Receivables transferred hereby have been sold to the
Purchaser pursuant to this Agreement and subsequently transferred to the Trustee
pursuant to the Pooling and Servicing Agreement. 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.
(d) It is the express intent of the Seller and the Purchaser that the
conveyance of the Receivables, all Related Security, if any, and all Collections
and proceeds thereof by the Seller to the Purchaser pursuant to this Agreement
be construed as a sale of such Receivables and other property by the Seller to
the Purchaser, which sale is absolute and irrevocable (except as expressly
provided otherwise herein) and provides the Purchaser with the full benefits of
ownership of such Receivables and other property. Further, it is not the
intention of the Seller and the Purchaser that such conveyance be deemed a grant
of a security interest in the Receivables and such other property 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, the
Receivables and such other property 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
Receivables and such other property outstanding on the Closing Date and
thereafter owned by the Seller, together with all Related Security, if any, and
all Collections and other monies due or to become due with respect thereto
(including all Finance Charge Receivables, Recoveries and all guarantees thereof
and interchange, if any) and all proceeds of the foregoing, including Insurance
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Proceeds, 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 the
Receivables and such other property, such security interest would be deemed to
be a perfected first priority security interest in favor of the Purchaser under
applicable law and will be maintained as such throughout the term of this
Agreement.
SECTION 2.2. ADDITION OF ACCOUNTS. On each Business Day (each, an
"Addition Date") (i) each charge account established pursuant to a Charge
Account Agreement since the preceding Business Day (or in the case of the
Business Day immediately following the Existing Trust Termination Date which is
an Eligible Account) and (ii) each Restored Account (any such account referred
to in the foregoing clauses (i) and (ii), an "Additional Account") shall be
included as an Account. The Seller shall convey to the Purchaser the Receivables
in any Additional Accounts on each Addition Date with respect thereto. On each
Determination Date, the Seller shall deliver to the Purchaser a written
assignment (including an acceptance by the Purchaser) in substantially the form
of Exhibit A (a "Confirming Assignment") and a computer file, microfiche or
written list containing a true and complete schedule identifying all Additional
Accounts conveyed to the Purchaser during the preceding Monthly Period and
specifying for each such Account, as of the last billing date for such Account,
its account number and the aggregate amount outstanding in such Account, and
such computer file, microfiche or written list shall be incorporated into and
made part of such Confirming Assignment and this Agreement as of the date of
such Confirming Assignment. On each Addition Date, the Seller shall indicate in
its computer files that the Receivables created in the Additional Accounts
conveyed to the Purchaser on such date have been conveyed to the Purchaser for
further conveyance to the Trust for the benefit of the Certificateholders
referred to in the Pooling and Servicing Agreement.
SECTION 2.3. SERVICING OF RECEIVABLES. (a) The servicing, administering
and collection of the Receivables shall be conducted by the Servicer, which
hereby agrees to perform, take or cause to be taken all such action as may be
necessary or advisable to collect each Receivable from time to time, all in
accordance with applicable laws, rules and regulations and with the care and
diligence which the Servicer employs in servicing similar receivables for its
own account, in accordance with the Charge Account Guidelines. As provided in,
and subject to the terms of, Section 8.7 of the Pooling and Servicing Agreement,
the Servicer may delegate certain functions to other Persons who agree to
conduct such duties in accordance with the Charge Account Guidelines; provided,
however, no such delegation shall relieve the Servicer of its obligations
hereunder. The Purchaser hereby appoints the Servicer as its agent to enforce
the Purchaser's rights and interests in, to and under the Receivables, the
Related Security, if any, and the Collections with respect thereto, and the
Seller agrees to cooperate with and assist the Purchaser and the Servicer in
connection with any such efforts, including acting as agent for and on behalf of
the Purchaser and the Servicer in connection therewith. The Servicer shall hold
in trust for the Purchaser, in accordance with its interests, all records which
evidence or relate to the Receivables or Related Security, if any, Collections
and proceeds with respect thereto. Notwithstanding anything to the contrary
contained herein, from and after a Servicer Default, a
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Successor Servicer shall be appointed as provided in Article X of the Pooling
and Servicing Agreement. The Purchaser agrees to pay the Servicer the Monthly
Servicing Fee for the Servicer's performance of the duties and obligations
described in this Agreement and in the Pooling and Servicing Agreement.
(b) The Seller hereby grants to each of the Purchaser and the Servicer an
irrevocable, non-exclusive license to use, without royalty or payment of any
kind, all software used by the Seller to account for the Receivables, to the
extent necessary to administer the Receivables, whether such software is owned
by the Seller or is owned by others and used by the Seller under license
agreements with respect thereto, provided, however, should the consent of any
licensor of the Seller to such grant of the license described herein be
required, the Seller hereby agrees that upon the request of the Purchaser (or
the Trustee as the Purchaser's assignee), the Seller will use its reasonable
efforts to obtain the consent of such third-party licensor. The license granted
hereby shall be irrevocable, and shall terminate on the date this Agreement
terminates in accordance with its terms.
ARTICLE III
CONSIDERATION AND PAYMENT; RECEIVABLES
SECTION 3.1. PURCHASE PRICE. The Purchase Price for the Receivables and
related property conveyed on any date shall be the dollar amount equal to the
product of (i) the aggregate outstanding principal balance of the Receivables
sold during the applicable Purchase Period as reflected in the applicable
Monthly Servicer's Statement or any other certificate delivered pursuant thereto
or pursuant to this Agreement as in effect prior to the date hereof and (ii) the
Purchase Rate on such date.
SECTION 3.2. PAYMENT OF PURCHASE PRICE. (a) The Purchase Price for the
Receivables sold on and after the Closing Date shall be paid or has been paid by
payment of cash in immediately available funds. The Purchaser may obtain the
cash to pay the Purchase Price from the sale of Eligible Receivables to the
Trust, and pursuant to advances pursuant to a Subordinated Note between either
Saks Incorporated or Saks & Company, as lender (the "Subordinated Note Lender")
and the Purchaser (such advance and any advance thereunder as contemplated by
Section 3.2(b), each an "Advance") and contributions to the capital of the
Purchaser by the Subordinated Note Lender.
(b) The Purchase Price for the Receivables sold by the Seller on any
purchase date after the initial date of the Receivables Purchase Agreement
(each, a "Purchase Date") shall be paid in cash to the Seller from proceeds from
(i) the sale by the Purchaser of the Receivables to the Trust or (ii) from
proceeds of (A) an Advance under the Subordinated Note or (iii) a capital
contribution by the Subordinated Note Lender to the Purchaser or (iv) any
combination of the foregoing. In the event the Purchaser does not have
sufficient cash to pay the Purchase Price due on any Purchase Date, or the
Subordinated Note Lender determines, in its sole discretion not to
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make a capital contribution to the Purchaser, the Subordinated Note Lender,
subject to the terms hereof, irrevocably agrees to make an Advance on such
Purchase Date in an original principal amount equal to such cash insufficiency.
All Advances made by the Subordinated Note Lender to the Purchaser shall be
evidenced by a single subordinated note, duly executed on behalf of the
Purchaser, in substantially the form of Exhibit B annexed hereto.
(c) The terms and conditions of the Subordinated Note and all Advances
thereunder shall be as follows:
(i) Repayment of Advances. All amounts paid by the Purchaser with
respect to the Advances shall be allocated first to the repayment of accrued
interest until all such interest is paid, and then to the outstanding principal
amount of the Advances. Subject to the provisions of this Agreement, the
Purchaser may borrow, repay and reborrow Advances on and after the date hereof
and prior to the termination of this Agreement, subject to the terms, provisions
and limitations set forth herein.
(ii) Interest. The Subordinated Note shall bear interest from its
date on the outstanding principal balance thereof at a rate per annum equal to
one month LIBOR as published in the Money Rates Section of The Wall Street
Journal. Interest on each Advance shall be computed and paid based on the actual
number of days elapsed and upon a year of 360 days.
(iii) Sole and Exclusive Remedy; Subordination. The Subordinated
Note shall be fully subordinated to any rights of the Trustee, the
Certificateholders and their permitted assigns pursuant to the Pooling and
Servicing Agreement, all on the terms and conditions set forth in the
Subordinated Note, and shall not evidence any rights in the Receivables.
SECTION 3.3. MONTHLY REPORT. On each Determination Date, the Seller shall
deliver or cause to be delivered to the Purchaser a report covering the
preceding Monthly Period, substantially in the form of the Monthly Servicer's
Statement attached as Exhibit E to the Pooling and Servicing Agreement, showing
(i) the aggregate Purchase Price of Receivables acquired or generated by the
Seller in the preceding Monthly Period and (ii) the aggregate outstanding
principal balance of such Receivables that are Eligible Receivables as of the
last day of such preceding Monthly Period.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. SELLER'S REPRESENTATIONS AND WARRANTIES. The Seller
represents and warrants to the Purchaser as of the Closing Date and shall be
deemed to represent and warrant as of the date of any sale of any interest in
Receivables, including Receivables in Additional Accounts to the Purchaser
pursuant to this Agreement that:
(a) Corporate Existence and Power. The Seller is a national banking
association, duly incorporated, validly existing and in good standing under the
laws of the United States of America, and has full power, authority and legal
right to own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement. The Seller is duly
qualified to do business and is in good standing (or is exempt from such
requirements) and has obtained all necessary licenses and approvals with respect
to the Seller, in each jurisdiction in which failure to so qualify or to obtain
such licenses and approvals would render any Account Agreement relating to an
Account or any Receivable unenforceable by it, the Purchaser or the Trust and
would have a material adverse effect on the Certificateholders or on the
Purchaser's or the Servicer's ability to perform their respective obligations
under this Agreement, the Pooling and Servicing Agreement or any Supplement
thereto.
(b) Corporate and Governmental Authorization; Contravention. The
execution, delivery and performance by the Seller of this Agreement are within
the Seller's corporate powers, have been duly authorized by all necessary
corporate action, and require no action by or in respect of, or filing with, any
Governmental Authority or official thereof (except for the filing of UCC
financing and continuation statements, and amendments thereto, as required by
this Agreement). The execution and delivery of this Agreement by the Seller, the
performance by the Seller of the transactions contemplated by this Agreement and
the fulfillment by the Seller of the terms hereof and thereof will not conflict
with, violate or result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or lapse of time or both) a
default under, any Requirements of Law applicable to the Seller or any
indenture, contract, agreement, mortgage, deed of trust or other instrument to
which the Seller is a party or by which it or any of its properties are bound
and which conflict, violation, breach or default would have a material adverse
effect on the Purchaser or the Certificateholders or on the Purchaser's or the
Servicer's ability to perform their respective obligations under the Pooling and
Servicing Agreement.
(c) Binding Effect. This Agreement constitutes the legal, valid and
binding obligation of the Seller, enforceable against the Seller in accordance
with its terms, subject to applicable bankruptcy, insolvency, receivership,
conservatorship, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in
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general and except as such enforceability may be limited by general principles
of equity (whether considered in a proceeding at law or in equity).
(d) Perfection. Immediately preceding the sale, transfer and assignment of
the Receivables and the related property pursuant to this Agreement, the Seller
had good and marketable title to all of the Receivables and such related
property, free and clear of all Liens (except those Liens permitted by the
Pooling and Servicing Agreement). On or prior to the date of each sale of
Receivables and such related property pursuant to this Agreement, all financing
statements and other documents required to be recorded or filed in order to
perfect and protect the ownership interest of the Purchaser in and to the
Receivables and such related property against all creditors of and purchasers
from the Seller will have been duly filed in each filing office necessary for
such purpose and all filing fees and taxes, if any, payable in connection with
such filings shall have been paid in full.
(e) Tax Status. The Seller has filed all material tax returns (federal,
state and local) required to be filed and has paid or made adequate provision
for the payment of all taxes, assessments and other governmental charges.
(f) Action, Suits. There are no proceedings or investigations pending or,
to the knowledge of the Seller, threatened against the Seller 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, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Seller, would materially and adversely affect the
performance by the Seller of its obligations under this Agreement, (iv) seeking
any determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement or (v) seeking to affect adversely
the federal income tax attributes of the Trust.
(g) Place of Business. The principal place of business and chief executive
office of the Seller is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, and the offices where the Seller keeps all its records with respect to
its Accounts and Receivables, are located at the address(es) described on
Exhibit C hereto or such other locations notified to the Purchaser in accordance
with this Agreement in jurisdictions where all action required by the terms of
this Agreement has been taken and completed.
(h) True Sale. This Agreement constitutes a valid sale, transfer and
assignment to the Purchaser of all right, title and interest of the Seller in
and to the Receivables and related property to be transferred hereby, whether
existing on the date of this Agreement or hereafter created in the Accounts and
the proceeds thereof which is effective as to each Receivable upon the creation
thereof, and upon such transfer to the Purchaser hereunder, the Purchaser shall
obtain good and marketable title to such Receivables and related property, free
and clear of all Liens (except those Liens permitted by the Pooling and
Servicing Agreement).
(i) Trade Names, etc. As of the date hereof: (i) the Seller's chief
executive office is located at the address set forth in the immediately
preceding subsection (g); (ii) the Seller has
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only the subsidiaries and divisions listed on Exhibit D hereto; and (iii) the
Seller has, within the last five (5) years, operated only under the trade names
identified in Exhibit D hereto, and, within the last five (5) years, has not
changed its name, merged with or into or consolidated with any other corporation
or been the subject of any proceeding under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code
(Bankruptcy), except as disclosed in Exhibit D hereto.
(j) Nature of Receivables. As of the applicable Addition Date with respect
to Additional Accounts, and as of the applicable Determination Date with respect
to Additional Accounts conveyed to the Purchaser during the preceding Monthly
Period, the related computer file, microfiche or written list referred to in
Section 2.2 is in all material respects an accurate and complete listing of all
the Accounts of the Seller the Receivables of which have been sold, transferred
and assigned to the Purchaser since the last day of the preceding Monthly
Period, and the information contained therein with respect to the identity of
such Accounts and the Receivables existing thereunder is true and correct in all
material respects as of the last day of such preceding Monthly Period.
(k) Eligibility of Accounts. No selection procedures adverse to the
Purchaser or the Certificateholders have been employed in selecting the
Accounts.
(l) [Reserved]
(m) Not an Investment Company. The Seller is not, and is not controlled
by, an "investment company" within the meaning of the Investment Company Act of
1940, as amended, or is exempt from all provisions of such Act.
(n) ERISA. The Seller and each of its ERISA Affiliates is in compliance in
all material respects with ERISA and no lien exists in favor of the Pension
Benefit Guaranty Corporation on any of the Receivables.
(o) Bulk Sales. No transaction contemplated by this Agreement requires
compliance with any bulk sales act or similar law.
(p) No Insolvency. The Seller is not insolvent immediately prior to any
transfer of Receivables hereunder, and will not be rendered insolvent
immediately following such transfer.
(q) Reasonably Equivalent Value. The Purchaser has given reasonably
equivalent value to the Seller in consideration for the transfer and sale to the
Purchaser of the applicable Receivables and other property from such Seller, and
each such transfer shall not have been made for or on account of an antecedent
debt owed by such Seller to the Purchaser. The Seller acknowledges that it will
receive reasonably equivalent value in consideration for the transfer to the
Purchaser of all Receivables and other property now or hereafter to be
transferred and sold hereunder.
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The Purchaser and the Servicer may rely upon any of these representations
and warranties, and any of the covenants and agreements of the Seller contained
herein in connection with any transactions pursuant to the Pooling and Servicing
Agreement.
SECTION 4.2. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES BY THE
SELLER; NOTICE OF BREACH. On each Addition Date, the Seller shall be deemed to
have certified that all representations and warranties described in Section 4.1
are true and correct on and as of such date as though made on and as of such
date and that all the covenants to be performed by the Seller have been
performed. The representations and warranties set forth in Section 4.1 shall
survive the conveyance of the Receivables to the Purchaser, and termination of
the rights and obligations of the Purchaser and the Seller under this Agreement.
Upon discovery by the Purchaser or the Seller of a breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other within three (3) Business Days of
such discovery.
SECTION 4.3. AUTOMATIC REPURCHASE OF INELIGIBLE RECEIVABLES. In the event
that a Receivable is not an Eligible Receivable as a result of the failure to
satisfy the conditions set forth in clause (d) of the definition of Eligible
Receivable in the Pooling and Servicing Agreement, and either of the following
two conditions is met:
(i) the Lien on the subject Receivable (1) ranks prior to the Lien
created pursuant to this Agreement, (2) arises in favor of the United
States of America or any state or any agency or instrumentality thereof or
involves taxes or liens arising under Title IV of ERISA, or (3) has been
consented to by the Seller; or
(ii) the Lien on the subject Receivable is not of the types
described in clause (i) above, but, as a result of such breach or event,
such Receivable becomes a Receivable in a Defaulted Account or the
Purchaser's rights in, to or under such Receivable or its proceeds are
materially impaired or the proceeds of such Receivable are not available
for any reason to the Purchaser free and clear of any Lien except Liens
permitted hereby;
then, upon the earlier to occur of the discovery of such breach or event by the
Seller or receipt by the Seller of written notice of such breach or event given
by the Purchaser, the Servicer or the Trustee, each such Receivable or, at the
option of the Seller, all such Receivables with respect to the related Account,
automatically shall be repurchased by the Seller on the terms and conditions set
forth in Article VI hereof.
SECTION 4.4. REPURCHASE AFTER CURE PERIOD. In the event of a breach
of any of the representations and warranties set forth in Section 4.1(j) or (k)
with respect to a Receivable (other than in the event that a Receivable is not
an Eligible Receivable as a result of the failure to satisfy the conditions set
forth in clause (c) of the definition of Eligible Receivable), and as a result
of such breach or event such Receivable becomes a Receivable in a Defaulted
Account or the Purchaser's rights in, to or under such Receivable or its
proceeds are materially impaired or the proceeds of such Receivable are not
available for any reason to the Purchaser free and clear
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of any Lien except Liens permitted hereby, then, upon the expiration of 90 days
or any longer period specified by the Servicer (not to exceed an additional 90
days) from the earlier to occur of (x) the discovery of any such event by the
Transferor or the Servicer or (y) receipt by the Purchaser or the Servicer of
written notice of any such event given by the Trustee, each such Receivable or,
at the option of the Purchaser, all such Receivables with respect to the related
Account, shall be repurchased by the Seller on the terms and conditions set
forth in Article VI hereof; provided, however, that no such repurchase shall be
required to be made if, on any day within such applicable period, (A) such
representation and warranty with respect to such Receivable shall then be true
and correct in all material respects as if such Receivable had been transferred
to the Trust on such day, and (B) the related Account is no longer a Defaulted
Account as the result of the breach of such representation and warranty, and the
Trust's rights in, to or under such Receivable or its proceeds are no longer
materially impaired as a result of a breach of such representation and warranty,
and the proceeds of such Receivable are available to the Trust free and clear of
all Liens resulting in the breach of such representation and warranty, as
applicable.
SECTION 4.5 REPURCHASE OF ALL RECEIVABLES. In the event that any of
the representations or warranties set forth in Sections 4.1(a), 4.1(b), 4.1(c),
4.1(d) or 4.1(j) are breached and such breach results in a requirement that the
Purchaser repurchase such Receivable under the Pooling and Servicing Agreement
or a material amount of Receivables are deemed not to be Eligible Receivables,
and such event has a materially adverse effect on the Purchaser or the
Certificateholders, and the Transferor is required to accept reassignment of all
Receivables at the order of the Trustee or the Certificateholders, then the
Seller shall repurchase all Receivables on the terms and conditions set forth in
Article VI hereof.
ARTICLE V
COVENANTS OF THE SELLER
SECTION 5.1. COVENANTS OF THE SELLER. The Seller hereby covenants and
agrees with the Purchaser that, for so long as this Agreement and the Pooling
and Servicing Agreement are in effect, and until all Receivables, an interest in
which has been sold to the Purchaser pursuant hereto, shall have been paid in
full or charged off, and all amounts owed by the Seller pursuant to this
Agreement have been paid in full, unless the Purchaser otherwise consents in
writing, the Seller covenants and agrees as follows:
(a) Conduct of Business. The Seller will carry on and conduct its credit
card business in substantially the same manner as it is presently conducted and
do all things necessary to remain duly organized, validly existing and in good
standing as a national banking association. The Seller will maintain all
authority required to conduct its business in each jurisdiction in which its
business is conducted, the failure of which would render any Account Agreement
relating to an Account or any Receivable unenforceable by it, the Purchaser or
the Trustee and
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would have a material adverse effect on the Certificateholders or on the
Purchaser's or the Servicer's ability to perform their respective obligations
under this Agreement, the Pooling and Servicing Agreement or any Supplement
thereto.
(b) Compliance with Laws. The Seller will comply in all material respects
with all laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it or its properties may be subject.
(c) Furnishing of Information and Inspection of Records. The Seller will
furnish or cause to be furnished to the Purchaser from time to time such
information with respect to the Receivables as the Purchaser may reasonably
request, including, without limitation, a computer file, microfiche or written
list showing each Account, identified by account number, and Receivable balance
and any information which the Purchaser may be required to deliver pursuant to
the Pooling and Servicing Agreement or any Supplement thereto. The Seller will
at any time and from time to time during regular business hours and upon
reasonable prior notice permit the Purchaser, or its agents or representatives
(which may include any purchasers of certificates not sold to the public), (i)
to examine and make copies of and abstracts from all records and (ii) to visit
the offices and properties of the Seller for the purpose of examining such
records, and to discuss matters relating to Receivables or the Seller's
performance hereunder with any of the officers, directors, employees or
independent public accountants of the Seller having knowledge of such matters.
(d) Keeping of Records and Books of Account. The Seller will maintain a
system of accounting established and administered in accordance with generally
accepted accounting principles except to the extent required otherwise by
applicable regulatory authorities and then consistent with regulatory accounting
principles, consistently applied, and will maintain and implement administrative
and operating procedures (including, without limitation, an ability to produce
or recreate records evidencing Receivables in the event of the destruction of
the originals thereof), and keep and maintain, all documents, books, records and
other information reasonably necessary or advisable for the collection of all
Receivables (including, without limitation, records adequate to permit the daily
identification of each new Receivable and all Collections of and adjustments to
each existing Receivable). The Seller will give the Purchaser and the Trustee
notice of any material change in the administrative and operating procedures of
the Seller referred to in the previous sentence.
(e) Account Agreements and Charge Account Guidelines. The Seller shall
comply with and perform, its obligations under the applicable Account Agreements
relating to the Accounts, the Charge Account Guidelines, and the related
Certificate Purchase Agreement, except insofar as any failure so to comply or
perform would not materially and adversely affect the rights of the Purchaser,
the Trust or the Certificateholders, the ability of the Servicer to collect the
Receivables, the validity or enforceability of this Agreement, the Pooling and
Servicing Agreement, or any documents or agreements related thereto, or the
performance by any party of its obligations hereunder or thereunder.
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(f) Reduction of Charges. Except as otherwise required by Requirement of
Law or as the Seller shall deem necessary to maintain the Saks credit card
program based on a good faith assessment by the Seller, in its sole discretion,
of the various factors affecting the use of its Accounts, the Seller will not
reduce the finance charges or other fees on the Accounts if, as a result of such
reduction, the Servicer reasonably expects that the Portfolio Yield with respect
to all Series outstanding as of the time of, and giving effect to, such
reduction would be less than the weighted average Base Rate for all such
outstanding Series. In addition, the Seller covenants that, unless required by
law, it will not reduce the annual percentage rate, if its reasonable
expectation of Portfolio Yield would be less than the highest Certificate Rate
for any outstanding Series.
(g) Collections Received. The Seller shall direct or cause all Collections
of Receivables to be remitted as directed by the Purchaser. In the event that
the Seller receives any such Collection, the Seller shall hold in trust for and
on behalf of the Purchaser and the Trust, as their interests may appear, and
remit, immediately, but in any event not later than the close of business on the
second Business Day following its receipt thereof, to the Servicer, all
Collections received from time to time by the Seller.
(h) Sale Treatment. The Seller agrees to treat this conveyance for all
purposes (including, without limitation, tax and financial accounting purposes)
as a sale and, to the extent any such reporting is required, shall report the
transactions contemplated by this Agreement on all relevant books, records, tax
returns, financial statements and other applicable documents as a sale of the
Receivables to the Purchaser.
(i) ERISA. The Seller shall promptly give the Purchaser written notice
upon becoming aware that any ERISA Lien on any of the Receivables exists.
SECTION 5.2. NEGATIVE COVENANTS OF THE SELLER. During the term of this
Agreement, unless the Trustee and the Purchaser shall otherwise consent in
writing:
(a) No Sales, Liens, Etc. Except for the conveyances hereunder, the Seller
will not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on (or the filing of any financing
statement with respect to) any Receivable, whether now existing or hereafter
created, or any interest therein; the Seller will notify the Purchaser and the
Trustee of the existence of any Lien on any Receivable transferred and sold by
the Seller to Purchaser hereby; and immediately upon discovery thereof, the
Seller will defend the right, title and interest of the Purchaser and the Trust
in, to and under the Receivables, whether now existing or hereafter created,
against all claims of third parties claiming through or under the Seller;
provided, however, that nothing in this Section 5.2(a) shall prevent or be
deemed to prohibit the Seller from suffering to exist upon any of the
Receivables any Liens for, municipal or other local taxes and other governmental
charges if such taxes or governmental charges shall not at the time be due and
payable or if the Transferor shall currently be contesting the validity thereof
in good faith by appropriate proceedings and shall have set aside on its books
adequate reserves under generally accepted accounting principles with respect
thereto.
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(b) Account Agreements and Charge Account Guidelines. Subject to
compliance with all Requirements of Law, the failure to comply with which would
have a material adverse effect on the rights of the Purchaser, the Trust or the
Certificateholders, and subject further to Section 5.1(f), the Seller or the
Servicer may change the terms and provisions of the Charge Account Agreements or
the Charge Account Guidelines in any respect, so long as such changes are made
applicable to comparable segments of those Charge Accounts serviced by the
Servicer which have characteristics the same as, or substantially similar to,
the Accounts which are subject hereto, and so long as such changes would not be
reasonably likely to cause the occurrence of a Pay Out Event.
(c) Change of Name, Etc. The Seller shall not change its name, identity or
structure or location of its chief executive office, unless at least ten (10)
Business Days prior to the effective date of any such change the Seller delivers
to the Purchaser such documents, instruments or agreements, including, without
limitation, appropriate financing statements under the Relevant UCC, executed by
the Seller necessary to reflect such change and to continue the perfection of
the Purchaser's and any assignee's first priority interest in the Receivables.
(d) No Change in Business or Charge Account Guidelines. The Seller will
not make any change in the Charge Account Guidelines or any change in the
character of its business, which change would, in either case, impair the
collectibility of any substantial portion of the Receivables or otherwise
materially and adversely affect the rights of the Purchaser, the Trust or the
Certificateholders, the ability of the Servicer to collect the Receivables, the
validity or enforceability of this Agreement, the Pooling and Servicing
Agreement, or any documents or agreements related thereto, or the performance by
any party of its obligations hereunder or thereunder.
(e) ERISA Matters. The Seller will not (i) engage in any prohibited
transaction (as defined in Section 4975 of the Internal Revenue Code and Section
406 of ERISA) for which an exemption is not available or has not previously been
obtained from the U.S. Department of Labor; (ii) permit to exist any accumulated
funding deficiency (as defined in Section 302(a) of ERISA and Section 412(a) of
the Internal Revenue Code) or funding deficiency with respect to any Defined
Benefit Plan other than a Multiemployer Plan that could reasonably result in the
PBGC or IRS filing a lien; (iii) fail to make any payments to any Multiemployer
Plan that the Seller or any ERISA Affiliate of the Seller is required to make
under the agreement relating to such Multiemployer Plan or any law pertaining
thereto; (iv) terminate any Defined Benefit Plan so as to result in any
liability; or (v) permit to exist any occurrence of any Reportable Event which
represents a material risk of a liability to the Seller or any ERISA Affiliate
of the Seller under ERISA or the Internal Revenue Code.
(f) Transfers of Accounts. The Seller will not convey, transfer or assign
any Accounts to any Person, except for Removed Accounts, unless the Rating
Agency Condition is satisfied.
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SECTION 5.3. INDEMNIFICATION. The Seller agrees to indemnify, defend and
hold the Purchaser harmless from and against any and all loss, liability,
damage, judgment, claim, deficiency, or expense (including interest, penalties,
reasonable attorneys' fees and amounts paid in settlement) (collectively,
"Indemnified Amounts") to which the Purchaser or any assignee thereof may become
subject insofar as such loss, liability, damage, judgment, claim, deficiency, or
expense arises out of or is based upon a breach by the Seller of its
representations, warranties and covenants contained herein, or any information
certified in any written schedule or certificate delivered by the Seller
hereunder being untrue in any material respect at the time so certified;
provided, however, neither the Purchaser nor any of its assignees shall be
entitled to indemnification hereunder for any Indemnified Amount to the extent
the same resulted from the gross negligence or willful misconduct of the
Purchaser or any of its assignees. The obligations of the Seller under this
Section 5.3 shall be considered to have been relied upon by the Purchaser and
shall survive the execution, delivery, performance and termination of this
Agreement and any sale or transfer of the Receivables or any interest therein by
the Purchaser, regardless of any investigation made by the Purchaser or on its
behalf.
ARTICLE VI
REPURCHASE OBLIGATION
SECTION 6.1. MANDATORY REPURCHASE. (a) If, on any day, the repurchase of
any Receivable which has been sold by the Seller hereunder shall be required
pursuant to Section 4.3 or 4.4 hereof, the Seller shall be deemed to have
received on such day a Collection of such Receivable in full and shall on such
day pay to the Purchaser an amount equal to the aggregate outstanding principal
balance of such Receivable, plus outstanding Finance Charge Receivables accrued
thereon through the date of such repurchase; provided that, prior to the
Termination Date, such amount may be paid, at the election of the Purchaser, by
a reduction in or an offset to the Purchase Price paid to the Seller on the next
occurring Purchase Date, unless the Purchaser is required to make a payment in
respect of such breach pursuant to the Pooling and Servicing Agreement;
provided, however, in all events at least the amount of any cash deposit
required to be made by the Purchaser under the Pooling and Servicing Agreement
in respect of the retransfer of such Ineligible Receivable shall be paid in
immediately available funds by the Seller.
(b) Repurchase of Receivables. If on any day the repurchase of all
Receivables which have been sold by the Seller hereunder shall be required
pursuant to Section 4.5 hereof, the Seller shall be deemed to have received on
such day a Collection of such Receivables in full and shall on such day pay to
the Purchaser an amount equal to the aggregate outstanding principal balance of
such Receivable, plus Finance Charges Receivables accrued thereon through the
date of such repurchase; provided, however, in all events at least the amount of
any cash deposit required to be made by the Purchaser under the Pooling and
Servicing Agreement in respect of the retransfer of such Ineligible Receivable
shall be paid in immediately available funds by the Seller.
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SECTION 6.2. DILUTIONS, ETC. If the Servicer or the Seller adjusts
downward the amount of any Receivable without receiving Collections therefor or
without charging off such amount as uncollectible, because of a rebate, refund,
unauthorized charge or billing error to an Obligor, or because such Receivable
was created in respect of merchandise or services which were refused, returned
or not received by an Obligor, then the Seller shall be deemed to have received
on such day a Collection of such Receivable in the amount of such reduction,
cancellation or payment made by the Obligor and shall on such day pay to the
Purchaser an amount equal to such reduction or cancellation; provided that,
prior to the Termination Date, such amount may be paid by a reduction in the
Purchase Price paid to the Seller on the next occurring Purchase Date, unless
the Purchaser is required to make a payment in respect of such breach sooner
pursuant to the Pooling and Servicing Agreement. Similarly, if the Servicer or
the Seller adjusts downward the amount of any Receivable because such Receivable
was discovered as having been created through a fraudulent or counterfeit charge
or with respect to which the covenant contained in Section 5.2(a) hereof was
breached, then the Seller shall be deemed to have received on such day a
Collection of such Receivable in the amount of such reduction, cancellation or
payment made by the Obligor and shall on such day pay to the Purchaser an amount
equal to such reduction or cancellation; provided that, prior to the Termination
Date, such amount may be paid by a reduction in the Purchase Price paid to the
Seller on the next occurring Purchase Date; provided, however, in all events at
least the amount of any cash deposit required to be made by the Purchaser under
the Pooling and Servicing Agreement in respect of any such adjustment shall be
paid in immediately available funds by the Seller. Any adjustment ("Adjustment
Payment Obligation"), required pursuant to either of the two preceding sentences
shall be made within two (2) Business Days of the making of the Adjustment
Payment Obligation, and in no event later than the end of the Monthly Period in
which such adjustment obligation arises.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.1. CONDITIONS TO THE PURCHASER'S OBLIGATIONS REGARDING
RECEIVABLES. The obligations of the Purchaser to purchase the Receivables on the
Closing Date and any Purchase Date shall be subject to the satisfaction of the
following conditions:
(a) All representations and warranties of the Seller contained in this
Agreement shall be true and correct on the Closing Date and on each Purchase
Date thereafter with the same effect as though such representations and
warranties had been made on such date (except to the extent any such
representation or warranty specifically related to an earlier date, in which
case such representation or warranty shall have been true as of such earlier
date);
(b) All information concerning the Receivables provided to the Purchaser
shall be true and correct in all material respects as of the Closing Date, in
the case of any Receivables
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existing on the Closing Date, or each Addition Date, in the case of any
Receivables created after the Closing Date, and in each Confirming Assignment;
(c) The Seller shall have substantially performed all other obligations
required to be performed by the provisions of this Agreement;
(d) The Seller shall have filed or caused to be filed the financing and
continuation statement(s) and all amendments thereto required to be filed
pursuant to Section 2.1(b); and
(e) All corporate and legal proceedings and all instruments in connection
with the transactions contemplated by this Agreement shall be satisfactory in
form and substance to the Purchaser, and the Purchaser shall have received from
the Seller copies of all documents (including, without limitation, records of
corporate proceedings) relevant to the transactions herein contemplated as the
Purchaser may reasonably have requested.
ARTICLE VIII
TERM AND TERMINATION
SECTION 8.1. TERM. This Agreement shall continue in full force and effect
from the date of its effectiveness as provided in Section 9.14 hereof until the
date following the earlier of (i) the date on which the Trustee declares a Pay
Out Event with respect to all outstanding Series of the Trust pursuant to the
Pooling and Servicing Agreement and any Supplements, (ii) the date on which the
Trust terminates, (iii) the date on which an Insolvency Event occurs with
respect to the Seller, (iv) the close of business on the third Business Day
following a conveyance of Receivables to the Purchaser for which the Purchaser
does not pay the Purchase Price in accordance with the provisions hereof, or (v)
the date on which either the Purchaser or the Seller becomes unable for any
reason to purchase or repurchase any Receivable in accordance with the
provisions of this Agreement or defaults on its obligations hereunder, which
default continues unremedied for more than thirty (30) days after written notice
(any such date being a "Termination Date"); provided, however, that the
termination of this Agreement pursuant to this Section 8.1 hereof 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 8.2. EFFECT OF TERMINATION. Following the termination of this
Agreement pursuant to Section 8.1, the Seller shall not sell, and the Purchaser
shall not purchase, any Receivables. No termination or rejection or failure to
assume the executory obligations of this Agreement in any proceeding regarding
an Insolvency Event 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, including, without limitation, pre-termination breaches of
representations and warranties by the Seller or the Purchaser. Without limiting
the foregoing, prior to termination, the failure of the Seller to deliver or
cause to be delivered computer records of
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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 Article V or Section 9.1 of this Agreement render an executed sale
executory.
ARTICLE IX
AMENDMENTS TO THIRD RESTATED AGREEMENT
SECTION 9.1. AMENDMENT TO THIRD RESTATED AGREEMENT. This Agreement amends
the Third Restated Agreement, Section 1.1 and the Definitions contained therein
of "Accounts," "Additional Accounts," "Eligible Receivable" and "Receivable" to
provide that all such terms, wherever used in such Third Restated Agreement
shall mean and refer only to those accounts, additional accounts, eligible
receivables and receivables that are not the subject of this Agreement and which
relate solely to accounts and additional accounts which have not been
contributed to and assumed by the Bank pursuant to the Contribution Agreement or
otherwise. It is the intent of the parties, as of the date of this Agreement,
that only open end revolving proprietary credit card accounts be contributed to
the Bank and that only receivables arising thereunder shall be the subject of
this Agreement. All other forms of accounts, additional accounts and receivables
thereunder shall remain subject to the Third Restated Agreement.
SECTION 9.2. CONTINUATION OF THIRD RESTATED AGREEMENT The Third Restated
Agreement shall be terminated as to all Accounts, Additional Accounts, Eligible
Receivables and Receivables with respect to open end revolving credit cards
accounts and all open end credit card credit offered to customers of Saks, all
of which shall be governed solely hereby upon and following the Effective Time.
With respect to all closed end credit granted under any other types of accounts
to customers of Saks, the Third Restated Agreement shall continue to control and
provide for the sale and transfer of all closed end receivables, which shall be
purchased by the purchaser named therein pursuant to the terms and upon the
conditions of the Third Restated Agreement, which shall continue in full force
and effect solely for such purpose.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. 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. Any reconveyance executed in
accordance with the provisions hereof shall not be considered an amendment to
this Agreement.
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SECTION 10.2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.3. 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
applicable telecopy number specified in (or pursuant to) this Section 10.3 and
confirmation is received, (ii) if given by mail three (3) Business Days
following such posting, postage prepaid, U.S. first class or overnight mail,
(iii) if given by overnight courier, such as FedEx, 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 (or pursuant to) this
Section 10.3.
(a) in the case of the Purchaser: with a copy to:
SFA Finance Company Saks Incorporated
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
The ▇▇▇▇▇▇▇▇▇▇ Company ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇ Floor Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
New York, New York Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Treasurer Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Executive Vice President and
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Chief Financial Officer
(b) in the case of the Seller:
National Bank of the Great Lakes
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chairman
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with a copy to:
Saks Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
(c) in the case of the Servicer:
Saks & Company
c/o ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Treasurer
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 10.4. 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 10.5. ASSIGNMENT. This Agreement may not be assigned by the
parties hereto, except that the Purchaser may assign its rights hereunder
pursuant to the Pooling and Servicing Agreement to the Trustee, for the benefit
of the Certificateholders. The Purchaser hereby notifies (and the Seller hereby
acknowledges that) the Purchaser, pursuant to the Pooling and Servicing
Agreement, has assigned all its rights hereunder to the Trustee. All rights of
the Purchaser hereunder may be exercised by the Trustee or its assignees, to the
extent of their respective rights pursuant to such assignments.
SECTION 10.6. 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 10.7. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the Purchaser, the Seller or the Trustee
(as assignee of the Purchaser), 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 10.8. NO BANKRUPTCY PETITION AGAINST THE PURCHASER OR TRUST. Each
of the Seller and the Servicer hereby covenants and agrees that, prior to the
date which is one year and one day after the payment in full of all
Certificates, it will not institute against, or join any other Person in
instituting against, the Purchaser or the Trust any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States.
SECTION 10.10. 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 10.10. BINDING EFFECT; THIRD-PARTY BENEFICIARIES. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. The Trustee on behalf of the
Certificateholders is intended by the parties hereto to be a third-party
beneficiary of this Agreement, but otherwise no Person not a party is intended
to or shall have any rights hereunder, whether as a third party beneficiary or
otherwise.
SECTION 10.11. MERGER AND INTEGRATION. Except as specifically stated
otherwise herein or incorporated hereby, 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 in writing
executed by the parties as provided herein.
SECTION 10.12. HEADINGS. The cover page, table of contents, and article
and section headings hereof are for purposes of convenience of reference only
and shall not otherwise affect the meaning or interpretation of any provision
hereof.
SECTION 10.13. EXHIBITS. The schedules and exhibits referred to
herein shall constitute a part of this Agreement and are incorporated into
this Agreement for all purposes.
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SECTION 10.14. EFFECTIVENESS OF AMENDMENT AND RESTATEMENT OF EXISTING
AGREEMENT. The effectiveness of this Agreement, and the amendments made hereto
to the Third Restated Agreement, shall be conditioned upon the occurrence of,
and shall become effective at the beginning of business in the first business
day immediately following, the Effective Time of the Merger.
IN WITNESS WHEREOF, the Seller, the Purchaser 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.
NATIONAL BANK OF THE GREAT LAKES, as
Seller
By:_________________________________
Name:____________________________
Title:___________________________
SFA FINANCE COMPANY, as Purchaser
By:_________________________________
Name:____________________________
Title:___________________________
SAKS & COMPANY, as Servicer
By:_________________________________
Name:____________________________
Title:___________________________
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EXHIBIT A
TO THE
RECEIVABLES PURCHASE AGREEMENT
FORM OF CONFIRMING ASSIGNMENT OF RECEIVABLES
IN ADDITIONAL ACCOUNTS
CONFIRMING ASSIGNMENT NO. ___ OF ADDITIONAL RECEIVABLES IN ACCOUNTS, dated
as of [insert applicable Determination Date] (the "Confirming Assignment"), by
and between NATIONAL BANK OF THE GREAT LAKES, a national banking association
(the "Seller"), and SFA FINANCE COMPANY, a Delaware corporation, (the
"Purchaser"), pursuant to the Receivables Purchase Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Seller, Saks & Company (the "Servicer") and the Purchaser are
parties to a Receivables Purchase Agreement, dated as of September 17, 1998 (as
such agreement may have been or may from time to time be, amended, supplemented,
restated or otherwise modified, the "Receivables Purchase Agreement");
WHEREAS, pursuant to subsection 2.2 of the Receivables Purchase Agreement,
Additional Accounts created during the Monthly Period immediately preceding the
date hereof have been included as Accounts, and Receivables in such Additional
Accounts, whether then existing or thereafter created, have been conveyed to the
Purchaser; and
WHEREAS, the Seller and the Purchaser are required to execute and deliver
this Confirming Assignment pursuant to subsection 2.2 of the Receivables
Purchase Agreement:
NOW, THEREFORE, the Seller and the Purchaser hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have the
meanings ascribed to them in the Receivables Purchase Agreement unless otherwise
defined herein.
2. Designation of Additional Accounts. The Seller is delivering herewith a
computer file, written list or microfiche list containing a true and complete
schedule identifying all Additional Accounts created and included as Accounts
during the Monthly Period immediately preceding the date hereof and specifying
for each such Account, as of the last billing date for such Account, its account
number and billing cycle, its collection status, the aggregate Amount
outstanding in such Account and the aggregate amount of Principal Receivables in
such Account. Such computer file, microfiche or written list shall be as of the
date of this Confirming Assignment incorporated into and made part of this
Confirming Assignment and the Receivables Purchase Agreement and is marked as
Schedule 1 to this Confirming Assignment.
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3. Conveyance of Receivables.
(a) The Seller does hereby confirm that on each Addition Date during the
Monthly Period immediately preceding the date hereof the Seller has transferred,
assigned, set over and otherwise conveyed to the Purchaser, without recourse
(except as expressly provided in the Receivables Purchase Agreement), all of its
right, title and interest in, to and under the Receivables then existing and
thereafter created in connection with the Additional Accounts added during such
Monthly Period and listed on Schedule 1, all monies due or to become due and all
amounts received with respect thereto after the Addition Date with respect
thereto and all proceeds thereof. The above described transfer, assignment,
set-over and conveyance does not constitute and is not intended to result in a
creation or an assumption by the Purchaser of any obligation of the Servicer,
the Seller or any other Person in connection with the Accounts, the Receivables
or under any agreement or instrument relating thereto, including, without
limitation, any obligation to any Obligors.
(b) In connection with such transfer, the Seller agrees to record and
file, if necessary to perfect the Purchaser's interest in the Receivables in
such Additional Accounts, at its own expense, financing statements (and
continuation statements with respect to such financing statements when
applicable) with respect to the Receivables now existing and hereafter created
in connection with the Additional Accounts listed on Schedule 1 for the transfer
of accounts meeting the requirements of applicable state law in such manner and
in such jurisdictions as are necessary to perfect the transfer and assignment of
the Receivables to the Purchaser, and to deliver file stamped copies of such
financing statements or other evidence of such filing to the Purchaser on or
prior to the date hereof. The Purchaser shall be under no obligation whatsoever
to file such financing statements, or any continuation statement to such
financing statements, or make any other filing under the UCC in connection with
such transfer.
(c) In connection with such transfer, the Seller further confirms that it
has, at its own expense, with respect to each Additional Account included on
Schedule 1, on or prior to the Addition Date relating thereto, indicated in its
books, records and computer files that all Receivables created in connection
with such Additional Account have been conveyed to the Purchaser.
4. Acceptance by Purchaser. Subject to the satisfaction of the conditions
set forth in Section 6 of this Confirming Assignment, the Purchaser hereby
acknowledges its acceptance on each Addition Date of all right, title and
interest to the property, then existing and thereafter created, conveyed to the
Purchaser by the Seller as described in subsection 3(a) of this Confirming
Assignment. The Purchaser further acknowledges that, prior to or simultaneously
with the execution and delivery of this Confirming Assignment, the Seller
delivered to the Purchaser the written list, computer file or microfiche list
described in Section 2 of this Confirming Assignment.
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5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Purchaser that, as of each Addition Date, each of
the representations and warranties contained in Article IV of the Receivables
Purchase Agreement to the extent the same relate to any Additional Accounts were
true and correct.
6. Conditions Precedent. The acceptance of the Purchaser set forth in
Section 4 hereof and the amendment of the Receivables Purchase Agreement as set
forth in Section 7 hereof, are subject to the satisfaction, on or prior to the
date hereof, of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Seller in Section 5 of this Confirming Assignment
shall have been true and correct as of the Addition Date.
(b) Additional Information. The Seller shall have delivered to the
Purchaser such information, if any, as was reasonably requested by the
Purchaser to satisfy itself as to the accuracy of the representations and
warranties set forth in this Confirming Assignment.
7. Amendment of the Receivables Purchase Agreement. The Receivables
Purchase Agreement is hereby amended by providing that all references to the
"Receivables Purchase Agreement", to "this Confirming Assignment" and "herein"
shall be deemed from and after the date hereof to be a dual reference to the
Receivables Purchase Agreement as supplemented by this Confirming Assignment.
Except as expressly amended hereby, all of the representations, warranties,
terms, covenants and conditions of the Receivables Purchase Agreement shall
remain unamended and shall continue to be, and shall remain in full force and
effect in accordance with their terms and except as expressly provided herein,
this Confirming Assignment shall not constitute or be deemed to constitute a
waiver of compliance with or consent to noncompliance with any term or provision
of the Receivables Purchase Agreement.
8. Counterparts. This Confirming Assignment may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument.
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9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned have caused this Confirming Assignment
of Additional Accounts to be duly executed and delivered by their respective
duly authorized officers on the day and the year first above written.
NATIONAL BANK OF THE GREAT LAKES, as
Seller
By:_________________________________
Name:____________________________
Title:___________________________
SFA FINANCE COMPANY, as Purchaser
By:_________________________________
Name:____________________________
Title:___________________________
SAKS & COMPANY, as Servicer
By:_________________________________
Name:____________________________
Title:___________________________
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EXHIBIT B
TO THE
RECEIVABLES PURCHASE AGREEMENT
FORM OF SUBORDINATED NOTE
US$100,000,000
August 17, 1998
FOR VALUE RECEIVED, the undersigned, SFA FINANCE COMPANY, a Delaware
corporation (the "Maker"), hereby unconditionally promises to pay to the order
of ____________________________ or any successor holder (the "Payee"), on the
earlier of December 31, 2000 or 91 days following termination of the Trust, the
lesser of the principal sum of up to ONE HUNDRED MILLION DOLLARS and NO/100
($100,000,000.00), or the aggregate unpaid principal amount of all advances of
funds hereunder ("Advances") to the Maker from the Payee pursuant to Section
3.2, and the other terms, of the Receivables Purchase Agreement, dated as of the
date hereof among the Maker, the Payee and National Bank of the Great Lakes (as
such agreement may from time to time be amended, supplemented, restated or
otherwise modified and in effect, the "Receivables Purchase Agreement"), in
lawful money of the United States of America in immediately available funds, and
to pay interest from the date thereof on the principal amount hereof from time
to time outstanding, in like funds, at said office, at the rate per annum equal
to one month LIBOR as published in the Money Rates Section of The Wall Street
Journal and shall be payable in arrears on the first day of each calendar month
(or if any such day is not a Business Day, on the succeeding Business Day).
Interest on each Advance shall be computed and paid based upon the actual number
of days elapsed and a year of 360 days.
The Maker hereby waives diligence, presentment, demand, protest and notice
of any kind whatsoever. The non-exercise by the holder hereof of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Subordinated Note and all payments and
prepayments of the principal hereof and interest hereon and the respective dates
thereof shall be endorsed by the holder hereof on the schedule attached hereto
and made a part hereof, or on a continuation thereof which shall be attached
hereto and made a part hereof, or otherwise recorded by such holder in its
internal records; provided, however, that (a) the failure of the holder hereof
to make such a notation or record or (b) any error in such a notation, shall not
in any manner affect the obligation of the Maker to make payments of principal
and interest in accordance with the terms of this Subordinated Note and the
Receivables Purchase Agreement. Any such notation or record shall be conclusive
and binding as to the date and amount of such Advance, or payment of principal
or interest thereon, absent manifest error.
The Maker shall have the right to borrow, repay and, subject to the
limitations set forth in the Receivables Purchase Agreement, reborrow Advances
made to it without penalty, premium or charge. The Maker shall be obligated to
repay Advances to the Payee only to the extent of
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funds available to the Purchaser from Collections on the Receivables and, to the
extent that such payments are insufficient to pay all amounts owing to the
Seller under this Subordinated Note, the Seller shall not have any claim against
the Purchaser for such amounts and no further or additional recourse shall be
available against Purchaser.
This Subordinated Note is the Subordinated Note referred to in the
Receivables Purchase Agreement. The indebtedness evidenced by this Subordinated
Note is subordinated to the prior payment in full of all of the Maker's recourse
obligations under the Pooling and Servicing Agreement. The subordination
provisions contained herein are for the direct benefit of, and may be enforced
by, the Trustee, the Certificateholders and/or any of their respective permitted
assignees pursuant to the Pooling and Servicing Agreement (collectively, the
"Senior Claimants") under the Pooling and Servicing Agreement. Until the date on
which all obligations of the Maker and/or the Servicer under the Pooling and
Servicing Agreement (all such obligations, collectively, the "Senior Claims")
have been indefeasibly paid and satisfied in full, the Payee shall not demand,
accelerate, ▇▇▇ for, take, receive or accept from the Maker, directly or
indirectly, in cash or other property or by set-off or any other manner
(including, without limitation, from or by way of collateral) any payment or
security of all or any of the indebtedness under this Subordinated Note or
exercise any remedies or take any action or proceeding to enforce the same;
provided, however, that nothing in this paragraph shall restrict the Maker from
paying, or the Payee from requesting, any payments under this Subordinated Note
so long as the Maker is not required under the Pooling and Servicing Agreement
to set aside for the benefit of, or otherwise pay over to, the funds used for
such payments to any of the Senior Claimants and further provided that the
making of such payment would not otherwise violate the terms and provisions of
the Pooling and Servicing Agreement. Should any payment, distribution or
security or proceeds thereof be received by the Payee in violation of the
immediately preceding sentence, the Payee agrees that such payment shall be
segregated, received and held in trust for the benefit of, and deemed to be the
property of, and shall be immediately paid over and delivered to the Trustee for
the benefit of the Senior Claimants.
Upon the occurrence of any Insolvency Event with respect to the Maker,
then and in any such event the Senior Claimants shall receive payment in full of
all amounts due or to become due on or in respect of the Senior Claims before
the Payee is entitled to receive payment on account of this Subordinated Note,
and to that end, any payment or distribution of assets of the Maker of any kind
or character, whether in cash, securities or other property, in any applicable
insolvency proceeding, which would otherwise be payable to or deliverable upon
or with respect to any or all indebtedness under this Subordinated Note, is
hereby assigned to and shall be paid or delivered by the Person making such
payment or delivery (whether a trustee in bankruptcy, a receiver, custodian or
liquidating trustee or otherwise) directly to the Trustee for application to, or
as collateral for the payment of, the Senior Claims until such Senior Claims
shall have been paid in full and satisfied.
Capitalized terms not otherwise defined herein are used herein with the
respective meanings given them in the Receivables Purchase Agreement.
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This Subordinated Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Subordinated Note as of the date first written above.
SFA FINANCE COMPANY
By:_________________________________
Name:____________________________
Title:___________________________
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ADVANCES AND PAYMENTS
Date and Amount Payments Unpaid Principal Name of Person
of Advance Principal/Interest Balance of Note Making Notation
---------- ------------------ --------------- ---------------
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EXHIBIT C
TO THE
RECEIVABLES PURCHASE AGREEMENT
LOCATION OF RECORDS OF SELLER
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EXHIBIT D
TO THE
RECEIVABLES PURCHASE AGREEMENT
SUBSIDIARIES, DIVISIONS, TRADE NAMES, BANKRUPTCY PROCEEDINGS
Great Lakes Credit Corporation
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