EXECUTION COPY
MSNB RECEIVABLES PURCHASE AGREEMENT
BETWEEN
DILLARD ASSET FUNDING COMPANY
as Purchaser
AND
MERCANTILE STORES NATIONAL BANK
DATED AS OF AUGUST 14, 1998
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS......................................................... 1
SECTION 1.1 Certain Defined Terms..................................................................... 1
SECTION 1.2 Other Definitional Provisions............................................................. 1
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES.............................................. 2
SECTION 2.1 Purchase and Sale of Receivables.......................................................... 2
SECTION 2.2 The Closings.............................................................................. 2
SECTION 2.3 The Purchase Price........................................................................ 2
ARTICLE III
REPRESENTATIONS AND WARRANTIES AND COVENANTS....................................... 3
SECTION 3.1 Representations and Warranties Regarding Purchased Assets................................. 3
SECTION 3.2 Representations and Warranties Regarding MSNB............................................. 4
SECTION 3.3 Representations and Warranties of the Purchaser........................................... 6
ARTICLE IV
CONDITIONS.......................................................... 8
SECTION 4.1 Conditions Precedent to the Purchaser's Initial Purchase of MSNB Receivables.............. 8
SECTION 4.2 Conditions Precedent to the Purchaser's Purchase of MSNB Receivables...................... 8
SECTION 4.3 Conditions to Obligation of MSNB.......................................................... 9
ARTICLE V
ADDITIONAL AGREEMENTS.................................................... 9
SECTION 5.1 Initial UCC Filings....................................................................... 9
SECTION 5.2 Computer Files Marked..................................................................... 9
SECTION 5.3 Protection of Title....................................................................... 10
SECTION 5.4 Other Liens or Interests.................................................................. 10
SECTION 5.5 Indemnification........................................................................... 10
SECTION 5.6 Credit and Collection Policy.............................................................. 11
SECTION 5.7 Reserved.................................................................................. 11
SECTION 5.8 Repurchase Events......................................................................... 11
SECTION 5.9 Further Assignments....................................................................... 11
SECTION 5.10 Sale Treatment........................................................................... 12
ARTICLE VI
MISCELLANEOUS PROVISIONS................................................... 12
SECTION 6.1 Amendment................................................................................. 12
SECTION 6.2 Survival.................................................................................. 12
SECTION 6.3 Notices................................................................................... 12
SECTION 6.4 GOVERNING LAW............................................................................. 13
SECTION 6.5 Waivers................................................................................... 13
SECTION 6.6 Costs and Expenses........................................................................ 13
SECTION 6.7 Confidential Information.................................................................. 13
SECTION 6.8 Headings.................................................................................. 14
SECTION 6.9 Counterparts.............................................................................. 14
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SECTION 6.10 Severability of Provisions............................................................... 14
SECTION 6.11 Further Assurances....................................................................... 14
SECTION 6.12 No Third-Party Beneficiaries............................................................. 14
SECTION 6.13 Merger or Consolidation of, or Assumption of the Obligations of, MSNB.................... 14
SECTION 6.14 Merger and Integration................................................................... 15
SECTION 6.15 No Petition Covenants.................................................................... 15
SECTION 6.16 No Recourse to Owner Trustee............................................................. 15
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MSNB RECEIVABLES PURCHASE AGREEMENT
This MSNB Receivables Purchase Agreement (the "Agreement") is
made as of August 14, 1998 by and between DILLARD ASSET FUNDING COMPANY, a
Delaware business trust (the "Purchaser"), and MERCANTILE STORES NATIONAL BANK,
a national banking association ("MSNB").
W I T N E S S E T H:
WHEREAS, the Purchaser desires to purchase Receivables and
related assets from MSNB from time to time; and
WHEREAS, MSNB is willing, on the terms, and subject to the
conditions set forth herein, to sell such Receivables and related assets to the
Purchaser.
NOW, THEREFORE, in consideration of the foregoing, the other
good and valuable consideration and the mutual terms and covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Defined Terms. Unless otherwise defined
herein, capitalized terms used in the above recitals and in this Agreement shall
have the respective meanings assigned them the Pooling and Servicing Agreement,
dated as of August 1, 1998 (as supplemented by the VFC 1998 Supplement, dated
August 14, 1998, among the Purchaser as transferor (in such capacity, the
"Transferor"), ▇▇▇▇▇▇▇ National Bank, as master servicer (in such capacity, the
"Master Servicer") and The Chase Manhattan Bank, as trustee (in such capacity,
the "Trustee"), the "Pooling and Servicing Agreement"), among the Transferor,
the Master Servicer and the Trustee, unless otherwise defined herein.
SECTION 1.2 Other Definitional Provisions. (a) Unless
otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in the Pooling and Servicing Agreement or any
certificate or other document made or delivered pursuant hereto or thereto.
(b) As used herein and in the Pooling and Servicing Agreement,
and in any certificate or other document made or delivered pursuant hereto,
accounting terms not defined in Section 1.1, and accounting terms partly defined
in Section 1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "thereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section and
subsection references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1 Purchase and Sale of Receivables. Subject to the satisfaction
of the conditions specified in Article IV, MSNB hereby sells, transfers, assigns
and otherwise conveys to the Purchaser, without recourse, and the Purchaser
hereby purchases from MSNB, all right, title and interest in, to and under all
Receivables (except for such Receivables previously sold, transferred,
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assigned or otherwise conveyed to Mersco Factors, Inc. ("MFI")) created and
arising under the Accounts identified in the list of Accounts (an "Account
List") previously delivered to the Purchaser (such Receivables, the "Designated
MSNB Receivables") and all monies, due or to become due with respect thereto
after the close of the second Business Day preceding the date hereof (such as of
date, the "Initial Cutoff Date"), all Finance Charge Receivables relating to
such Accounts, all proceeds of such Receivables and all Insurance Proceeds
relating to such Receivables (collectively, the "Existing Purchased Assets").
After the Initial Cutoff Date, each newly created account
(each, an "Additional Account") shall be automatically included as an "Account"
hereunder and on the day of creation thereof (each, an "Addition Date") MSNB
shall sell, transfer, assign and otherwise convey to the Purchaser, without
recourse, and the Purchaser shall purchase from MSNB, all right, title and
interest in, to and under all Receivables then existing and thereafter created
and arising under such Accounts (collectively, with the Designated MSNB
Receivables, the "MSNB Receivables") and all monies, due or to become due with
respect thereto as of such date of creation (such as of date, the "Additional
Cutoff Date"), including all Finance Charge Receivables relating to such
Receivables, all proceeds of such Receivables and all Insurance Proceeds
relating to such Receivables (collectively, the "Subsequent Purchased Assets";
together with the Existing Purchased Assets, the "Purchased Assets"). From time
to time MSNB shall, at the request of the Purchaser, deliver to the Purchaser an
Account List as of an agreed upon date setting forth such information regarding
the Accounts and the Receivables therein as the Purchaser may reasonably
request.
SECTION 2.2 The Closings. The consummation of each purchase
and sale contemplated by Section 2.1 shall take place at such place and at such
time as MSNB and the Purchaser may agree upon. This Agreement shall be effective
as of the date hereof (the "Closing Date") upon its execution by MSNB and the
Purchaser.
SECTION 2.3 The Purchase Price. In consideration for the sale
to the Purchaser of the Existing Purchased Assets on the Closing Date, the
Purchaser shall pay to MSNB, on such Closing Date, an amount equal to the
aggregate unpaid principal balance, if any, of the Receivables included in such
Purchased Assets as of the Initial Cutoff Date for such Receivables. Such
purchase price shall be paid to MSNB in immediately available funds. Thereafter,
on the second Business Day following the date on which a MSNB Receivable a
created, the Purchaser shall pay to MSNB, on such day, an amount equal to the
aggregate unpaid principal balance of such Receivable as of such date of
creation. Such purchase price shall be paid to MSNB in immediately available
funds.
ARTICLE III
REPRESENTATIONS AND WARRANTIES AND COVENANTS
SECTION 3.1 Representations and Warranties Regarding
Purchased Assets.
(a) MSNB represents and warrants to the Purchaser as follows
with respect to the Designated
MSNB Receivables:
(i) Eligible Accounts. As of the Initial Cutoff Date, each
existing Account is an Eligible Account and no selection procedures
adverse to the Purchaser have been employed in selecting the Accounts
from among the Eligible Accounts in the Bank Portfolio.
(ii) Eligible Receivables. (w) as of the Closing
Date, each MSNB Receivable
in an existing Account is an Eligible Receivable;
(x) as of the Closing Date, each MSNB Receivable in
an existing Account has been conveyed to the Purchaser (1)
free and clear of any Lien of any Person claiming through or
under MSNB or any of its Affiliates and (2) in compliance, in
all material respects, with all Requirements of Law applicable
to MSNB;
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(y) as of the Closing Date, with respect to each MSNB
Receivable in an existing Account, all consents, licenses,
approvals or authorizations of, or registrations or
declarations with, any Governmental Authority required to be
obtained, effected or given by MSNB in connection with the
conveyance of such MSNB Receivable to the Purchaser have been
duly obtained, effected or given and are in full force and
effect; and
(z) as of the Closing Date, the information regarding
such MSNB Receivables and the Accounts related thereto set
forth in the related Account List is true and correct in all
material respects.
(b) On each day on which a new MSNB Receivable is created,
MSNB shall be deemed to represent and warrant to the Purchaser as follows:
(i) Eligible Receivables. (w) each such MSNB Receivable
created on such day is an Eligible Receivable;
(x) each such MSNB Receivable created on such day has
been conveyed to the Purchaser (1) free and clear of any Lien
of any Person claiming through or under MSNB or any of its
Affiliates and (2) in compliance, in all material respects,
with all Requirements of Law applicable to MSNB;
(y) with respect to each such MSNB Receivable created
on such day, all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any
Governmental Authority required to be obtained, effected or
given by MSNB in connection with the conveyance of such MSNB
Receivable to the Purchaser have been duly obtained, effected
or given and are in full force and effect; and
(z) the information regarding such MSNB Receivable
and the Accounts related thereto set forth in the related
Account List is true and correct in all
material respects.
(c) On each Addition Date, MSNB shall be deemed to represent
and warrant to the Purchaser that, as of such date each Account created on such
date is an Eligible Account and no selection procedures adverse to the Purchaser
have been employed in selecting such Account from among the Eligible Accounts in
the Bank Portfolio.
(d) This Agreement, when duly executed and delivered,
constitutes either:
(i) a valid transfer, assignment, set-over and
conveyance to the Purchaser of all right, title and interest
of MSNB in, to and under the MSNB Receivables now existing and
hereafter created and arising in connection with the Accounts,
and all proceeds of such MSNB Receivables and Insurance
Proceeds relating thereto, and such MSNB Receivables and all
proceeds thereof and Insurance Proceeds relating thereto will
be held by the Purchaser free and clear of any Lien of any
Person claiming through or under MSNB or any of its
Affiliates; or
(ii) a grant of a security interest (as defined in the UCC)
in such property to the Purchaser, which is enforceable with
respect to the Designated MSNB Receivables, the proceeds thereof
and Insurance Proceeds relating thereto upon execution and
delivery of this Agreement, and which will be enforceable with
respect to MSNB Receivables hereafter created, the proceeds
thereof and Insurance Proceeds relating thereto, upon such
creation. If this Agreement constitutes the grant of a security
interest to the Purchaser in such property, upon the filing of
the financing statement described in Section 5.1, and in the case
of the MSNB Receivables hereafter created
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and proceeds thereof and Insurance Proceeds relating thereto,
upon such creation, the Purchaser shall have a first priority
perfected security interest in such property (subject to Section
9-306 of the UCC).
SECTION 3.2 Representations and Warranties Regarding MSNB.
MSNB represents and warrants to the Purchaser as of the date hereof and as of
each Purchase Date (as defined below and, as applicable, with respect to the
MSNB Receivables sold, transferred, assigned or otherwise conveyed to the
Purchaser on such date), that:
(a) Organization and Good Standing. MSNB has been duly
organized and is validly existing as a national banking association in
good standing under the laws of the United States of America, with
power and authority to own its properties and to conduct its business
as such properties are presently owned and such business is presently
conducted, and had at all relevant times, and now has, power, authority
and legal right to acquire and own the MSNB Receivables.
(b) Due Qualification. MSNB is duly qualified to do business
as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business requires
such qualification except to the extent that the failure to comply
therewith would not, in the aggregate, have a material adverse effect
with respect to MSNB.
(c) Power and Authority. MSNB has the corporate power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder and the execution, delivery and performance of
this Agreement have been duly authorized by MSNB by all necessary
corporate action on the part of MSNB. MSNB has the corporate power and
authority to sell and assign to the Purchaser the Purchased Assets and
has duly authorized such transfers by all necessary corporate action on
the part of MSNB.
(d) Binding Obligation. This Agreement, when duly executed and
delivered, shall constitute a legal, valid and binding obligation of
MSNB enforceable against MSNB in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(e) No Violation. The execution and delivery of this Agreement
by MSNB and its performance of its obligations hereunder will not
violate any Requirements of Law or contractual obligation of MSNB, and
will not result in, or require, the creation or imposition of any Lien
upon any of its property or assets pursuant to any such Requirements of
Law or contractual obligation.
(f) No Proceedings. There are no actions, proceedings or, to
MSNB's knowledge, investigations pending or, to MSNB's knowledge,
threatened, before any Governmental Authority (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement, or (iii)
seeking any determination or ruling that would reasonably be expected
to have a material adverse effect with respect to MSNB.
(g) No Consent. Except as expressly contemplated by the Pooling
and Servicing Agreement, no consent or authorization of, filing with,
or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the execution, delivery,
performance, validity or enforceability against MSNB of this
Agreement.
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(h) No Default. MSNB is not in default under or with respect
to any of its contractual obligations which would have a material
adverse effect with respect to it.
(i) Taxes. No notice of any Lien in respect of unpaid taxes or
assessments has been filed by any taxing authority against, or
otherwise affecting the assets of, MSNB or any of its subsidiaries and
remains in effect.
(j) ERISA. No notice of a Lien arising under Title I or Title
IV of ERISA has been filed under Section 6323(a) of the Code (or any
successor provision) against, or otherwise affecting the assets of
MSNB.
(k) Solvency. MSNB is, and after giving effect to the
transactions contemplated to occur on such date, will be, solvent and
MSNB is paying its debts as they become due. In addition, MSNB after
giving effect to the transactions contemplated by this Agreement will
have adequate capital to conduct its business.
(l) Principal Place of Business. MSNB's principal place of
business is located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and
there have been no other such locations during the previous five years.
(m) Name. MSNB's legal name is as set forth herein, there has
been no name change in the last two years and MSNB has no tradenames,
fictitious names, assumed names or "doing business as" names.
SECTION 3.3 Representations and Warranties of the Purchaser.
The Purchaser hereby represents and warrants to MSNB as of the date hereof and
as of each Purchase Date (and, as applicable, with respect to the MSNB
Receivables sold, transferred, assigned or otherwise conveyed to the Purchaser
on such date), that:
(a) Organization and Good Standing. The Purchaser has been
duly organized and is validly existing as a business trust under the
laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are presently
owned and such business is presently conducted, and has the power,
authority and legal right to acquire and own the Purchased Assets.
(b) Due Qualification. The Purchaser is duly qualified to do
business as a foreign [corporation] in good standing, and has obtained
all necessary licenses and approvals in all jurisdictions, in which the
ownership or lease of property or the conduct of its business requires
such qualification except to the extent that the failure to comply
therewith would not have a material adverse effect with respect to the
Purchaser.
(c) Power and Authority. The Purchaser has the power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder and the execution, delivery and performance of
this Agreement have been duly authorized by all necessary action on the
part of the Purchaser.
(d) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Purchaser enforceable against the
Purchaser in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditors' rights in general
and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(e) No Violation. The execution and delivery of this Agreement
by the Purchaser and its performance of its obligations hereunder will
not violate any Requirements of Law or
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contractual obligation of the Purchaser, and will not result in, or
require, the creation or imposition of any Lien upon any of its
property or assets pursuant to any such Requirements of Law or
contractual obligation, other than as contemplated by the Pooling and
Servicing Agreement.
(f) No Material Litigation. No litigation or proceeding or, to
the knowledge of the Purchaser, investigation of or before any
arbitrator or Governmental Authority is pending or, to the knowledge
of the Purchaser, threatened by or against the Purchaser or against
any of its properties or revenues (i) with respect to the Pooling and
Servicing Agreement or any of the transactions contemplated thereby or
hereby or (ii) which would reasonably be expected to have a material
adverse effect with respect to the Purchaser.
(g) No Consent. Except as expressly contemplated by the Pooling
and Servicing Agreement, no consent or authorization of, or filing
with, or other act by or in respect of, any Governmental Authority or
any other Person is required in connection with the execution,
delivery, performance, validity or enforceability against the
Purchaser of this Agreement.
(h) Injunction. There is no injunction, writ, restraining order
or any other type of order which would adversely affect the
Purchaser's ability to perform its obligations hereunder.
(i) Solvency. The Purchaser is solvent and after giving effect to
the transactions contemplated herein will be solvent and the Purchaser
is paying all debts as they become due and after giving effect to the
transactions contemplated herein the Purchaser will have adequate
capital to conduct its business.
(j) Name. The Purchaser's legal name is as set forth herein and
the Purchaser has no tradenames, fictitious names, assumed names or
"doing business as" names.
ARTICLE IV
CONDITIONS
SECTION 4.1 Conditions Precedent to the Purchaser's Initial
Purchase of MSNB Receivables. The obligation of the Purchaser to purchase from
MSNB the Purchased Assets on the Closing Date is subject to the satisfaction of
the following conditions:
(a) Agreements and Terminations. The Purchaser shall have
received from MSNB (i) this Agreement, duly executed by MSNB, (ii) the
Mercantile Termination Agreement, dated as of the date hereof, between
MFI and MSNB, duly executed by MFI and MSNB and (iii) certain UCC
termination statements identified on Schedule 1 hereto, duly executed
by MFI.
(b) Certificate of Incorporation; By-laws. The Purchaser shall
have received a true and complete copy of the certificate of existence
of MSNB, certified as a true and correct copy thereof by the Office
of the Comptroller of the Currency, and a true and complete copy of
the by-laws of MSNB, certified as a true and correct copy thereof by
the Secretary or an Assistant Secretary of MSNB.
(c) Resolutions. The Purchaser shall have received copies of
duly adopted resolutions of the Board of Directors of MSNB in form and
substance reasonably satisfactory to the Purchaser, authorizing the
execution, delivery and performance of this Agreement, the documents to
be delivered by MSNB hereunder and the transactions contemplated
hereby, certified by the Secretary or an Assistant Secretary of MSNB.
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(d) Incumbency Certificate. The Purchaser shall have received
a certificate as to the incumbency and signature of the officers of
MSNB authorized to sign this Agreement on behalf of MSNB.
(e) Representations and Warranties. The representations and
warranties of MSNB contained in Sections 3.1 and 3.2 of this Agreement
or in any certificate delivered in connection with this Agreement
(other than those made as of a specified date specified therein) are
true and correct in all material respects and with the same force and
effect as though such representations and warranties had been made as
of such date.
SECTION 4.2 Conditions Precedent to the Purchaser's Purchase
of MSNB Receivables. The obligation of the Purchaser to purchase Receivables and
the related Purchased Assets to be purchased hereunder on any date after the
Closing Date is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations
and warranties of MSNB hereunder with respect to such Purchased Assets
shall be true and correct on and as of such date with the same effect
as if then made, and MSNB shall have performed all obligations with
respect to such Purchased Assets to be performed by it hereunder on or
prior to such date.
(b) Nonoccurrence of Certain Events. No VFC Series 1998 Pay
Out Event or Master Servicer Default (unless such Master Servicer
Default shall have been waived as provided in the Pooling and Servicing
Agreement) shall have occurred on or prior to such Purchase Date.
(c) Documents to be Delivered. MSNB shall have provided such
other documents as the Purchaser may reasonably request.
SECTION 4.3 Conditions to Obligation of MSNB. The obligation
of MSNB to sell to the Purchaser the Purchased Assets to be sold hereunder on
any date is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations
and warranties of the Purchaser hereunder shall be true and correct on
such date with the same effect as if then made.
(b) Purchase Price. The Purchaser shall have paid to MSNB the
related purchase price as provided in Section 2.3 of this Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.1 Initial UCC Filings. Within two Business Days of
the Closing Date, MSNB shall record and file, at its own expense, a UCC-1
financing statement in each jurisdiction in which required by applicable law,
executed by MSNB as seller or debtor, naming the Purchaser as purchaser or
secured party, naming as collateral the Purchased Assets to be purchased and
sold hereunder from time to time, meeting the requirements of the laws of each
such jurisdiction and in such manner as is necessary to perfect under the UCC
the sale, transfer, assignment and conveyance to the Purchaser of such Purchased
Assets (to the extent constituting UCC collateral). MSNB shall deliver a
file-stamped copy, or other evidence reasonably satisfactory to the Purchaser of
such filings, to the Purchaser as soon as available after such filings.
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SECTION 5.2 Computer Files Marked. MSNB shall, at its own
expense, within 10 Business Days of each date on which Purchased Assets are sold
hereunder (each, a "Purchase Date"), indicate in its computer files that such
Purchased Assets have been sold to the Purchaser pursuant to this Agreement.
SECTION 5.3 Protection of Title.
(a) MSNB shall execute and file such financing statements, and
cause to be executed and filed such continuation and other statements, all in
such manner and in such places as may be required by law fully to perfect and
preserve the sale hereunder to the Purchaser of the MSNB Receivables and the
related Purchased Assets and in the proceeds thereof and hereby authorizes the
Purchaser to file financing statements and amendments thereto and continuation
statements relative to all or any part thereof without the signature of MSNB
where permitted by law. MSNB shall deliver to (or cause to be delivered) to the
Purchaser file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) Except in connection with the DNB Transactions (as defined
below), MSNB shall not change its name, identity or corporate structure in any
manner that would, could or might make any financing statement or continuation
statement filed by MSNB in accordance with Section 5.1 or 5.3(a) seriously
misleading within the meaning of Section 9-402(7) of the UCC, unless it shall
have given the Purchaser at least 60 days prior written notice thereof and shall
file such financing statements or amendments as may be necessary to continue the
perfection of the Purchaser's interest in all Purchased Assets sold hereunder.
(c) MSNB hereby represents and warrants that its chief place
of business and principal executive office, and the place where its principal
records pertaining to the MSNB Receivables and the related Purchased Assets are
kept, is located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and there are no
other such locations. Except for any relocation resulting from the DNB
Transactions, MSNB shall give the Purchaser at least 60 days prior written
notice of any relocation of its principal executive office if, as a result of
such relocation, the applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or continuation statement or
of any new financing statement. MSNB shall at all times maintain each office
from which it services Receivables and its principal executive office within the
United States of America.
SECTION 5.4 Other Liens or Interests. Except for the
conveyances (i) hereunder and as contemplated by the Pooling and Servicing
Agreement or (ii) made in connection with the DNB Transactions, MSNB shall not
sell, pledge, assign or transfer any Purchased Assets to any other Person, or
grant, create, incur, assume or suffer to exist any Lien thereon and MSNB shall
defend the right, title and interest of the Purchaser in, to and under all
Purchased Assets sold hereunder against all claims of third parties claiming
through or under MSNB.
SECTION 5.5 Indemnification. MSNB shall indemnify the
Purchaser for any liability as a result of the failure of a Receivable
transferred hereunder to be originated in compliance with all requirements of
law and for any breach of any of its representations and warranties with respect
thereto contained herein unless such breach shall be cured in all material
respects. This indemnity obligation shall be in addition to any obligation that
MSNB may otherwise have.
SECTION 5.6 Credit and Collection Policy.
From and after the Closing Date, MSNB shall not make any
change or modification to the credit criteria applied in respect of the
origination of MSNB Receivables or the credit review process followed in
connection with the origination of MSNB Receivables (collectively, the "Credit
and Collection Policy"), that could reasonably be expected to have a material
adverse effect on the Purchaser, as purchaser thereof.
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SECTION 5.7 Reserved.
SECTION 5.8 Repurchase Events. (a) MSNB hereby covenants and
agrees with the Purchaser that in the event of (i) a breach of any of MSNB's
representations and warranties contained in Sections 3.1(a), (b) or (c) hereof
with respect to any MSNB Receivable, unless such breach shall have been cured in
all material respects within a period acceptable to the Purchaser (but not more
than 150 days), or (ii) a breach by MSNB of Section 5.4 hereof with respect to
any MSNB Receivable, which breach has a material adverse effect on the
Purchaser's interest in such MSNB Receivable or (iii) a breach of any of MSNB's
representations and warranties contained in Section 3.1(d) (such MSNB
Receivable, in either event, a "Warranty Receivable"), MSNB will, upon request
by the Purchaser, repurchase such Warranty Receivable from the Purchaser by
delivering to the Purchaser an amount equal to the unpaid principal amount of
such MSNB Receivable as of the close of business on the second Business Day
preceding such date of reassignment (the "Warranty Payment"). A breach by MSNB
of any of its representations contained in Section 3.1(d) hereof with respect to
any MSNB Receivable shall constitute a breach with respect to all MSNB
Receivables. It is understood and agreed that the obligation of MSNB to
repurchase any Warranty Receivable as to which a breach has occurred and is
continuing shall, if such obligation is fulfilled, constitute the sole remedy
against MSNB for such breach available to the Purchaser or the Trustee.
(b) Upon receipt by the Purchaser of the Warranty Payment,
the Purchaser shall assign, without recourse, representation or warranty, to
MSNB all of the Purchaser's right, title and interest in, to and under (i) such
Warranty Receivable and all monies due thereon, (ii) any proceeds from any
Insurance Policies with respect to such Warranty Receivable, (iii) any proceeds
from any guaranties of such Warranty Receivable, (iv) proceeds of the property
described in clauses (i) through (iii) above and (v) this Agreement with respect
to such Warranty Receivable, such assignment being an assignment outright and
not for security. Upon the assignment of such Warranty Receivable and related
rights, MSNB shall own such Warranty Receivable and all such security and
documents, free of any further obligations to the Purchaser with respect
thereto. If in any proceeding it is held that MSNB may not enforce a Warranty
Receivable on the ground that it is not a real party in interest or a holder
entitled to enforce the Warranty Receivable, the Purchaser shall, at MSNB's
expense, take such steps as MSNB deems necessary to enforce the Warranty
Receivable, including bringing suit in the name of such Person.
SECTION 5.9 Further Assignments. MSNB acknowledges that the Purchaser
shall from time to time, sell, pledge, assign or transfer all of its right,
title and interest in the Purchased Assets and its rights hereunder to the
Trustee pursuant to the Pooling and Servicing Agreement. MSNB consents to such
assignment and agrees that the Trustee, to the extent provided in the Pooling
and Servicing Agreement, shall be entitled to enforce the terms of this
Agreement and the rights (including, without limitation, the right to grant or
withhold any consent or waiver) of the Purchaser directly against MSNB. In each
case, MSNB further agrees that, in respect of its obligations hereunder, it will
act at the direction of and in accordance with all requests and instructions
from the Trustee delivered pursuant to the Pooling and Servicing Agreement until
the satisfaction of all obligations thereunder. Except as otherwise contemplated
by the Pooling and Servicing Agreement, the Trustee shall have the rights of
third-party beneficiary under this Agreement. MSNB shall deliver copies of all
notices, requests, demands and other documents to be delivered by it to the
Purchaser pursuant to the terms hereof to the Trustee.
SECTION 5.10 Sale Treatment. MSNB and the Purchaser intend to treat
the transfer and assignment described herein as a sale for accounting and tax
purposes.
ARTICLE VI
MISCELLANEOUS PROVISIONS
10
SECTION 6.1 Amendment. This Agreement may be amended from time
to time by a written amendment duly executed and delivered by MSNB and the
Purchaser, with the prior written consent of the Trustee; provided, however,
that no amendment shall be made without a confirmation by each of the Rating
Agencies that such action will not result in a withdrawal or downgrade of its
then current ratings of the outstanding Commercial Paper.
SECTION 6.2 Survival. The representations, warranties and
covenants of MSNB set forth in Article V of this Agreement shall remain in full
force and effect and shall survive each sale of Receivables under Article II
hereof and any related transfer under the Pooling and Servicing Agreement.
SECTION 6.3 Notices. Except where telephonic instructions or
notices are authorized herein to be given, all notices, requests and demands to
or upon the respective parties hereto to be effective shall be in writing and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand or by overnight courier, or, in the case of
telecopy notice, when received, addressed as follows or to such address or other
address as may be hereafter notified by the respective parties hereto:
Purchaser: DILLARD ASSET FUNDING COMPANY
c/o Chase Manhattan Bank Delaware,
as Owner Trustee
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration Department
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to
The Chase Manhattan Bank, as Trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Structured Finance Services
MSNB: MERCANTILE STORES NATIONAL BANK
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telecopy:
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telecopy:
S&P: Standard & Poors Rating Group
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telecopy:
11
SECTION 6.4 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 6.5 Waivers. No failure or delay on the part of any
party in exercising any power, right or remedy under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or remedy preclude any other or further exercise thereof or
the exercise of any other power, right or remedy.
SECTION 6.6 Costs and Expenses. MSNB agrees to pay all
reasonable out-of-pocket costs and expenses of the Purchaser, including fees and
expenses of counsel, in connection with the perfection as against third parties
of the Purchaser's right, title and interest in, to and under all Receivables
purchased hereunder and the enforcement of any obligation of MSNB hereunder.
SECTION 6.7 Confidential Information. The Purchaser agrees
that it shall neither use nor disclose to any person the names and addresses of
the obligors with respect to any Receivables purchased hereunder, except in
connection with the enforcement of the Purchaser's rights hereunder, under the
MSNB Receivables, under the Pooling and Servicing Agreement or as required by
law.
SECTION 6.8 Headings. The various headings in this Agreement
are for purposes of reference only and shall not affect the meaning or
interpretation of any provision of this Agreement.
SECTION 6.9 Counterparts. This Agreement may be executed in
two or more counterparts, and by different parties on separate counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
SECTION 6.10 Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed enforceable to the fullest extent permitted, and if not
so permitted, shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or the
Pooling and Servicing Agreement or rights of any party thereto.
SECTION 6.11 Further Assurances. MSNB and the Purchaser agree
to do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by the other more fully
to effect the purposes of this Agreement, including the execution of any
financing statements or continuation statements relating to any Receivables
purchased hereunder for filing under the provisions of the UCC of any applicable
jurisdiction.
SECTION 6.12 No Third-Party Beneficiaries. Except as
specifically set forth herein, this Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
permitted assigns; provided that, except as provided in Section 6.13, MSNB
shall not assign or transfer any or all of its rights and obligations hereunder
without the prior written consent of the Purchaser. The Purchaser shall give
written notice to the Rating Agencies of any such consent that it grants.
Except as otherwise expressly provided in this Agreement, no other Person shall
have any right or obligation hereunder.
SECTION 6.13 Merger or Consolidation of, or Assumption of the
Obligations of, MSNB. Any Person (a) into which MSNB may be merged or
consolidated, (b) resulting from any merger, conversion or consolidation to
which MSNB shall be a party, (c) succeeding to the business of MSNB, or (d) more
than 50% of the voting stock of which is owned, directly or indirectly, by
▇▇▇▇▇▇▇'▇ Inc., which Person in any of the foregoing cases executes an agreement
of assumption to perform every
12
obligation of MSNB under this Agreement shall be the successor to MSNB under
this Agreement without the execution or filing of any paper or any further act
on the party of any of the parties to this Agreement; provided, however, that
MSNB, except with respect to any merger of MSNB with, sale of Receivables,
Accounts or other assets to or assumption of the obligations of MSNB hereunder
by Dillard National Bank or an affiliate thereof (the "DNB Transactions"), shall
have delivered to the Purchaser, the Trustee, Park Avenue Receivables
Corporation, as purchaser under the Certificate Purchase Agreement, and the
Funding Agent on behalf of the APA Banks an Opinion of Counsel either (A)
stating that, in the opinion of such counsel, all financing statements and
continuation statements and amendments thereto have been executed and filed that
are necessary fully to preserve and protect the interest of the Purchaser and
the Trustee, respectively, in the MSNB Receivables and reciting the details of
such filings or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interests.
SECTION 6.14 Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 6.15 No Petition Covenants. Notwithstanding any prior
termination of this Agreement, MSNB shall not, prior to the date which is one
year and one day after payment in full of all obligations hereunder, acquiesce,
petition or otherwise invoke or cause the Purchaser to invoke or join any other
Person in instituting the process of any court or government authority for the
purpose of commencing or sustaining a case against the Purchaser any bankruptcy,
reorganization, arrangement, insolvency, liquidation proceeding, or similar law
of the United States or any state of the United States. Nothing in this Section
6.15 shall preclude, or be deemed to estop, MSNB from taking or omitting to take
any action prior to such date in (i) any case or proceeding voluntarily filed or
commenced by or on behalf of the Purchaser under or pursuant to any such law or
(ii) any involuntary case or proceeding pertaining to the Purchaser which is
filed or commenced by or on behalf of a Person other than the Purchaser (or any
Person to which the Purchaser shall have assigned, transferred or otherwise
conveyed any part of the obligations of the Purchaser hereunder) under or
pursuant to any such law.
SECTION 6.16 No Recourse to Owner Trustee. It is expressly
understood and agreed by and between the parties hereto (i) that this Agreement
is executed and delivered by Chase Manhattan Bank Delaware, not in its
individual capacity but solely as owner trustee (in such capacity, the "Owner
Trustee"), under the Trust Agreement, dated as of the date hereof (the "Trust
Agreement"), among Condev Nevada, Inc., the Owner Trustee and [▇▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇ as Administrators], in the exercise of the power and authority
conferred and vested in it as such Owner Trustee, (ii) each of the
representations, undertakings and agreements made herein by the Purchaser are
not personal representations, undertakings and agreements of Chase Manhattan
Bank Delaware, but are binding only on the Purchaser created pursuant to the
Trust Agreement, (iii) nothing contained herein shall be construed as creating
any liability on Chase Manhattan Bank Delaware, individually or personally, to
perform any covenant of the Purchaser either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any person claiming by, through or under any such party, and (iv) under
no circumstances shall Chase Manhattan Bank Delaware be personally liable for
the payment of any indebtedness or expense of the Purchaser or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Purchaser under this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the date and year first above written.
DILLARD ASSET FUNDING COMPANY
By: CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
By:
-------------------------------------
Name:
Title:
MERCANTILE STORES NATIONAL BANK
By:
--------------------------------------
Name:
Title:
MSNB RECEIVABLES PURCHASE AGREEMENT