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RECEIVABLES PURCHASE AGREEMENT
between
PARISIAN SERVICES, INC.
and
PARISIAN, INC.,
each, a Seller
and
PROFFITT'S CREDIT CORPORATION,
as Purchaser
and
MCRAE'S, INC.
as Servicer
Dated as of January 30, 1997
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RECEIVABLES PURCHASE AGREEMENT
This RECEIVABLES PURCHASE AGREEMENT, dated as of January 30,
1997 (as amended, supplemented or otherwise modified and in effect from
time to time, this "Agreement"), between PARISIAN SERVICES, INC., an
Alabama corporation, PARISIAN, INC., an Alabama corporation, each a
seller (in such capacity, a "Seller" and together the "Sellers"),
PROFFITT'S CREDIT CORPORATION, a Nevada corporation, as purchaser (the
"Purchaser"), and MCRAE'S, INC., a Mississippi corporation, as servicer
("McRae's").
W I T N E S S E T H :
WHEREAS, the Purchaser desires to purchase on the Closing Date
from Parisian Services, Inc. and from Parisian, Inc. any and all exist-
ing accounts receivable and to purchase from time to time thereafter
certain accounts receivable generated in the normal course of Parisian,
Inc.'s business pursuant to certain revolving consumer credit card ac-
counts;
WHEREAS, Parisian Services, Inc. desires to sell and assign to
the Purchaser as of the Closing Date all of its existing accounts
receivable and certain related obligations and liabilities and the Pur-
chaser has agreed to acquire from Parisian Services, Inc. all of such
accounts receivable and those certain related obligations and
liabilities as described herein;
WHEREAS, Parisian, Inc. desires to sell and assign to the
Purchaser all of its existing accounts receivable as of the Closing Date
and to sell and assign to the Purchaser from time to time thereafter
certain accounts receivable upon the terms and conditions hereinafter
set forth;
WHEREAS, Parisian Services, Inc. has agreed to merge with and
into Parisian, Inc. and Parisian, Inc. has agreed to assume thereby and
hereby all of the remaining obligations and liabilities of Parisian
Services, Inc., including, without limitation, certain liabilities and
obligations in respect of the accounts receivable transferred hereunder
by Parisian Services, Inc. to the Purchaser;
WHEREAS, the Servicer has agreed to service, upon the terms
and conditions described herein, the accounts receivable sold to the
Purchaser by the Sellers hereunder;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is hereby
agreed by and between the Purchaser and the Sellers 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 Transfer
Agreement, and shall include in the singular number the plural and in
the plural number the singular:
"Advance" shall have the meaning specified in Section 3.2(a).
"Agent" shall mean NationsBank, N.A., as agent on behalf of
Enterprise and the Bank Investors pursuant to the Transfer Agreement.
"Bank Investors" shall have the meaning specified in the
Transfer Agreement.
"Closing Date" shall mean January 30, 1997.
"Eligible Receivable" shall have the meaning specified in the
Transfer 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
Transfer Agreement.
"Hess Specialty Department Store" shall mean Hess Specialty
Department Store, LLC, an Ohio limited liability company (formerly, Hess
Specialty Department Store, Inc., an Ohio corporation), together with
its successors and assigns.
"McRae's" shall mean McRae's, Inc., a Mississippi corporation,
and its successors and assigns.
"Outstanding Principal Balance" shall have the meaning
specified in the Transfer Agreement.
"Promissory Note" shall have the meaning assigned in Section
3.2(a) hereof.
"Purchase Date" shall have the meaning assigned in Section
3.2(b) hereof.
"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 applicable Seller
(expressed as the decimal equivalent of a percentage) as
reasonably determined over the preceding twelve months
(or such other period reasonably determined by the Pur-
chaser);
BDA = an allowance for bad debts, based on, among other
relevant factors, historical rates for the previous
twelve months (or such other period reasonably determined
by the Purchaser);
SF = a Servicer fee equal to 2.00% per annum;
PCF = the Purchaser's cost of funds, as calculated from time to
time, equal to the sum of (i) the product of the Maximum
Buyers' Percentage 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 funds) multiplied
by (y) the sum of one minus the Maximum Buyers' Percent-
age;
OE = the percentage equivalent of the fraction the numerator
of which is the Purchaser's annualized estimate of
projected operating expenses for the next twelve months
and the denominator of which is the estimated Outstanding
Principal Balance of Receivables expected to be sold in
the next twelve months; and
RF = a contingency risk factor based on industry and economic
considerations, as determined by the Purchaser in its
reasonable discretion and as agreed upon between the
Purchaser and the applicable Seller.
"Purchase Period" shall mean, with respect to Receivables sold
by the Sellers to the Purchaser after the Closing Date, the Collection
Period reported upon in the most recent Investor Report delivered after
the Closing Date.
"Purchase Price" shall have the meaning set forth in Section
3.1 hereof.
"Purchaser" shall mean Proffitt's Credit Corporation, a Nevada
corporation, and its successors and assigns.
"Receivable" shall mean, for purposes of this Agreement, the
indebtedness owed to a Seller by an Obligor under an Account (whether
such Account is in existence as of the Closing Date or thereafter creat-
ed), whether constituting an account, chattel paper, instrument or
general intangible, arising in connection with the sale of merchandise
or services, and which, in all cases shall include, the right to payment
of any Finance Charges and other obligations of such Obligor with re-
spect thereto.
"Related Security" shall have the meaning specified in the
Transfer Agreement.
"Relevant UCC" shall mean the Uniform Commercial Code as in
effect in the States of New York and Mississippi, as applicable.
"Secured Obligations" shall have the meaning set forth in
Section 2.1(d) hereof.
"Servicer" shall mean McRae's, and, without limiting the
obligation of McRae's as Servicer hereunder, shall include each Person
to whom McRae's delegates servicing functions pursuant to Section 2.2
hereof.
"Subordinated Note" shall have the meaning specified in
Section 3.2(b).
"Termination Date" shall have the meaning specified in Section
8.1.
"Transfer Agreement" shall mean the Transfer and
Administration Agreement, dated as of January 15, 1997, by and among the
Purchaser, McRae's, Inc., as Servicer, Proffitt's, Inc., as Servicer
Guarantor, Enterprise Funding Corporation and NationsBank N.A., as Agent
and Bank Investor, as such agreement may be amended, modified or supple-
mented from time to time.
SECTION 1.2 Other Terms. All accounting terms not specifi-
cally defined herein shall be construed in accordance with generally
accepted accounting principles. All terms used in Article 9 of the
Relevant UCC, and not specifically defined herein, are used herein as
defined in such Article 9.
SECTION 1.3 Computation of Time Periods. Unless otherwise
stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word "from" means "from
and including" and the words "to" and "until" each means "to but
excluding."
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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 Sellers hereby sell, assign, transfer
and convey to the Purchaser, and the Purchaser hereby purchases from the
Sellers, on the terms and subject to the conditions specifically set
forth herein, all of the Sellers' right, title and interest, whether now
owned or hereafter acquired, in, to and under the Receivables outstand-
ing on the Closing Date and thereafter owned by the Sellers, through any
Termination Date (but not thereafter), together with all Related Secu-
rity and Collections with respect thereto and all proceeds of the fore-
going. The foregoing sale, assignment, transfer and conveyance does not
constitute an assumption by the Purchaser of any obligations of the
Sellers or any other Person to Obligors or to any other Person in con-
nection with the Receivables or under any Related Security, Account
Agreement or other agreement and instrument relating to the Receivables.
With respect to the Closing Date, the Sellers hereby sell all Receiv-
ables that exist as of the close of business on the Parisian Cut-Off
Date. Commencing on the date of effectiveness of the merger of Parisian
Services, Inc. with and into Parisian, Inc., Parisian, Inc. hereby sells
all Receivables created after the close of business on the Parisian Cut-Off
Date.
(b) In connection with the foregoing sale, each Seller agrees
to record and file on or prior to the Closing Date, each at its own ex-
pense, a financing statement or statements with respect to the
Receivables and the other property described in Section 2.1(a) sold by
such 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, to the applicable provisions of Section 9-306 of the Relevant
UCC) against all creditors of and purchasers from the Sellers, 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 Sellers agree that from time to time, at no expense
to the Purchaser, they 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 Sellers will, in order to accurately
reflect this purchase and sale transaction, execute and file such
financing or continuation statements or amendments thereto or assign-
ments thereof (as permitted pursuant hereto) as may be requested by the
Purchaser, and upon the request of the Purchaser, mark all master data
processing records and other documents with a legend describing the
purchase by the Purchaser of the Receivables and the subsequent transfer
thereof to the Agent pursuant to the Transfer Agreement and stating "THE
RECEIVABLES IN THESE FILES HAVE BEEN ACQUIRED BY AND CONVEYED TO
PROFFITT'S CREDIT CORPORATION AND AN INTEREST THEREIN HAS BEEN ASSIGNED
TO NATIONSBANK, N.A., AS AGENT, FOR THE BENEFIT OF ENTERPRISE FUNDING
CORPORATION AND THOSE CERTAIN BANK INVESTORS PURSUANT TO THE TRANSFER
AND ADMINISTRATION AGREEMENT DATED AS OF JANUARY 15, 1997, AS AMENDED
FROM TIME TO TIME, AMONG PROFFITT'S CREDIT CORPORATION, NATIONSBANK,
N.A., ENTERPRISE FUNDING CORPORATION AND THE OTHER SIGNATORIES NAMED
THEREIN." The Sellers 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 per-
mitted to sign and file continuation statements and amendments thereto
and assignments thereof without the Sellers' signature. Carbon, photo-
graphic 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 Sellers and the Purchaser
that the conveyance of the Receivables by the Sellers to the Purchaser
pursuant to this Agreement be construed as a sale of such Receivables by
the Sellers to the Purchaser. Further, it is not the intention of the
Sellers and the Purchaser that such conveyance be deemed a grant of a
security interest in the Receivables by the Sellers to the Purchaser to
secure a debt or other obligation of the Sellers. However, in the event
that, notwithstanding the express intent of the parties, the Receivables
are construed to constitute property of the Sellers, then (i) this
Agreement also shall be deemed to be, and hereby is, a security agree-
ment within the meaning of the Relevant UCC; and (ii) the conveyance by
the Sellers provided for in this Agreement shall be deemed to be, and
the Sellers hereby grant to the Purchaser, a security interest in, to
and under all of the Sellers' right, title and interest in, to and under
the Receivables outstanding on the Closing Date and thereafter owned by
a 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 Obli-
gations"). The Sellers and the Purchaser shall, to the extent consis-
tent 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, admin-
istering and collection of the Receivables shall be conducted by
McRae's, 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 McRae's employs in
servicing similar receivables for its own account, in accordance with
the Credit Guidelines. With the consent of the Agent and the Purchaser,
McRae's may delegate certain servicing functions to Parisian, Inc.,
however, no such delegation shall relieve McRae's 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 and the Collections with respect
thereto. The Servicer shall hold in trust for the Purchaser, in accor-
dance 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, a Parisian
Termination Event or a Servicer Default (each as defined in the Transfer
Agreement), the Agent or Enterprise, shall have the absolute and unlim-
ited right to terminate McRae's servicing activities described in this
Section 2.2 (including therein the activities of any Person to whom
McRae's has delegated servicing functions pursuant to this Section 2.2).
In consideration of the foregoing, the Purchaser agrees to pay the
Servicer a servicing fee of 2.00% per annum on the aggregate Outstanding
Principal Balance of Receivables sold, payable monthly, for its perfor-
mance 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 the
Servicer, in its capacity as Servicer pursuant to the Transfer Agree-
ment.
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ARTICLE III
CONSIDERATION AND PAYMENT; RECEIVABLES
SECTION 3.1. Purchase Price. The Purchase Price for the
Receivables and related property conveyed on the Closing Date to the
Purchaser (i) by Parisian Services, Inc., as Seller, shall be a dollar
amount equal to $135,583,785 representing the product of (x) the aggre-
gate Outstanding Principal Balance of the Receivables conveyed to the
Purchaser by Parisian Services, Inc. as of the Parisian Cut-Off Date, as
reflected on the Cycle Certificate delivered on the Closing Date and (y)
98%, and (ii) by Parisian, Inc., as Seller, shall be a dollar amount
equal to the product of (x) the aggregate Outstanding Principal Balance
of the Receivables conveyed to the Purchaser by Parisian, Inc. as of the
Parisian Cut-Off Date, as reflected on the Cycle Certificate delivered
on the Closing Date and (y) the Purchase Rate.
The Purchase Price for the Receivables and related property
conveyed on any date after the Closing 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 Investor Report and (ii) the Purchase Rate
on such date.
SECTION 3.2. Payment of Purchase Price. (a) The Purchase
Price for the Receivables sold by Parisian Services, Inc. on the Closing
Date shall be paid (i) by a payment of $110,000,000 in immediately
available funds, (ii) by the delivery of 242 shares of the common stock
of the Purchaser representing 49.19% of the issued and outstanding
common stock of Proffitt's Credit Corporation having a fair market value
reasonably estimated to be equal to not less than $9,697,211, it being
expressly understood that such shares are to be held, following the
merger of Parisian Services, Inc. with and into Parisian, Inc., by
Parisian, Inc. and (iii) by the assumption by the Purchaser of all of
Parisian Services, Inc.'s current and outstanding obligations under
those certain promissory notes of Parisian Services, Inc., each dated
July 31, 1995 and payable to the order of (x) Parisian, Inc., (y)
Parisian of Tennessee, Inc. and (z) Hess Specialty Department Store,
Limited Liability Company (the successor in interest to Hess Specialty
Department Store, Inc.), (collectively, the "Promissory Note") which
such Promissory Note has an aggregate outstanding principal amount due
equal to not more than $15,886,574 as of the Closing Date.
(b) The Purchase Price for the Receivables sold by Parisian,
Inc. as the Seller on any date after the date hereof (each, a "Purchase
Date") shall be paid either (i) in cash or (ii) if Purchaser does not
have sufficient cash to pay the Purchase Price, by means of (A) an Ad-
vance under the Subordinated Note or (B) with the consent of the Seller,
capital contributed by the Seller to the Purchaser in the form of a con-
tribution of the additional Receivables or (iii) with the consent of the
Seller, 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 and the Seller is not willing to consent to the payment of
such insufficiency by means of a capital contribution, such insufficien-
cy shall be evidenced by the making of an Advance on such Purchase Date
in an original principal amount equal to such cash shortfall owed to the
Seller, provided, however that (i) at all times prior to December 31,
1997, (x) the amount of Advances made under the Subordinated Note shall
not cause the Purchaser's Net Worth to be less than 8.0% of the highest
aggregate Outstanding Principal Balance of all Eligible Receivables
shown on any Cycle Certificate delivered by the Servicer under the
Transfer Agreement during the preceding twelve months and (y) the
Sellers and the Purchaser agree to act in good faith to minimize the
amount of Advances made under the Subordinated Note so as to cause the
Purchaser's Net Worth to be not less than 10% of the highest aggregate
Outstanding Principal Balance of all Eligible Receivables shown on any
Cycle Certificate delivered by the Servicer under the Transfer Agreement
during the preceding twelve months, and (ii) from and after December 31,
1997, no Advance shall be made if immediately thereafter the Net Worth
of the Purchaser would be less than 10% of the highest aggregate
Outstanding Principal Balance of all Eligible Receivables shown on any
Cycle Certificate delivered by the Servicer under the Transfer Agreement
during the preceding twelve months.
The parties hereto agree that (a) in connection with the
assumption by the Purchaser of the obligations of Parisian Services,
Inc. under the Promissory Note, (b) in connection with the merger of
Parisian Services, Inc. with and into Parisian, Inc., and (c) in
recognition of the succession to and assumption by Parisian, Inc. of all
rights and obligations of each of Parisian of Tennessee, Inc. and Hess
Specialty Department Store pursuant to the merger of each such entity
with and into Parisian, Inc., the Promissory Note and the obligations
thereunder is hereby amended and restated and, together with all future
Advances made by Parisian, Inc. as Seller 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,
delivered and payable to Parisian, Inc., as Seller, in a principal
amount equal to $100,000,000 (the "Subordinated Note"). Parisian, Inc.
is hereby authorized by the Purchaser to endorse on the schedule at-
tached to the Subordinated Note (or a continuation of such schedule
attached thereto and made a part thereof) an appropriate notation
evidencing the date and amount of each Advance, as well as the date and
amount of each payment with respect thereto; provided, however, the
initial aggregate outstanding amount endorsed as having been advanced
under the Subordinated Note shall equal the aggregate outstanding amount
of the obligations owing under the Promissory Note as of the Closing
Date; and provided, further, that the failure of any Person to make such
notation shall not affect any obligations of the Purchaser thereunder.
Any such notation shall be conclusive and binding as to the date and
amount of Advance, or payment of principal or interest thereon, absent
manifest error.
(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 based on the number of days elapsed in a year of 360
days.
(iii) Sole and Exclusive Remedy/Subordination. The
Purchaser shall be obligated to repay Advances to Parisian, Inc. only to
the extent of 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 Parisian, Inc. under the Subordinated Note,
Parisian, Inc. shall not have any claim against the Purchaser for such
amounts and no further or additional recourse shall be available against
Purchaser. The Subordinated Note shall be fully subordinated to any
rights of Enterprise, the Bank Investors and their permitted assigns
pursuant to the Transfer Agreement, and shall not evidence any rights in
the Receivables.
(iv) Offsets, etc. The Purchaser may offset any amount
due and owing by Parisian, Inc. against any amount due and owing by Pur-
chaser to Parisian, Inc. under the terms of the Subordinated Note.
SECTION 3.3. Monthly Report. On each Determination Date,
Parisian, Inc. shall deliver to the Purchaser a report covering the
preceding Collection Period, substantially in the form of the Investor
Report attached as Exhibit E to the Transfer Agreement, showing (i) the
aggregate Purchase Price of Receivables acquired or generated by
Parisian, Inc. in the preceding Collection Period and (ii) the aggregate
Outstanding Principal Balance of such Receivables that are Eligible
Receivables as of the last day of such preceding Collection Period.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Sellers Representations and Warranties. (a)
Representations and Warranties of Parisian Services, Inc. Parisian
Services, Inc., as Seller hereunder, represents and warrants to the Pur-
chaser as of the Closing Date that:
(i) Corporate Existence and Power. Parisian Services, Inc.
is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and
has all corporate power and all material governmental licenses,
authorizations, consents and approvals required to carry on its
business in each jurisdiction in which its business is now con-
ducted. Parisian Services, Inc. is duly qualified to do business
in, and is in good standing in, every other jurisdiction in which
the nature of its business requires it to be so qualified, except
where the failure to be so qualified or in good standing would not
have a Material Adverse Effect.
(ii) Corporate and Governmental Authorization; Contravention.
The execution, delivery and performance by Parisian Services, Inc.
of this Agreement are within Parisian Services, Inc.'s corporate
powers, have been duly authorized by all necessary corporate
action, require no action by or in respect of, or filing with, any
Official Body or official thereof (except for the filing of UCC
financing statements as required by this Agreement), and do not
contravene, or constitute a default under, any provision of
applicable law, rule or regulation or of the Certificate of
Incorporation or Bylaws of Parisian Services, Inc. or of any agree-
ment, judgment, injunction, order, writ, decree or other instrument
binding upon the Seller or result in the creation or imposition of
any Adverse Claim on the assets of Parisian Services, Inc. (except
those created by this Agreement).
(iii) Binding Effect. This Agreement will constitute the
legal, valid and binding obligation of Parisian Services, Inc. en-
forceable against Parisian Services, Inc. in accordance with its
terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws affecting the rights of creditors generally.
(iv) Perfection. Immediately preceding the sale of the Re-
ceivables and related property pursuant to this Agreement, Parisian
Services, Inc. was the owner of all of the Receivables purported to
be transferred by Parisian Services, Inc. to the Purchaser
hereunder, free and clear of all Adverse Claims. On or prior to
the date of 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 purported to be transferred by Parisian Services, Inc.
to the Purchaser hereunder against all creditors of and purchasers
from Parisian Services, Inc. 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.
(v) Accuracy of Information. All information heretofore
furnished by Parisian Services, Inc. to the Purchaser, the Agent,
Enterprise and any Bank Investor for purposes of or in connection
with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by Parisian Services, Inc.
to the Purchaser, the Agent, Enterprise and any Bank Investor will
be, true and accurate in every material respect, on the date such
information is stated or certified.
(vi) Tax Status. Parisian Services, Inc. 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.
(vii) Action, Suits. Except as set forth in this Agreement,
there are no actions, suits or proceedings pending, or to the
knowledge of Parisian Services, Inc., threatened, against or af-
fecting Parisian Services, Inc. or any Affiliate of Parisian
Services, Inc. or their respective properties, in or before any
court, arbitrator or other body, which may, individually or in the
aggregate, have a Material Adverse Effect.
(viii) Place of Business. The principal place of business
and chief executive office of Parisian Services, Inc. is located at
750 Lakeshore Drive, Birmingham, Alabama 35211, and the offices
where Parisian Services, Inc. keeps all its Records, are located at
the address(es) described on Exhibit C hereto or such other loca-
tions 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.
(ix) Good Title. Upon the sale of the Receivables and relat-
ed property to the Purchaser pursuant to this Agreement, the
Purchaser shall acquire a valid and perfected first priority owner-
ship interest in each Receivable (and in the Related Security,
Collections and Proceeds with respect thereto) purported to be
transferred by Parisian Services, Inc. that exists on the date of
this Agreement and is owned by Parisian Services, Inc., as Seller,
and in the Related Security, Collections and Proceeds, in each case
free and clear of any Adverse Claim.
(x) Tradenames, Etc. As of the date hereof: (i) the Seller
has, within the last five (5) years, operated only under the
tradenames identified in Exhibit D attached hereto and (ii) 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 Title 11, United States Code (Bankruptcy),
except as disclosed in Exhibit D attached hereto.
(xi) Nature of Receivables. Each Receivable (x) represented
by the Seller to be an Eligible Receivable, or (y) included in the
calculation of the Net Receivables Balance in fact satisfies at
such time the definition of "Eligible Receivable" set forth in the
Transfer Agreement and is an "eligible asset" as defined in Rule
3a-7 under the Investment Company Act of 1940, as amended.
(xii) Amount of Receivables. As of the Parisian Cut-Off
Date, the aggregate Outstanding Principal Balance of the Receiv-
ables in existence and purported to be transferred by Parisian Ser-
vices, Inc. to the Purchaser hereunder was at least $138,350,800.
(xiii) Not an Investment Company. Parisian Services, Inc. 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.
(xiv) ERISA. Each of Parisian Services, Inc. and 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.
(xv) Lock-Box Accounts. The names and addresses of all the
Lock-Box Banks, together with the account numbers of the Lock-Box
Accounts at such Lock-Box Banks, are specified in Exhibit C to the
Transfer Agreement (or at such other Lock-Box Banks and/or with
such other Lock-Box Accounts as have been notified to the Purchaser
and the Agent and for which Lock-Box Agreements have been executed
in accordance with Section 2.8(b) of the Transfer Agreement and
delivered to the Servicer). All Obligors have been instructed to
make payment to a Lock-Box Account and only Collections are
deposited into the Lock-Box Accounts.
(xvi) Bulk Sales. No transaction contemplated by this Agree-
ment requires compliance with any bulk sales act or similar law.
(xvii) Preference; Voidability. Parisian Services, Inc.
warrants that the conveyance of the applicable Receivables and
Collections and Related Security from Parisian Services, Inc. to
the Purchaser shall not have been made for or on account of an
antecedent debt owed by Parisian Services, Inc. to the Purchaser
and no such transfer is or may be voidable under any Section of the
Bankruptcy Reform Act of 1978 (11 U.S.C. Section 101 et seq.), as
amended.
(b) Parisian, Inc. Representations and Warranties. Parisian,
Inc., as Seller hereunder, represents and warrants to the Purchaser as
of the Closing Date and shall be deemed to represent and warrant as of
the date of the creation or any sale of any interest in Receivables to
the Purchaser pursuant to this Agreement that:
(i) Corporate Existence and Power. Such Seller is a corpo-
ration duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation and has all corporate
power and all material governmental licenses, authorizations,
consents and approvals required to carry on its business in each
jurisdiction in which its business is now conducted. Such Seller
is duly qualified to do business in, and is in good standing in,
every other jurisdiction in which the nature of its business
requires it to be so qualified, except where the failure to be so
qualified or in good standing would not have a Material Adverse Ef-
fect.
(ii) Corporate and Governmental Authorization; Contravention.
The execution, delivery and performance by such Seller of this
Agreement are within such Seller's corporate powers, have been duly
authorized by all necessary corporate action, require no action by
or in respect of, or filing with, any Official Body or official
thereof (except for the filing of UCC financing statements as re-
quired by this Agreement), and do not contravene, or constitute a
default under, any provision of applicable law, rule or regulation
or of the Certificate of Incorporation or Bylaws of such Seller or
of any agreement, judgment, injunction, order, writ, decree or
other instrument binding upon such Seller or result in the creation
or imposition of any Adverse Claim on the assets of such Seller or
any of its Subsidiaries (except those created by this Agreement).
(iii) Binding Effect. This Agreement will constitute the
legal, valid and binding obligation of such Seller, enforceable
against such Seller in accordance with its terms, subject to appli-
cable bankruptcy, insolvency, moratorium or other similar laws
affecting the rights of creditors generally.
(iv) Perfection. On or prior to the date of each sale of
Receivables 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 against all creditors of and purchasers from
such 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.
(v) Accuracy of Information. All information heretofore
furnished by such Seller to the Purchaser, the Agent, Enterprise
and any Bank Investor for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such
information hereafter furnished by such Seller to the Purchaser,
the Agent, Enterprise and any Bank Investor will be, true and accu-
rate in every material respect, on the date such information is
stated or certified.
(vi) Tax Status. Such Seller has filed all material tax re-
turns (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.
(vii) Action, Suits. Except as set forth in this Agreement,
there are no actions, suits or proceedings pending, or to the
knowledge of such Seller threatened, against or affecting such
Seller or any Affiliate of such Seller or their respective proper-
ties, in or before any court, arbitrator or other body, which may,
individually or in the aggregate, have a Material Adverse Effect.
(viii) Place of Business. The principal place of business
and chief executive office of such Seller is located at 3455
Highway 80 West, Jackson, Mississippi 39209, and the offices where
such Seller keeps all its Records, 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.
(ix) Good Title. Upon the sale of the Receivables and relat-
ed property to the Purchaser pursuant to this Agreement, the
Purchaser shall acquire a valid and perfected first priority owner-
ship interest in each Receivable (and in the Related Security, Col-
lections and Proceeds with respect thereto) that exists on the date
of this Agreement and in each Receivable thereafter owned by such
Seller and in the Related Security, Collections and Proceeds with
respect thereto until the Termination Date in each case free and
clear of any Adverse Claim.
(x) Tradenames, Etc. As of the date hereof: (i) Parisian,
Inc.'s chief executive office is located at the address for notices
set forth in Section 9.3; (ii) Parisian, Inc. has only the subsid-
iaries and divisions listed on Exhibit D attached hereto; and (iii)
Parisian, Inc. has, within the last five (5) years, operated only
under the tradenames identified in Exhibit D attached 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 Title 11, United States Code (Bank-
ruptcy), except as disclosed in Exhibit D attached hereto.
(xi) Nature of Receivables. Each Receivable (x) represented
by such Seller to be an Eligible Receivable, or (y) included in the
calculation of the Net Receivables Balance in fact satisfies at
such time the definition of "Eligible Receivable" set forth in the
Transfer Agreement and is an "eligible asset" as defined in Rule
3a-7 under the Investment Company Act of 1940, as amended.
(xii) [Reserved]
(xiii) Credit Guidelines. Since January 16, 1997, there have
been no material changes in the Parisian Credit Guidelines other
than as permitted hereunder and under the Transfer Agreement.
Since such date, no material adverse change has occurred in the
overall rate of collection of the Receivables.
(xiv) Collections and Servicing. Since January 16, 1997,
there has been no material adverse change in the ability of
Parisian, Inc. to service and collect the Receivables.
(xv) Not an Investment Company. Such 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.
(xvi) ERISA. Each of Parisian, Inc. and 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.
(xvii) Lock-Box Accounts. The names and addresses of all the
Lock-Box Banks, together with the account numbers of the Lock-Box
Accounts at such Lock-Box Banks, are specified in Exhibit C to the
Transfer Agreement (or at such other Lock-Box Banks and/or with
such other Lock-Box Accounts as have been notified to the Purchaser
and the Agent and for which Lock-Box Agreements have been executed
in accordance with Section 2.8(b) of the Transfer Agreement and
delivered to such Servicer). All Obligors have been instructed to
make payment to a Lock-Box Account and only Collections are
deposited into the Lock-Box Accounts.
(xviii) Bulk Sales. No transaction contemplated by this
Agreement requires compliance with any bulk sales act or similar
law.
(xix) Preference; Voidability. Parisian, Inc. warrants that
the conveyance of the applicable Receivables and Collections and
Related Security from Parisian Services, Inc. to the Purchaser
shall not have been made for or on account of an antecedent debt
owed by Parisian, Inc. to the Purchaser and no such transfer is or
may be voidable under any Section of the Bankruptcy Reform Act of
1978 (11 U.S.C. Section 101 et seq.), as amended.
SECTION 4.2. Reaffirmation of Representations and Warranties
by Parisian, Inc.; Notice of Breach. On each sale date, Parisian, Inc.,
by accepting the proceeds of such sale, shall be deemed to have certi-
fied that (i) all representations and warranties described in Section
4.1(a) regarding any Receivables are true and correct on and as of such
day as though made on and as of such day and (ii) all representations
and warranties described in Section 4.1(b) are true and correct on and
as of such day as though made on and as of such day. The representa-
tions and warranties set forth in Section 4.1 shall survive the convey-
ance of the Receivables to the Purchaser, and termination of the rights
and obligations of the Purchaser and the Sellers under this Agreement.
Upon discovery by the Purchaser or either of the Sellers of a breach of
any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the others
within three Business Days of such discovery.
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ARTICLE V
COVENANTS OF THE SELLER
SECTION 5.1. Covenants of Each Seller. Each Seller hereby
jointly and severally covenants and agrees with the Purchaser that, for
so long as this Agreement is 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 written-off as uncollectible, and all amounts
owed by such Seller pursuant to this Agreement have been paid in full,
unless the Purchaser otherwise consents in writing:
(a) Conduct of Business. The Seller will, and will cause
each of its Subsidiaries to, carry on and conduct its business in sub-
stantially the same manner and in substantially the same fields of
enterprise as it is presently conducted and do all things necessary to
remain duly incorporated, validly existing and in good standing as a
domestic corporation in its jurisdiction of incorporation and will
maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
(b) Compliance with Laws. The Seller will, and will cause
each of its Subsidiaries to, 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 to the Purchaser from time to time such information
with respect to the Receivables as the Purchaser may reasonably request,
including, without limitation, listings identifying the Obligor and the
Outstanding Principal Balance for each Receivable. The Seller will at
any time and from time to time during regular business hours permit the
Purchaser, or its agents or representatives, (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 perfor-
mance hereunder with any of the officers, directors, employees or inde-
pendent public accountants of the Seller having knowledge of such mat-
ters.
(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, consistently
applied, and will maintain and implement administrative and operating
procedures (including, without limitation, an ability to 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 collec-
tion 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 Agent notice of any material change in
the administrative and operating procedures of the Seller referred to in
the previous sentence.
(e) Performance and Compliance with Receivables and Accounts.
The Seller at its expense will timely and fully perform and comply with
all material provisions, covenants and other promises required to be ob-
served by it under the Accounts related to the Receivables.
(f) Credit and Collection Policies. The Seller will comply
in all material respects with the Parisian Credit Guidelines in regard
to each Receivable and the related Account.
(g) Collections. The Seller shall instruct all Obligors to
cause all Collections to be deposited directly to a Lock-Box Account.
(h) Collections Received. The Seller shall hold in trust,
and deposit, immediately, but in any event not later than the close of
business on the second Business Day following its receipt thereof, to a
Lock-Box Account all Collections received from time to time by the
Seller.
(i) 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.
(j) ERISA. The Seller shall promptly give the Purchaser
written notice upon becoming aware that the Seller or any of its
Subsidiaries is not in compliance in all material respects with ERISA or
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 Agent and the Purchaser shall
otherwise consent in writing, each Seller jointly and severally agrees
with and covenants to the Purchaser as follows:
(a) No Sales, Liens, Etc. Except as otherwise provided
herein, the Seller will not sell, assign (by operation of law or other-
wise) or otherwise dispose of, or create or suffer to exist any Adverse
Claim upon (or the filing of any financing statement) or with respect to
(x) any of the Receivables, the Related Security or Collections, (y) any
goods (other than inventory), the sale of which may give rise to any Re-
ceivable, Related Security or Collections (subject, in each case with
respect to Related Security constituting returned inventory, to the
applicable provisions of Section 9-306 of the Relevant UCC) or (z) upon
or with respect to any account which concentrates in a Lock-Box Bank
(including any Lock-Box Account) to which any Collections of any Receiv-
able are sent, or, in each case, assign any right to receive income in
respect thereof. The Seller shall, and will cause each of its Subsid-
iaries to, specifically exclude from the property subject to any Adverse
Claim granted on inventory any and all accounts receivable generated by
sales of such inventory and the proceeds thereof and shall provide, upon
the Purchaser's request, evidence satisfactory to the Purchaser that any
such Adverse Claim (and each related UCC financing statement or other
related filing) expressly excludes any such accounts receivable. The
Seller will provide the Purchaser and the Agent with a copy of any
inventory financing agreement at least three Business Days prior to the
effectiveness thereof.
(b) No Extension or Amendment of Receivables. The Seller
will not extend, amend or otherwise modify the terms of any Receivable,
or amend, modify or waive any term or condition of any Account related
thereto, except as provided in Sections 5.2 and 6.2 of the Transfer
Agreement.
(c) No Change in Business or Parisian Credit Guidelines.
Except as provided in the Transfer Agreement, the Seller will not make
any change in the character of its business or in the Parisian Credit
Guidelines, which change might, in either case, impair the
collectability of any substantial portion of the Receivables or other-
wise result in a Material Adverse Effect.
(d) Change in Payment Instructions to Obligors. The Seller
will not add or terminate, or make any change to, any Lock-Box Account,
except in accordance with the Transfer Agreement.
(e) Deposits to Lock-Box Accounts. The Seller will not
deposit or otherwise credit, or cause or permit to be so deposited or
credited, to any Lock-Box Account, cash or cash proceeds other than
Collections of Receivables.
(f) 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) days prior to the effective date of any such
change the Seller delivers to the Purchaser and the Agent (i) such docu-
ments, 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 interest in the Receivables and
(ii) new or revised Lock-Box Agreements which reflect such change and
enable the Agent to exercise its rights under Section 2.8 of the Trans-
fer Agreement; provided, however, that Parisian Services, Inc. may merge
with and into Parisian, Inc. without further action on the Sellers' part
except for the execution and delivery to the Agent of all necessary
termination agreements, quit claims and releases or the filing of any
necessary financing statements reflecting the assignments of Parisian
Services, Inc's interest in Receivables to Parisian, Inc., the Purchaser
or to the Agent, as appropriate.
(g) Separate Business. Each of the Sellers shall not: (i)
fail to maintain separate books, financial statements, accounting
records and other corporate documents from those of the Purchaser, (ii)
commingle any of its assets or the assets of any of its Affiliates with
those of the Purchaser, (iii) pay from its own assets any obligation or
indebtedness of any kind incurred by the Purchaser, (iv) directly, or
through any of its Affiliates, borrow funds or accept credit or
guaranties from the Purchaser except pursuant to this Agreement in con-
nection with the purchase of the Receivables.
SECTION 5.3. Indemnification. Parisian, Inc. 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) 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 a
Seller of its representations, warranties and covenants contained
herein, or any information certified in any schedule or certificate
delivered by a Seller hereunder, being untrue in any material respect at
any time. The obligations of Parisian, Inc. under this Section 5.3
shall be considered to have been relied upon by the Purchaser,
Enterprise and the Agent and shall survive the execution, delivery, per-
formance and termination of this Agreement, regardless of any investi-
gation made by the Purchaser, Enterprise or the Agent or on behalf of
any of them.
ARTICLE VI
REPURCHASE OBLIGATION
SECTION 6.1. Mandatory Repurchase.
(a) Breach of Warranty. If on any day any Receivable, which
has been sold by the Sellers hereunder and which has been reported by
the Sellers as an Eligible Receivable, shall fail to meet the conditions
set forth in the definition of "Eligible Receivable" (except to the
extent such conditions expressly relate to an earlier date) or for which
any representation or warranty made herein in respect of such Receivable
shall no longer be true, Parisian, Inc. 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; provided that, prior to the
Termination Date, such amount may be paid by a reduction in the Purchase
Price paid to Parisian, Inc. as Seller on the next occurring Purchase
Date, unless Parisian, Inc. is required to make a payment in respect of
such breach pursuant to the Transfer Agreement.
(b) Reconveyance Under Certain Circumstances. Parisian, Inc.
agrees that, with respect to any Receivable sold hereunder, in the event
of a breach of any of the representations and warranties set forth in
Sections 4.1(a)(v) or 4.1(b)(v), 4.1(a)(vii) or 4.1(b)(vii),
4.1(a)(viii) or 4.1(b)(viii), 4.1(b)(x), 4.1(a)(xii), 4.1(a)(xiii) or
4.1(b)(xv), 4.1(a)(xiv) or 4.1(b)(xvi) or 4.1(a)(xv) or 4.1(b)(xvii),
the Seller shall accept the reconveyance of such Receivable upon receipt
by the Seller of notice given in writing by the Purchaser and the
Seller's failure to cure such breach within thirty (30) days (or, in the
case of representations and warranties found in Sections 4.1(a)(iv) or
4.1(b)(iv) or 4.1(a)(ix) or 4.1(b)(ix), within three (3) days) of such
notice. In the event of a reconveyance under this Section 6.1(b),
Parisian, Inc. shall pay to the Purchaser in immediately available funds
on such 30th day (or third day, if applicable) an amount equal to the
Outstanding Principal Balance of any such Receivable; provided that,
prior to the Termination Date, such amount may be paid by a reduction in
the Purchase Price paid to Parisian, Inc. as Seller on the next
occurring Purchase Date, unless the Purchaser is required to make a
payment in respect of such breach pursuant to the Transfer Agreement.
SECTION 2. Dilutions, Etc. Parisian, Inc. agrees that if on
any day the Outstanding Principal Balance of a Receivable sold by a
Seller hereunder is either (x) reduced as a result of any defective, re-
jected or returned merchandise or services, any discount, credit,
rebate, dispute, warranty claim, repossessed or returned goods,
chargeback, allowance or any billing adjustment, or (y) reduced or can-
celed as a result of a setoff or offset in respect of any claim by any
Person (whether such claim arises out of the same or a related transac-
tion or an unrelated transaction) or (z) any other downward adjustments
to the balance of such Receivable without receiving Collections therefor
and prior to such Receivable becoming a Defaulted Receivable, then Pari-
sian, Inc. as Seller shall be deemed to have received on such day a col-
lection 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 reduc-
tion in the Purchase Price paid to Parisian, Inc. on the next occurring
Purchase Date, unless the Purchaser is required to make a payment in
respect of such breach pursuant to the Transfer Agreement.
SECTION 3 No Recourse. Except as otherwise provided in this
Article VI, the purchase and sale of the Receivables under this
Agreement shall be without recourse to the Sellers.
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ARTICLE VII
CONDITIONS PRECEDENT
SECTION 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 Sellers con-
tained in this Agreement shall be true and correct on the Closing Date
and all representations and warranties of Parisian, Inc. contained
herein shall be true and correct on each Purchase Date thereafter with
the same effect as though such representations and warranties had been
made on such 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 existing on the Closing
Date, or the Purchase Date, in the case of any Receivables created after
the Closing Date;
(c) The Sellers shall have substantially performed all other
obligations required to be performed by the provisions of this Agree-
ment;
(d) The Sellers shall have filed or caused to be filed the
financing statement(s) required to be filed pursuant to Section 2.1(b);
(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;
(f) On the Closing Date, the Sellers shall deliver to the
Purchaser and the Agent a Cycle Certificate as of the Parisian Cut-Off
Date;
(g) On or before the Closing Date, the Sellers shall have
delivered to the Purchaser and the Agent evidence of termination of that
certain Receivables Purchase Agreement, dated as of March 31, 1993
between Parisian Services, Inc., as seller, Sheffield Receivables
Corporation, as purchaser, The Bank of Nova Scotia, as the agent and
Barclays Bank PLC, New York Branch, as the administrative agent and
managing agent thereunder, as such agreement has been amended,
supplemented and modified to the Effective Date (together with all
related documents and agreements, the "Sheffield Facility"), such
agreements, documents and instruments as are necessary and appropriate
to reflect the termination of the Sheffield Facility, including without
limitation, the termination of the Second Amended and Restated Financing
and Collection Agency Agreement, and the release of all liens and
security interests of all secured parties holding an interest in
Receivables arising under or related thereto. The foregoing agreements,
documents, and instruments shall include, but not be limited to, each
originally executed note or instrument executed on behalf of a Seller
and payable to a transferor of accounts receivables purporting to
represent an outstanding obligation of such Seller arising in connection
with the acquisition of any Receivable, a payoff letter setting forth
the pay-off amount, a release agreement and UCC-3 termination state-
ments, each in form and substance reasonably satisfactory to the Agent;
and
(h) On or before the Closing Date, Parisian, Inc. shall have
delivered to the Purchaser and the Agent satisfactory evidence of having
executed and delivered for filing with the offices of the applicable
Secretaries of State of, that certain merger agreement pursuant to which
Parisian of Tennessee, Inc. and Hess Specialty Department Store, merged
with and into Parisian, Inc., with Parisian, Inc. surviving the merger
and assuming thereby all of the rights, obligations and liabilities of
each constituent entity to such merger.
(i) On or before the Closing Date, Parisian, Inc. shall have
delivered to the Purchaser and the Agent evidence satisfactory to the
Agent and its counsel that (i) no further action is required or shall be
necessary to satisfy this or any other conditions precedent to this Re-
ceivables Purchase Agreement and (ii) but for the filing with the
applicable offices of the Secretaries of State of the Articles of Merger
and the Plan of Merger of Parisian Services, Inc. with and into Pari-
sian, Inc., whereby Parisian, Inc. will succeed to all of the rights and
obligations of Parisian Services, Inc., no further action is required or
shall be necessary in order for the merger of Parisian Services, Inc.
with and into Parisian, Inc. to be effective.
ARTICLE VIII
TERM AND TERMINATION
SECTION 8.1. 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 desig-
nated by the Purchaser or Parisian, Inc. as 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 date on which the Agent
declares a Termination Date pursuant to Section 7.2 of the Transfer
Agreement, (iii) the day on which a Reinvestment Termination Date shall
occur under the Transfer Agreement unless the Transferred Interest shall
have been assigned (or concurrently is so assigned) to the Bank In-
vestors under Section 10.7 of the Transfer Agreement, (iv) upon the
occurrence of an Event of Bankruptcy with respect to either the Pur-
chaser or either of the Sellers, (v) 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, (vi) the occurrence of a Parisian Termination
Event, (vii) the failure to complete and consummate the merger of
Parisian Services, Inc. with and into Parisian, Inc. on or before the
third Business Day following the Closing Date, or (viii) the date on
which either the Purchaser or Parisian, Inc., as a Seller, becomes
unable for any reason to purchase or re-purchase 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 "Termina-
tion 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 termina-
tion.
SECTION 8.2. Effect of Termination. Following the
termination of this Agreement pursuant to Section 8.1, the Sellers 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 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, including,
without limitation, pre-termination breaches of representations and
warranties by the Sellers or the Purchaser. Without limiting the fore-
going, prior to termination, the failure of the Sellers 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 Article V or Section 9.1 of
this Agreement render an executed sale executory.
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ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1. 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 each Seller then
in existence and consented to in writing by the Agent. Any reconveyance
executed in accordance with the provisions hereof shall not be con-
sidered amendments to this Agreement.
SECTION 9.2. GOVERNING LAW; Submission to Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF MISSISSIPPI.
(b) The parties hereto hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Southern
District of New York and of any New York state court sitting in The City
of New York 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 9.2
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 9.3. Notices. Except as provided below, all
communications and notices provided for hereunder shall be in writing
(including telecopy or electronic facsimile transmission or similar
writing) and shall be given to the other party at its address or
telecopy number set forth below or at such other address or telecopy
number as such party may hereafter specify for the purposes of notice to
such party. Each such notice or other communication shall be effective
(i) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified in this Section 9.3 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 9.3.
(a) in the case of the Purchaser:
Proffitt's Credit Corporation
300 South Fourth Street, Suite 1100
Las Vegas, Nevada 89101
Attn: Douglas E. Coltharp, President
Telephone: (702) 598-3738
Telecopy: (702) 598-3651
with a copy to:
Proffitt's Inc.
3455 Highway 80 West
Jackson, Mississippi 39209
Telephone: (601) 968-4394
Telecopy: (601) 968-4354
Attn: Douglas E. Coltharp
Executive Vice President and
Chief Financial Officer
with an additional copy to:
NationsBank, N.A.
NationsBank Corporate Center
100 North Tryon Street
NC1-007-10-07
Charlotte, NC 28255
Attention: Michelle M. Heath NC1-007-10-07
Structured Finance
Telephone: (704) 386-7922
Telecopy: (704) 388-9169
(b) in the case of the Sellers:
Parisian, Inc.
3455 Highway 80 West
Jackson, Mississippi 39209
Telephone: (601) 968-4394
Telecopy: (601) 968-4354]
Attn: Douglas E. Coltharp
Executive Vice President,
Chief Financial Officer and Treasurer
Parisian Services, Inc.
3455 Highway 80 West
Jackson, Mississippi 39209
Telephone: (601) 968-4394
Telecopy: (601) 968-4354
Attn: James Glasscock
Executive Vice President and
Assistant Secretary
(c) in the case of the Servicer:
MCRAE'S, INC.
3455 Highway 80 West
Jackson, Mississippi 39209
Telephone: (601) 968-4394
Telecopy: (601) 968-4354
Attn: Douglas E. Coltharp
Executive Vice President and
Chief Financial Officer
(with a copy to each of Parisian, Inc. and Proffitt's,
Inc.)
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 9.4. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement or
any other Conveyance Paper 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 9.5. Assignment. This Agreement may not be assigned
by the parties hereto, except that the Purchaser may assign its rights
hereunder pursuant to the Transfer 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. The Purchas-
er hereby notifies (and the Sellers hereby acknowledge that) the Pur-
chaser, pursuant to the Transfer Agreement, has assigned its rights
hereunder to the Agent. All rights of the Purchaser hereunder may be
exercised by the Agent or its assignees, to the extent of their
respective rights pursuant to such assignments.
SECTION 9.6. Further Assurances. The Purchaser and the
Sellers 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 9.7. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Purchaser, the
Sellers 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, reme-
dies, powers and privilege provided by law.
SECTION 9.8. 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 9.9. 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
Agent, on behalf of Enterprise and the Bank Investors, and any Liquidity
Provider is intended by the parties hereto to be a third-party benefi-
ciary of this Agreement.
SECTION 9.10. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire under-
standing 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 9.11. Headings. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
SECTION 9.12. 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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IN WITNESS WHEREOF, the Purchaser, the Sellers 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.
PARISIAN, INC.,
as Seller
By:
Name:
Title:
PARISIAN SERVICES, INC.,
as Seller
By:
Name:
Title:
PROFFITT'S CREDIT CORPORATION,
as Purchaser
By:
Name:
Title:
MCRAE'S, INC.,
as Servicer
By:
Name:
Title:
Acknowledged and agreed as
of the date first above written:
ENTERPRISE FUNDING CORPORATION
By:_____________________________
Name:
Title:
NATIONSBANK, N.A., as Agent
By:_____________________________
Name:
Title:
EXHIBIT A
[FORM OF MONTHLY REPORT]
EXHIBIT B
FORM OF SUBORDINATED NOTE
Number 1 $__________________
January __, 1997
FOR VALUE RECEIVED, the undersigned, PROFFITT'S CREDIT
CORPORATION, a Nevada corporation (the "Maker"), hereby promises to pay
to the order of PARISIAN, INC. (the "Payee"), on _________, ____ or
earlier as provided for in the Receivables Purchase Agreement dated as
of the date hereof between the Maker and the Payee (as such agreement
may from time to time be amended, supplemented or otherwise modified and
in effect, the "Receivables Purchase Agreement"), the lesser of the
principal sum of ________ Million Dollars ($__,000,000.00) or the aggre-
gate unpaid principal amount of all Advances to the Maker from the Payee
pursuant to the terms of 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 set forth in the Receivables Purchase Agreement 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).
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 continua-
tion thereof which shall be attached hereto and made a part hereof, or
otherwise recorded by such holder in its internal records; provided,
however, that the failure of the holder hereof to make such a notation
or 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.
This Subordinated Note represents the indebtedness of the
Maker described in Section 3.2 of the Receivables Purchase Agreement,
including the assumption by the Maker and the amendment and restatement
of the aggregate outstanding indebtedness under those certain promissory
notes of Parisian Services, Inc. (to be canceled in exchange herefor)
each dated July 31, 1995 made payable to the order of (x) Parisian,
Inc., (y) Parisian of Tennessee, Inc. and (z) Hess Specialty Department
Store, Limited Liability Company (the successor in interest to Hess Spe-
cialty Department Store, Inc.).
The Maker shall have the right to prepay and, subject to the
limitations set forth in the Receivables Purchase Agreement, reborrow
Advances made to it without penalty or premium.
This Subordinated Note is the Subordinated Note referred to in
the Receivables Purchase Agreement, which, among other things, contains
provisions for the subordination of this Subordinated Note to the rights
of certain parties under the Transfer Agreement, all upon the terms and
conditions therein specified.
This Note shall be governed by, and construed in accordance
with, the laws of the State of Mississippi.
PROFFITT'S CREDIT CORPORATION
By:
Name:
Title:
Advances and Payments
Amount of Payments Unpaid Principal Name of Person
Date Advance Principal/Interest Balance of Note Making Notation
1/30/97 N/A N/A Amount of N/A
Promissory Note
[AS BALANCE FORWARD]
EXHIBIT C
LOCATION OF RECORDS, PRINCIPAL PLACE OF BUSINESS, ETC.
Parisian Services, Inc.
Principal Place 750 Lakeshore Drive
of Business: Birmingham, Alabama 35211
Location of Records: 750 Lakeshore Drive
Birmingham, Alabama 35211
Parisian, Inc.
Principal Place 3455 Highway 80 West
of Business: Jackson, Mississippi 39209
Location of Records: 3455 Highway 80 West
Jackson, Mississippi 39209
750 Lakeshore Drive
Birmingham, Alabama 35211
EXHIBIT D
TRADENAMES, ETC.
Parisian Services, Inc. is the wholly-owned subsidiary of Parisian, Inc.