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EXHIBIT 10.4
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RECEIVABLES PURCHASE AGREEMENT
among
XXXX STORES OF VIRGINIA LLC,
as Seller
and
XXXX, INC.,
as Purchaser
and
THE XXXX CENTER, INC.
as Servicer
Dated as of January 30, 1999
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RECEIVABLES PURCHASE AGREEMENT
This RECEIVABLES PURCHASE AGREEMENT, dated as of January 30, 1999 (as
amended, supplemented or otherwise modified and in effect from time to time,
this "Agreement"), among XXXX STORES OF VIRGINIA LLC, a North Carolina limited
liability company, as seller (in such capacity, the "Seller"), XXXX, INC., a
Delaware corporation, as purchaser (in such capacity, the "Purchaser"), THE XXXX
CENTER, INC., a North Carolina corporation, as servicer (the "Servicer" or "Belk
Center").
W I T N E S S E T H :
WHEREAS, the Purchaser desires to purchase from time to time certain
accounts receivable existing on the Closing Date and acquired or generated
thereafter in the normal course of the Seller's business pursuant to certain
revolving consumer credit card accounts;
WHEREAS, the Seller desires to sell and assign from time to time such
accounts receivable to the Purchaser upon the terms and conditions hereinafter
set forth;
WHEREAS, the Servicer has agreed to service the accounts receivable
sold to the Purchaser by the Seller hereunder;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed by and among
the Purchaser, the Seller and the Servicer as follows:
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ARTICLE 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 Note Purchase Agreement, and shall
include in the singular number the plural and in the plural number the singular:
"Agent" shall mean NationsBank, N.A., as agent on behalf of Enterprise
and the Bank Investors pursuant to the Note Purchase Agreement, and any
successor thereto appointed pursuant to Article IX thereof.
"Bank Investors" shall have the meaning specified in the Note Pledge
Agreement.
"Closing Date" shall mean January 30, 1999.
"Eligible Receivable" shall have the meaning specified in the Note
Purchase Agreement.
"Enterprise" shall mean Enterprise Funding Corporation, a Delaware
corporation, and its successors and assigns.
"Event of Bankruptcy" shall have the meaning specified in the Note
Purchase Agreement.
"Note Purchase Agreement" shall mean the Note Purchase and Security
Agreement, dated as of June 12, 1998, by and among the Purchaser, Belk Center,
as Servicer, Enterprise Funding Corporation and NationsBank, N.A., as Agent and
Bank Investor, as such agreement has been amended by the Amendment No. 1 to Note
Purchase and Security Agreement dated as of the date hereof, and as such
agreement may be further amended, modified or supplemented from time to time.
"Outstanding Principal Balance" shall have the meaning specified in the
Note Purchase Agreement.
"Purchase Date" shall have the meaning assigned in Section 3.2(b)
hereof.
"Purchase Rate" shall mean 100%.
"Purchase Period" shall mean, with respect to Receivables sold by the
Seller to the Purchaser after the Closing Date, the Collection Period reported
upon in the most recent Servicer Report.
"Purchase Price" shall have the meaning set forth in Section 3.1
hereof.
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"Purchaser" shall mean Xxxx, Inc., a Delaware corporation, and its
successors and assigns hereunder.
"Receivable" shall mean, for purposes of this Agreement, the
indebtedness owed to the Seller by any Obligor under an Account (whether such
Account is in existence as of the Cut-Off Date or thereafter created), whether
constituting an account, chattel paper, instrument, investment property or
general intangible, arising in connection with the sale or lease of merchandise
or the rendering of services, and which in all cases shall include the right to
payment of any Finance Charges and other obligations of such Obligor with
respect thereto.
"Related Security" means with respect to any Receivable, all of the
Seller's rights, title and interest in, to and under:
(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 New York; provided, however, that if by reason of mandatory
provisions of law, the perfection or non-perfection of a security interest in
any property conveyed hereunder is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than the State of New York, "UCC" shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
the provisions hereof relating to such perfection or non-perfection.
"Secured Obligations" shall have the meaning set forth in Section
2.1(d) hereof.
"Termination Date" shall have the meaning specified in Section 4.1.
SECTION 1.2. Other Terms. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles. All terms used in Article
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9 of the Relevant UCC, and not specifically defined herein, are used herein as
defined in such Article 9.
SECTION 1.3. Computation of Time Periods. Unless otherwise stated in
this Agreement, in the computation of a period of time from a specified date to
a later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding."
ARTICLE II
PURCHASE, CONVEYANCE AND SERVICING OF RECEIVABLES
SECTION 2.1. Sale. (a) Upon the terms and subject to the conditions set
forth herein, the Seller hereby sells, assigns, transfers and conveys to the
Purchaser, and the Purchaser hereby purchases from the Seller, on the terms and
subject to the conditions specifically set forth herein, all of the Seller's
right, title and interest, whether now owned or hereafter acquired, in, to and
under the Receivables outstanding on the Closing Date and thereafter owned by
the Seller, through any Termination Date applicable to the Seller (but not
thereafter), together with all Related Security and Collections with respect
thereto and all proceeds of the foregoing. The foregoing sale, assignment,
transfer and conveyance does not constitute an assumption by the Purchaser of
any obligations of the Seller or any other Person to Obligors or to any other
Person in connection with the Receivables or under any Related Security, Account
Agreement or other agreement and instrument relating to the Receivables. With
respect to Receivables sold by the Seller 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 Closing Date. With respect to Receivables sold by the
Seller after the Closing Date, such Receivables shall be deemed to be all the
Receivables created or acquired by the Seller after the close of business on the
Closing Date.
(b) In connection with the foregoing sale, the Seller agrees
to deliver to the Purchaser on or prior to the Closing Date, a
financing statement or statements with respect to the Receivables and
the other property described in Section 2.1(a) sold by the Seller
hereunder meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect and
protect the interests of the Purchaser created hereby under the
Relevant UCC against all creditors of and purchasers from the Seller.
Any expenses of the filing of such financing statements shall be borne
solely by the Seller.
(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 upon the request of the Purchaser, xxxx its master data processing
records and other documents with a legend describing the purchase by
the Purchaser of the Receivables and the subsequent grant of a
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security interest therein to the Agent pursuant to the Note Pledge
Agreement and stating "THE RECEIVABLES IN THESE FILES HAVE BEEN
ACQUIRED BY AND CONVEYED TO XXXX, INC., AND SUCH RECEIVABLES HAVE BEEN
PLEDGED BY XXXX, INC. TO NATIONSBANK, N.A., AS AGENT FOR THE BENEFIT OF
ENTERPRISE FUNDING CORPORATION AND THOSE CERTAIN BANK INVESTORS
PURSUANT TO THE NOTE PURCHASE AND SECURITY AGREEMENT, DATED AS OF JUNE
12, 1998, AS AMENDED FROM TIME TO TIME, AMONG XXXX, INC., NATIONSBANK,
N.A., ENTERPRISE FUNDING CORPORATION AND THE OTHER SIGNATORIES NAMED
THEREIN." 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 by the Seller to the Purchaser
pursuant to this Agreement be construed as a sale of such Receivables
by the Seller to the Purchaser. Further, it is not the intention of the
Seller or the Purchaser that such conveyance be deemed a grant of a
security interest in the Receivables by the Seller to the Purchaser to
secure a debt or other obligation of the Seller. However, in the event,
that, notwithstanding the express intent of the parties, the
Receivables are construed to constitute property of the Seller, then
(i) this Agreement also shall be deemed to be, and hereby is, a
security agreement within the meaning of the Relevant UCC; and (ii) the
conveyance by the Seller provided for in this Agreement shall be deemed
to be, and the Seller hereby grants to the Purchaser, a security
interest in, to and under all of the Seller's right, title and interest
in, to and under the Receivables outstanding on the Closing Date and
thereafter owned by the Seller, together with all Related Security and
Collections with respect thereto and all proceeds of the foregoing, to
secure the rights of the Purchaser set forth in this Agreement or as
may be determined in connection therewith by applicable law
(collectively, the "Secured Obligations"). The Seller and the Purchaser
shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Receivables, such security interest
would be deemed to be a perfected security interest in favor of the
Purchaser under applicable law and will be maintained as such
throughout the term of this Agreement.
SECTION 2.2. Servicing of Receivables. The servicing, administering and
collection of the Receivables shall be conducted by Belk Center, which hereby
agrees to perform, take or cause to be taken all such action as may be necessary
or advisable to collect each Receivable from time to time, all in accordance
with applicable laws, rules and regulations and with the care and diligence
which Belk Center employs in servicing similar receivables, in accordance with
the Credit Guidelines. The Purchaser hereby appoints Belk Center as its agent to
enforce the Purchaser's rights and interests in, to and under the Receivables,
the Related Security and the Collections with respect thereto. Belk Center shall
hold in trust for the Purchaser, in accordance
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with its interests, all Records which evidence or relate to the Receivables or
Related Security, Collections and proceeds with respect thereto. Notwithstanding
anything to the contrary contained herein, from and after the occurrence of a
Termination Event (other than a Termination Event described in Section 7.1(o) or
7.1(p) of the Note Purchase Agreement) or a Servicer Default (each as defined in
the Note Purchase Agreement), the Agent or Enterprise shall have the absolute
and unlimited right to terminate Belk Center's servicing activities described in
this Section 2.2. In consideration of the foregoing, the Purchaser agrees to pay
Belk Center a servicing fee of 2.00% per annum on the aggregate Outstanding
Principal Balance of Receivables sold, payable monthly, as well as an amount
equal to all late fees, returned check or NSF charges and similar charges
received from Obligors with respect to Receivables, for its performance of the
duties and obligations described in this Section 2.2; provided that any such
monthly payment shall be reduced by any amounts payable in such month by
Enterprise or the Bank Investors to Belk Center, in its capacity as Servicer
pursuant to the Note Purchase Agreement.
ARTICLE III
CONSIDERATION AND PAYMENT; RECEIVABLES
SECTION 3.1. Purchase Price. (a) The Purchase Price for the Receivables
and related property conveyed on any date to the Purchaser by the Seller under
this Agreement shall be a dollar amount equal to the product of the aggregate
Outstanding Principal Balance of such Receivables.
SECTION 3.2. Payment of Purchase Price. The Purchase Price for the
Receivables sold on any date shall be paid by payment of cash in immediately
available funds to the Seller.
ARTICLE IV
TERM AND TERMINATION
SECTION 4.1. Term. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue in full force and effect until
the date following the earlier of (i) the date designated by the Purchaser or
the Seller as the termination date at any time following sixty (60) day's
written notice to the other (with a copy thereof to the Agent), (ii) the close
of business on the third Business Day following a conveyance of Receivables by
the Seller to the Purchaser for which the Purchaser does not pay the Purchase
Price in accordance with the provisions hereof, (iii) upon the occurrence of an
Event of Bankruptcy with respect to the Seller, (iv) the date on which either
the Purchaser or the Seller defaults on its obligations hereunder, which default
continues unremedied for more than thirty (30) days after written notice, or (v)
upon the occurrence of an Event of Bankruptcy with respect to the Purchaser (any
such date described above, being a "Termination Date") ; provided, however, that
the termination of this Agreement pursuant to this Section 4.1 shall not
discharge any Person from any obligations incurred prior to such termination,
including, without limitation, any obligations to make any
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payments with respect to the interest of the Purchaser in any Receivable sold
prior to such termination.
SECTION 4.2. Effect of Termination. Following the termination of this
Agreement pursuant to Section 4.1, the Seller shall not sell, and the Purchaser
shall not purchase, any Receivables from any the Seller. No termination or
rejection or failure to assume the executory obligations of this Agreement in
any Event of Bankruptcy with respect to the Seller or the Purchaser shall be
deemed to impair or affect the obligations pertaining to any executed sale or
executed obligations. Without limiting the foregoing, prior to termination, the
failure of the Seller to deliver computer records of Receivables or any reports
regarding the Receivables shall not render such transfer or obligation
executory, nor shall the continued duties of the parties pursuant to Section 5.1
of this Agreement render an executed sale executory.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Amendment. This Agreement and the rights and obligations
of the parties hereunder may not be changed orally, but only by an instrument in
writing signed by the Purchaser and the Seller and consented to in writing by
the Agent. Any reconveyance executed in accordance with the provisions hereof
shall not be considered an amendment to this Agreement.
SECTION 5.2. GOVERNING LAW; Submission to Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b) The parties hereto hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Western
District of North Carolina and of any North Carolina state court
sitting in Mecklenburg County for purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions
contemplated hereby. Each party hereto hereby irrevocably waives, to
the fullest extent it may effectively do so, any objection which it may
now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought
in such a court has been brought in an inconvenient forum. Nothing in
this Section 5.2 shall affect the right of the Purchaser to bring any
other action or proceeding against the Seller or its property in the
courts of other jurisdictions.
SECTION 5.3. Notices. Except as provided below, all communications and
notices provided for hereunder shall be in writing (including telecopy or
electronic facsimile transmission or similar writing) and shall be given to the
other party at its address or telecopy number set forth below or at such other
address or telecopy number as such party may hereafter specify for the purposes
of notice to such party. Each such notice or other communication shall be
effective (i) if
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given by telecopy, when such telecopy is transmitted to the telecopy number
specified in this Section 5.3 and confirmation is received, (ii) if given by
mail three Business Days following such posting, postage prepaid, U.S. certified
or registered, (iii) if given by overnight courier, one Business Day after
deposit thereof with a national overnight courier service, or (iv) if given by
any other means, when received at the address specified in this Section 5.3.
If to the Purchaser:
Xxxx, Inc.
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000, ext: 4273
Telecopy: (000) 000-0000
Attn: Xxxxx X. Xxxxx
with a copy to:
NationsBank, N.A.
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx, Structured Finance
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Seller:
Xxxx Stores of Virginia LLC
c/o Belk Stores Services, Inc.
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000, ext: 4273
Telecopy: (000) 000-0000
Attn: Xxxxx X. Xxxxx
If to the Servicer:
The Xxxx Center, Inc.
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000, extension 7000
Telecopy: (000) 000-0000
Attn: Oakley Xxxxx
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or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
SECTION 5.4. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
SECTION 5.5. Assignment. This Agreement may not be assigned by the
parties hereto, except that the Purchaser may assign its rights hereunder
pursuant to the Note Purchase Agreement to the Agent, for the benefit of
Enterprise and the Bank Investors, and that Enterprise may assign any or all of
its rights to any Liquidity Provider and may grant a security interest in its
rights hereunder to the Collateral Agent. The Purchaser hereby notifies the
Seller that (and the Seller hereby acknowledges that), pursuant to the Note
Purchase Agreement, the Purchaser has assigned its rights hereunder to the
Agent, for the benefit of Enterprise and the Bank Investors.
SECTION 5.6. Further Assurances. The Purchaser and the Seller agree to
do and perform, from time to time, any and all acts and to execute any and all
further instruments required, or reasonably requested by the other party, more
fully to effect the purposes of this Agreement, including, without limitation,
the execution of any financing statements or continuation statements or
equivalent documents relating to the Receivables for filing under the provisions
of the Relevant UCC or other laws of any applicable jurisdiction.
SECTION 5.7. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Purchaser, the Seller or the Agent,
any right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privilege provided by law.
SECTION 5.8. Counterparts. This Agreement may be executed in two or
more counterparts including telecopy transmission thereof (and by different
parties on separate counterparts) , each of which shall be an original, but all
of which together shall constitute one and the same instrument.
SECTION 5.9. Binding Effect. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective successors and
permitted assigns. The Agent, on behalf of Enterprise and the Bank Investors, is
an intended third-party beneficiary of the Seller's obligations hereunder.
SECTION 5.10. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter
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hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 5.11. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
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IN WITNESS WHEREOF, the Purchaser, the Seller and the Servicer each
have caused this Receivables Purchase Agreement to be duly executed by their
respective officers as of the day and year first above written.
XXXX STORES OF VIRGINIA LLC,
as the Seller
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Manager
XXXX, INC., as Purchaser
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Chairman
THE XXXX CENTER, INC.,
as Servicer
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
SIGNATURE PAGE 1
