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▇▇▇▇▇▇ TRUST AND SAVINGS BANK
and
PARTNERS FIRST RECEIVABLES, LLC
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RECEIVABLES PURCHASE AGREEMENT
Dated as of January 29, 1998
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1. Definitions..................................................1
Section 1.2. Other Definitional Provisions................................4
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.1. Purchase.....................................................4
Section 2.2. Additional Accounts..........................................6
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1. Purchase Price...............................................6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of the Bank
Relating to the Bank...................................7
Section 4.2. Representations and Warranties of the Bank
Relating to the Agreement and the Receivables..........8
Section 4.3. Representations and Warranties of PFR.......................10
Section 4.4. Limitation on Liability.....................................11
ARTICLE V
COVENANTS
Section 5.1. Covenants of the Bank.......................................11
ARTICLE VI
[RESERVED]
ARTICLE VII
[RESERVED]
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.1. Term........................................................13
Section 8.2. Purchase Termination........................................13
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1. Amendment...................................................14
Section 9.2. Governing Law...............................................14
Section 9.3. Notices.....................................................14
Section 9.4. Severability of Provisions..................................14
Section 9.5. Assignment..................................................15
Section 9.6. Acknowledgment and Agreement of the Bank....................15
Section 9.7. Further Assurances..........................................15
Section 9.8. No Waiver; Cumulative Remedies..............................16
Section 9.9. Counterparts................................................16
Section 9.10 Binding; Third-Party Beneficiaries..........................16
Section 9.11 Merger and Integration......................................16
Section 9.12 Headings....................................................16
Section 9.13 Schedules and Exhibits......................................16
Section 9.14 Survival of Representations and Warranties..................16
Section 9.15 Nonpetition Covenant........................................16
RECEIVABLES PURCHASE AGREEMENT, dated as of January 29, 1998,
by and between ▇▇▇▇▇▇ TRUST AND SAVINGS BANK, a banking association
organized under the laws of the state of Illinois (the "Bank"), and
PARTNERS FIRST RECEIVABLES, LLC, a Delaware limited liability company
("PFR").
W I T N E S S E T H:
WHEREAS, PFR desires to purchase, from time to time, certain
Receivables (hereinafter defined) from the Bank arising under specified
consumer revolving credit card accounts purchased or acquired by the Bank
and the Bank desires to sell such Receivables to PFR.
NOW, THEREFORE, it is hereby agreed by and between PFR and
the Bank as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. All capitalized terms used herein
or in any certificate, document, or Conveyance Paper made or delivered
pursuant hereto, and not defined herein or therein, shall have the
meaning ascribed thereto in the Pooling and Servicing Agreement; in
addition, the following words and phrases shall have the following
meanings:
"Account" shall mean (a) each MasterCard(R)1/ and VISA(R)1/
account established pursuant to a Credit Card Agreement identified by
account number and by the receivables balance as of the Closing Date in
the computer file, microfiche list or printed list delivered to PFR by
the Bank on the Closing Date, pursuant to the Contribution Agreement,
dated as of January 29, 1998, by and between the Bank and Holdings, (b)
each Additional Account (but only from and after the Addition Date with
respect thereto), (c) each Related Account, and (d) each Transferred
Account.
"Additional Account" shall mean each account maintained by
the Bank in accordance with the License Agreement following the date
hereof, pursuant to a Credit Card Agreement identified by Account number
and by receivables balance as of the related Addition Date in the
computer file, microfiche list or printed list delivered to PFR by the
Bank on such Addition Date.
--------
1/ MasterCard and VISA are registered trademarks of MasterCard
International Incorporated and of VISA USA, Inc., respectively.
"Addition Date" shall mean with respect to each Additional
Account, the date on which such Account is originated or acquired by the
Bank.
"Agreement" shall mean this Receivables Purchase Agreement
and all amendments hereof and supplements hereto.
"Assistance Agreement" shall mean the License and Agency
Agreement dated as of January 29, 1998 between Holdings and the Bank.
"Bank" shall mean ▇▇▇▇▇▇ Trust and Savings Bank, a banking
corporation organized under the laws of the state of Illinois, and its
successors and assigns.
"Closing Date" shall mean January 29, 1998.
"Conveyance" shall have the meaning specified in
subsection 2.1(a).
"Conveyance Papers" shall have the meaning specified in
subsection 4.1(c).
"Debtor Relief Laws" shall mean (i) the Bankruptcy Code of
the United States of America and (ii) all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, suspension of payments, readjustment of debt,
marshalling of assets or similar debtor relief laws of the United States,
any state or any foreign country from time to time in effect affecting
the rights of creditors generally.
"Finance Charge Receivables" shall mean all Receivables in
the Accounts which would be treated as "Finance Charge Receivables" in
accordance with the definition for such term in the Pooling and Servicing
Agreement.
"Holdings" shall mean Partners First Holdings, LLC, a
Delaware limited liability company.
"Initial Account" shall mean each Account owned by the Bank
on the date hereof.
"Insolvency Event" shall have the meaning specified in
Section 8.2.
"Interchange" shall mean interchange fees payable to the Bank
in its capacity as credit card issuer, through VISA or MasterCard in
connection with cardholder charges for goods and services with respect to
the Accounts.
"Investor Certificate" shall have the meaning specified
in the Pooling and Serving Agreement.
"Monthly Period" shall mean the period from and including the
first day of a calendar month to and including the last day of such
calendar month.
"New Principal Receivables" shall have the meaning set
forth in Section 3.1.
"Obligor" shall mean, with respect to each Account, each
person that would be treated as an "Obligor" in accordance with the
definition for such term in the Pooling and Servicing Agreement.
"PFRF" shall mean Partners First Receivables Funding, LLC, a
Delaware limited liability company.
"Pooling and Servicing Agreement" shall mean the Pooling and
Servicing Agreement, dated as of January 29, 1998, among Holdings, as
Servicer, PFRF, as Transferor, and the Trustee, and all amendments and
supplements thereto.
"Principal Receivables" shall mean all Receivables in the
Accounts that would be treated as "Principal Receivables" in accordance
with the definition for such term in the Pooling and Servicing Agreement.
"Purchase Price" shall have the meaning set forth in
Section 3.1.
"Purchased Assets" shall have the meaning set forth in
Section 2.1.
"Receivables" shall mean all amounts shown on the Bank's
records as amounts payable by Obligors on any Account from time to time,
including amounts payable for Principal Receivables and Finance Charge
Receivables. A Receivable shall be deemed to have been created at the end
of the Date of Processing of such Receivable.
"Servicer" shall have the meaning set forth in the
Pooling and Servicing Agreement.
"Transaction Documents" shall mean, the Pooling and
Servicing Agreement, the Series 1998-1 Supplement, this Agreement and
each Receivables Purchase Agreement.
"Transferor" shall mean Partners First Receivables Funding,
LLC, a Delaware limited liability company, and its permitted successors
and assigns.
"Transferor Purchase Agreement" shall mean the Receivables
Purchase Agreement, dated as of January 29, 1998 between PFR, as seller
and the Transferor, as purchaser.
"Transferred Account" shall mean each account into which an
Account shall be transferred provided that (i) such transfer was made in
accordance with the Credit Card Guidelines and (ii) such account can be
traced or identified as an account into which an Account has been
transferred.
"Transferred Receivables" shall have the meaning set
forth in Section 2.1.
"Trust" shall mean the trust created by the Pooling and
Servicing Agreement.
"Trustee" shall mean The Bank of New York, a New York banking
corporation, the institution executing the Pooling and Servicing
Agreement as, and acting in the capacity of Trustee thereunder, or its
successor in interest, or any successor trustee appointed as provided in
the Pooling and Servicing Agreement.
Section 1.2. Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the
defined meanings when used in any certificate, other document, or
Conveyance Paper made or delivered pursuant hereto unless otherwise
defined therein.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement or any Conveyance Paper shall
refer to this Agreement as a whole and not to any particular provision of
this Agreement; and Section, Subsection, Schedule and Exhibit references
contained in this Agreement are references to Sections, Subsections,
Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(c) All determinations of the principal or finance charge
balance of Receivables, and of any collections thereof, shall be made in
accordance with the Pooling and Servicing Agreement and all applicable
Supplements.
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.1. Purchase.
(a) By execution of this Agreement, the Bank does hereby
sell, transfer, assign, set over and otherwise convey to PFR
(collectively, the "Conveyance"), without recourse except as provided
herein, all its right, title and interest in, to and under (i) all of the
Receivables created in the Accounts following the Closing Date and all
Receivables created in each Additional Account originated or acquired by
the Bank following the related Addition Date (the "Transferred
Receivables"), whether such Receivables shall then be existing or shall
thereafter be created and all monies due and or to become due and all
amounts received with respect thereto and all proceeds (including,
without limitation, "proceeds" as defined in the UCC) thereof and (ii)
the right to receive Interchange and Recoveries with respect to such
Receivables (the "Purchased Assets").
(b) In connection with such Conveyance, the Bank agrees (i)
to record and file, at its own expense, any financing statements (and
continuation statements with respect to such financing statements when
applicable) with respect to the Receivables now existing and hereafter
created, meeting the requirements of applicable state law in such manner
and in such jurisdictions as are necessary to perfect, and maintain
perfection of, the Conveyance of such Purchased Assets from the Bank to
PFR, (ii) that such financing statements shall name the Bank, as seller,
and PFR, as purchaser, of the Receivables and (iii) to deliver a
file-stamped copy of such financing statements or other evidence of such
filings (excluding such continuation statements, which shall be delivered
as filed) to PFR as soon as is practicable after filing.
(c) In connection with such Conveyance, the Bank further
agrees that it will, at its own expense, (i) on the date of creation of
each Account indicate in its computer files that all of the Receivables
created in connection with such Account have been conveyed to PFR in
accordance with this Agreement by including in such computer files the
code identifying such Account and (ii) on or prior (x) to the date that
is 30 days after any date on which the Bank ceases to originate new
accounts in accordance with the Assistance Agreement and (y) any date on
which PFR is required to provide a computer file or microfiche list to
the Transferor under the Transferor Purchase Agreement, deliver to PFR a
computer file or microfiche list containing a true and complete list of
all such Accounts specifying for each such Account, as of the date on
which the Bank is no longer designating all new accounts originated in
accordance with the Assistance Agreement as Accounts, or the date
specified by PFR, as applicable,(A) its account number, (B) the aggregate
amount outstanding in such Account and (C) the aggregate amount of
Principal Receivables in such Account. Each such file or list, as
supplemented from time to time to reflect Additional Accounts, shall be
marked as Schedule I to this Agreement, shall be delivered to PFR, and is
hereby incorporated into and made a part of this Agreement. The Bank
further agrees not to alter the code referenced in clause (i) of this
paragraph with respect to any Account during the term of this Agreement.
(d) The parties hereto intend that the conveyance of the
Bank's right, title and interest in and to the Receivables shall
constitute an absolute sale, conveying good title free and clear of any
liens, claims, encumbrances or rights of others from the Bank to PFR and
that the Receivables shall not be a part of the Bank's estate in the
event of the insolvency of the Bank or a conservatorship, receivership or
similar event with respect to the Bank. It is the intention of the
parties hereto that the arrangements with respect to the Receivables
shall constitute a purchase and sale of such Receivables and not a loan.
In the event, however, that it were to be determined that the
transactions evidenced hereby constitute a loan and not a purchase and
sale, it is the intention of the parties hereto that this Agreement shall
constitute a security agreement under applicable law, and that the Bank
shall be deemed to have granted and does hereby grant to PFR a first
priority perfected security interest, in all of the Bank's right, title
and interest, whether now owned or hereafter acquired, in, to and under
the Receivables and other Purchased Assets to secure the rights of PFR
hereunder and the obligations of the Bank hereunder.
Section 2.2. Additional Accounts.
(a) Each newly originated Additional Account shall be deemed
to be an Account hereunder. The Bank shall take all actions necessary to
comply, or to enable PFR to comply, with the requirements of Section 2.3
of the Transferor Purchase Agreement and shall cooperate with PFR to
enable it to perform with respect to the Receivables in such Additional
Accounts all actions specified in Section 2.3 of the Transferor Purchase
Agreement.
(b) On the Addition Date with respect to any Additional
Accounts, PFR shall purchase the Bank's right, title and interest in, to
and under the Receivables in Additional Accounts (and such Additional
Accounts shall be deemed to be Accounts for purposes of this Agreement)
as of the close of business on the Addition Date, subject to the
satisfaction of the following conditions:
(i) the Bank shall have delivered to PFR copies of UCC-1
financing statements covering such Additional Accounts, if
necessary to perfect PFR's interest in the Receivables arising
therein;
(ii) to the extent required of PFR by 2.3(b) of the
Transferor Purchase Agreement, the Bank shall have deposited in the
Collection Account all Collections with respect to such Additional
Accounts since the Additional Cut-Off Date; and
(iii) as of each Addition Date, no Insolvency Event with
respect to the Bank shall have occurred nor shall the transfer of
the Receivables arising in the Additional Accounts to PFR have been
made in contemplation of the occurrence thereof.
Section 2.4. Representations and Warranties. The Bank
hereby represents and warrants to PFR as of the related Addition
Date as to the matters set forth in Section 2.2(b)(iii) above.
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1. Purchase Price.
(a) The Purchase Price for the Receivables (including
Receivables in Additional Accounts) to be conveyed to PFR under this
Agreement which come into existence after the Closing Date, shall be
payable on each day on which such Receivables are conveyed by the Bank to
PFR in an amount equal to 100% of the aggregate balance of the Principal
Receivables so conveyed (the "New Principal Receivables") adjusted to
reflect such factors as the Bank and PFR mutually agree will result in a
Purchase Price determined to be the fair market value of such New
Principal Receivables.
(b) The Purchase Price to be paid by PFR with respect to the
Receivables shall be paid in cash.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of the Bank
Relating to the Bank. The Bank hereby represents and warrants to, and
agrees with, PFR as of the Closing Date and on each Addition Date, that:
(a) Organization and Good Standing. The Bank is a banking
corporation duly organized and validly existing in good standing under
the laws of the State of Illinois and has, in all material respects, full
power and authority to own its properties and conduct its business as
presently owned or conducted, and to execute, deliver and perform its
obligations under this Agreement.
(b) Due Qualification. The Bank is duly qualified to do
business and is in good standing as an Illinois banking corporation (or
is exempt from such requirements) and has obtained all necessary licenses
and approvals, in each jurisdiction which requires such qualification
except where the failure to so qualify or obtain licenses or approvals
would not (i) render any Account or any Receivable unenforceable by the
Bank, PFR, the Transferor or the Trustee or (ii) have a material adverse
effect on the Certificateholders.
(c) Due Authorization. The execution, delivery and
performance of this Agreement and any other document or instrument
delivered pursuant hereto, including any supplemental conveyance (such
other documents or instruments, collectively, the "Conveyance Papers"),
and the consummation of the transactions provided for in this Agreement
and the Conveyance Papers have been duly authorized by the Bank by all
necessary corporate action on the part of the Bank.
(d) No Conflict. The execution and delivery of this Agreement
and the Conveyance Papers by the Bank, the performance of the
transactions contemplated by this Agreement and the Conveyance Papers,
and the fulfillment of the terms of this Agreement and the Conveyance
Papers will not conflict with, violate or result in any breach of any of
the terms and provisions of, or constitute (with or without notice or
lapse of time or both) a default under, any indenture, contract,
agreement, mortgage, deed of trust, or other instrument to which the Bank
is a party or by which it or any of its properties are bound which would
have a material adverse effect on the Bank's ability to perform its
obligations hereunder.
(e) No Violation. The execution, delivery and performance of
this Agreement and the Conveyance Papers by the Bank and the fulfillment
of the terms contemplated herein and therein applicable to the Bank will
not conflict with or violate any Requirements of Law applicable to the
Bank in a manner which would have a material adverse effect on the Bank's
ability to perform its obligations hereunder.
(f) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Bank, threatened
against the Bank, before any Governmental Authority (i) asserting the
invalidity of this Agreement or the Conveyance Papers, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or the Conveyance Papers, (iii) seeking any determination or
ruling that, in the reasonable judgment of the Bank, would materially and
adversely affect the performance by the Bank of its obligations under
this Agreement or the Conveyance Papers, (iv) seeking any determination
or ruling that would materially and adversely affect the validity or
enforceability of this Agreement or the Conveyance Papers or (v) seeking
to affect adversely the income tax attributes of the Trust under the
United States federal or Delaware income tax systems.
(g) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the Bank in
connection with the execution and delivery by the Bank of this Agreement
and the Conveyance Papers and the performance of the transactions
contemplated by this Agreement or the Conveyance Papers by the Bank have
been duly obtained, effected or given and are in full force and effect.
The representations and warranties set forth in this Section
4.1 shall survive the transfer and assignment of the Receivables to PFR.
Upon discovery by the Bank or PFR of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall
give written notice to the other party within three Business Days
following such discovery.
Section 4.2. Representations and Warranties of the Bank
Relating to the Agreement and the Receivables.
(a) Representations and Warranties. The Bank hereby
represents and warrants to PFR as of the Closing Date and, with respect
to Additional Accounts, as of the related Addition Date that:
(i) this Agreement constitutes a legal, valid and binding
obligation of the Bank enforceable against the Bank in accordance
with its terms, except as such enforceability may be limited by
receivership, conservatorship and supervisory powers of bank
regulatory agencies generally, as well as by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect or general
principles of equity;
(ii) each Transferred Receivable has been conveyed to PFR
free and clear of any Lien of any Person claiming through or under
the Bank or any of its other Affiliates (other than Liens permitted
under subsection 2.7(b) of the Pooling and Servicing Agreement);
(iii) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority
required to be obtained, effected or given by the Bank in
connection with the conveyance of Transferred Receivables to PFR
have been duly obtained, effected or given and are in full force
and effect;
(iv) this Agreement or, in the case of the Additional
Accounts, the related Supplemental Conveyance constitutes a valid
sale, transfer and assignment to PFR of all right, title and
interest of the Bank in the Transferred Receivables and the
proceeds thereof and the Interchange payable pursuant to this
Agreement and the Recoveries payable pursuant to this Agreement or,
if this Agreement does not constitute a sale of such property, it
constitutes a grant of a first priority perfected "security
interest" (as defined in the UCC) in such property to PFR, which,
in the case of existing Transferred Receivables and the proceeds
thereof and said Recoveries and Interchange, is enforceable upon
execution and delivery of this Agreement, or, with respect to then
existing Receivables in Additional Accounts, as of the applicable
Addition Date, and which will be enforceable with respect to such
Receivables hereafter and thereafter created and the proceeds
thereof upon such creation. Upon the filing of the financing
statements and, in the case of Receivables hereafter created and
the proceeds thereof, upon the creation thereof, PFR shall have a
first priority perfected security or ownership interest in such
property and proceeds;
(v) on the Addition Date, each related Additional Account
designated by the Bank to PFR is an Eligible Account;
(vi) on the applicable Addition Date, each Receivable
designated as an Eligible receivable by the Bank to PFR is an
Eligible Receivable; and
(vii) as of the date of the creation of any new Receivable,
each Receivable designated as an Eligible Receivable by the Bank to
PFR is an Eligible Receivable.
(b) Notice of Breach. The representations and warranties set
forth in this Section 4.2 shall survive the transfer and assignment of
the Receivables to PFR. Upon discovery by either the Bank or PFR of a
breach of any of the representations and warranties set forth in this
Section 4.2, the party discovering such breach shall give written notice
to the other party within three Business Days following such discovery;
provided that the failure to give notice within three Business Days does
not preclude subsequent notice. The Bank hereby acknowledges that PFR
intends to rely on the representations hereunder in connection with
representations made by PFR to secured parties, assignees or subsequent
transferees including but not limited to assignments made by PFR to the
Transferor pursuant to the Transferor Purchase Agreement.
(c) Representation and Warranty of the Bank as to
Information. The Bank hereby represents and warrants, as of each date on
which the file or list referred to in Section 2.1(c) is delivered to PFR,
that the information contained therein is true, complete and correct in
all material respects.
Section 4.3. Representations and Warranties of PFR. PFR
hereby represents and warrants to the Bank as of the Closing Date and,
with respect to Additional Accounts, as of the related Addition Date
that:
(a) Organization and Good Standing. PFR is a limited
liability company duly organized and validly existing and is in good
standing under the laws of the State of Delaware and has, in all material
respects, full power and authority to own its properties and conduct its
business as presently owned, conducted or contemplated by the Transaction
Documents and to execute, deliver and perform its obligations under this
Agreement and the Conveyance Papers.
(b) Due Authorization. The execution and delivery of this
Agreement and the Conveyance Papers and the consummation of the
transactions provided for in this Agreement and the Conveyance Papers
have been duly authorized by PFR by all necessary corporate action on the
part of PFR.
(c) No Conflict. The execution and delivery of this Agreement
and the Conveyance Papers by PFR, the performance of the transactions
contemplated by this Agreement and the Conveyance Papers, and the
fulfillment of the terms of this Agreement and the Conveyance Papers
applicable to PFR, will not conflict with, result in any breach of any of
the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any indenture,
contract, agreement, mortgage, deed of trust or other instrument to which
PFR is a party or by which it or any of its properties are bound.
(d) No Violation. The execution, delivery and performance of
this Agreement and the Conveyance Papers by PFR and the fulfillment of
the terms contemplated herein and therein applicable to PFR will not
conflict with or violate any Requirements of Law applicable to PFR.
(e) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of PFR, threatened
against PFR, before any court, regulatory body, administrative agency, or
other tribunal or governmental instrumentality (i) asserting the
invalidity of this Agreement or the Conveyance Papers, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or the Conveyance Papers, (iii) seeking any determination or
ruling that, in the reasonable judgment of PFR, would materially and
adversely affect the performance by PFR of its obligations under this
Agreement or the Conveyance Papers or (iv) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Agreement or the Conveyance Papers.
(f) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by PFR in connection
with the execution and delivery by PFR of this Agreement and the
Conveyance Papers and the performance of the transactions contemplated by
this Agreement and the Conveyance Papers have been duly obtained,
effected or given and are in full force and effect.
The representations and warranties set forth in this Section
4.3 shall survive the Conveyance of the Receivables to PFR. Upon
discovery by PFR or the Bank of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall
give prompt written notice to the other party.
Section 4.4. Limitation on Liability. The liability of the
Bank for any breach of any representation, and warranty, term or
condition of this Agreement shall be limited, in the absence of gross
negligence or willful misconduct by the Bank, to an amount which shall
not exceed with respect to any claim the amount actually recovered by the
Bank from Holdings (without recourse to any guaranty of Holdings'
obligations) with respect to such claim pursuant to the Assistance
Agreement.
ARTICLE V
COVENANTS
Section 5.1. Covenants of the Bank. The Bank hereby covenants
and agrees with PFR as follows:
(a) Receivables Not To Be Evidenced by Promissory Notes.
Except in connection with its enforcement or collection of an Account,
the Bank will take no action to cause any Receivable to be evidenced by
any instrument other than an instrument that, taken together with one or
more other writings, constitutes chattel paper (as such terms are defined
in the UCC).
(b) Security Interests. Except for the conveyances hereunder,
the Bank will not sell, pledge, assign or transfer to any other Person,
or take any other action inconsistent with PFR's ownership of the
Receivables or grant, create, incur, assume or suffer to exist any Lien
on, any Receivable, whether now existing or hereafter created, or any
interest therein, and the Bank shall not claim any ownership interest in
the Receivables and shall defend the right, title and interest of PFR in,
to and under the Receivables, whether now existing or hereafter created,
against all claims of third parties claiming through or under the Bank;
provided, however, that nothing in this section shall prevent or be
deemed to prohibit the Bank from suffering to exist upon any of the
Receivables any Liens for taxes if such taxes shall not at the time be
due and payable or if the Bank shall currently be contesting the validity
thereof in good faith by appropriate proceedings and shall have set aside
on its books adequate reserves with respect thereto.
(c) Notice of Liens. The Bank shall notify PFR promptly after
becoming aware of any Lien on any Receivable other than the conveyances
hereunder and under Liens arising through or granted by PFR or any
subsequent transferee.
(d) Interchange. Not later than 1:00 p.m., New York City
time, on each Business Day, the Bank shall pay or cause to be paid to
PFR, in immediately available funds, the amount of Interchange to be
included as Collections of Finance Charge Receivables in the Accounts for
such Business Day, which shall be an amount equal to (i) the product of
(a) the total amount of interchange fees collected by the Bank on the
prior Business Day, and (b) a fraction, the numerator of which is the
aggregate amount of cardholder sales charges (net of returns) which arose
on the prior Business Day with respect to the Accounts and the
denominator of which is the aggregate amount of cardholder sales charges
(net of returns) which arose on the prior Business Day with respect to
all revolving consumer credit card accounts (including the Accounts)
owned by the Bank, or (ii) if at any time the Bank cannot identify or
cause to be identified the amount of such Interchange, the amount
reasonably estimated by the Bank as the amount of such Interchange.
(e) Documentation of Transfer. The Bank shall undertake to
file the documents which would be necessary to perfect and maintain the
transfer of the Purchased Assets to PFR.
(f) Segregation of Accounts. The records and agreements
relating to the Accounts will be marked to evidence the sale or transfer
of the Receivables to PFR; provided, however, that the documents or
agreements relating to the Accounts and the Receivables need not be
segregated from documents or agreements relating to other credit card
accounts and receivables.
(g) Periodic Rate Finance Charges. (i) Except (x) as
otherwise required by any Requirements of Law or (y) as is deemed by the
Bank to be necessary in order for it to maintain its credit card business
or a program operated by such credit card business on a competitive basis
based on a good faith assessment by it of the nature of the competition
with respect to the credit card business or such program, it shall not at
any time take any action which would have the effect of reducing the
Portfolio Yield to a level that could be reasonably expected to cause any
Series to experience any Pay Out Event or Reinvestment Event based on the
insufficiency of the Portfolio Yield or any similar test and (ii) except
as otherwise required by any Requirements of Law, it shall not take any
action which would have the effect of reducing the Portfolio Yield to be
less than the highest Average Rate for any Group.
(h) Credit Card Agreements and Guidelines. Subject to
compliance with all Requirements of Law and paragraph (g) above, the Bank
may change the terms and provisions of the applicable Credit Card
Agreements or the applicable Credit Card Guidelines in any respect
(including the calculation of the amount or the timing of charge-offs and
the Periodic Rate Finance Charges to be assessed thereon).
Notwithstanding the above, unless required by Requirements of Law or as
permitted by Section 5.2(g), the Bank will take no action with respect to
the applicable Credit Card Agreements or the applicable Credit Card
Guidelines, which, at the time of such action, the Bank reasonably
believes will have a material adverse effect on PFR, the Transferor or
the Investor Certificateholders.
(i) Official Records. The Bank will maintain this Agreement
as part of its official records.
The Bank further covenants that it will not enter into any
amendments to this Agreement or enter into a new Receivables Purchase
Agreement unless the Rating Agency Condition has been satisfied.
ARTICLE VI
[RESERVED]
ARTICLE VII
[RESERVED]
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.1. Term. This Agreement shall commence as of the
date of execution and delivery hereof and shall not terminate prior to
the termination of the Transferor Purchase Agreement as provided in
Article VIII of the Transferor Purchase Agreement.
Section 8.2. Purchase Termination. If the Bank shall
fail generally to, or admit in writing its inability to, pay its
debts as they become due; or if a proceeding shall have been
instituted in a court having jurisdiction in the premises seeking a
decree or order for relief in respect of the Bank in an involuntary
case under any Debtor Relief Law, or for the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator,
conservator or other similar official of the Bank or for any
substantial part of the Bank's property, or for the winding-up or
liquidation of the Bank's affairs and, if instituted against the
Bank, any such proceeding shall continue undismissed or unstayed
and in effect, for a period of 60 consecutive days, or any of the
actions sought in such proceeding shall occur; or if the Bank shall
commence a voluntary case under any Debtor Relief Law, or if the
Bank shall consent to the entry of an order for relief in an
involuntary case under any Debtor Relief Law, or consent to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator, conservator or other
similar official of, or for, any substantial part of its property,
or any general assignment for the benefit of its creditors; or the
Bank or any subsidiary of the Bank shall have taken any corporate
action in furtherance of any of the foregoing actions (each an
"Insolvency Event") or, if an Insolvency Event (as defined in
Section 8.2 of the Transferor Purchase Agreement) shall have
occurred; then the Bank shall immediately cease to transfer
Principal Receivables to PFR and shall promptly give notice to PFR
of such Insolvency Event. Notwithstanding any cessation of the
transfer to PFR of additional Principal Receivables, Principal
Receivables transferred to PFR prior to the occurrence of such
Insolvency Event and Collections in respect of such Principal
Receivables and Finance Charge Receivables whenever created or
accrued in respect of such Principal Receivables, shall continue to
be property of PFR available for transfer by PFR to the Transferor
for transfer to the Trust pursuant to the Pooling and Servicing
Agreement.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1. Amendment. This Agreement and any Conveyance
Papers and the rights and obligations of the parties hereunder may not be
changed orally, but only by an instrument in writing signed by PFR and
the Bank in accordance with this Section 9.1. This Agreement and any
Conveyance Papers may be amended from time to time by PFR and the Bank
(i) to cure any ambiguity, (ii) to correct or supplement any provisions
herein which may be inconsistent with any other provisions herein or in
any such other Conveyance Papers, (iii) to add any other provisions with
respect to matters or questions arising under this Agreement or any
Conveyance Papers which shall not be inconsistent with the provisions of
this Agreement or any Conveyance Papers, (iv) to change or modify the
Purchase Price and (v) to change, modify, delete or add any other
obligation of the Bank or PFR; provided, however, that no amendment
pursuant to clause (iv) or (v) of this Section 9.1 shall be effective
unless the Bank and PFR have been notified in writing that the Rating
Agency Condition has been satisfied; provided, further, that such action
shall not (as evidenced by an Opinion of Counsel delivered to the
Transferor and any subsequent assignee of the Receivables by PFR or the
Transferor) adversely affect in any material respect the interests of the
Transferor or any such subsequent assignee of the Receivables, including
without limitation the Trustee or the Investor Certificateholders, unless
any such assignee, including without limitation, the Trustee shall
consent thereto. Any reconveyance executed in accordance with the
provisions hereof shall not be considered to be an amendment to this
Agreement. A copy of any amendment to this Agreement shall be sent to the
Rating Agency.
Section 9.2. Governing Law. THIS AGREEMENT AND THE CONVEYANCE
PAPERS SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.3. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given
if personally delivered at or mailed by registered mail, return receipt
requested, to (a) in the case of PFR, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (facsimile
no. (▇▇▇) ▇▇▇-▇▇▇▇), (b) in the case of the Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ (facsimile no. (312)
461- 3869; 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 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, and terms
of this Agreement or any Conveyance Paper and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or
of any Conveyance Paper.
Section 9.5. Assignment. Notwithstanding anything to the
contrary contained herein, other than PFR's assignment to the Transferor
and the Transferor's assignment to the Trustee, of all of their
respective rights in, to and under this Agreement to the extent such
rights relate to the Receivables purchased from PFR by the Transferor
pursuant to the Transferor Purchase Agreement, this Agreement and all
other Conveyance Papers may not be assigned by the parties hereto;
provided, however, that the Bank shall have the right to assign its
rights, title and interests, in, to and under this Agreement to (i) any
successor by merger assuming this Agreement or (ii) any affiliate owned
directly or indirectly by Holdings provided that each Rating Agency has
advised PFR and the Bank that the Rating Agency Condition has been
satisfied.
Section 9.6. Acknowledgment and Agreement of the Bank. By
execution below, the Bank expressly acknowledges and agrees that all of
PFR's rights, title, and interest in, to, and under this Agreement to the
extent such rights relate to Receivables transferred by PFR to the
Transferor, including, without limitation, all of PFR's right, title, and
interest in and to such Receivables, shall be assigned by PFR to the
Transferor and by the Transferor to the Trustee for the benefit of the
beneficiaries of the Trust, including the Certificateholders, and the
Bank consents to such assignments. The Bank further agrees that
notwithstanding any claim, counterclaim, right or setoff or defense which
it may have against PFR, due to a breach by PFR of this Agreement or for
any other reason, and notwithstanding the bankruptcy of PFR or any other
event whatsoever, the Bank's sole remedy against PFR shall be a claim
against PFR for money damages and, then only to the extent of funds
received by PFR pursuant to the Transferor Purchase Agreement, and in no
event shall the Bank assert any claim on or any interest in the
Receivables or any proceeds thereof or take any action which would reduce
or delay receipt by Certificateholders of collections with respect to the
Receivables. Additionally, the Bank agrees for the benefit of the
Transferor and the Trustee that any amounts payable by the Bank to PFR
hereunder which are to be paid by PFR to the Transferor and by the
Transferor to the Trustee for the benefit of the Certificateholders shall
be paid by the Bank on behalf of PFR and the Transferor, directly to the
Trustee.
Section 9.7. Further Assurances. PFR and the Bank 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 and the
Conveyance Papers 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 UCC or
other law of any applicable jurisdiction.
Section 9.8. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of PFR or the Bank, 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.
Subject to Sections 4.4 and 9.6, the rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
Section 9.9. Counterparts. This Agreement and all Conveyance
Papers may be executed in two or more counterparts (and by different
parties on separate counterparts), each of which shall be an original,
but all of which together shall constitute one and the same instrument.
Section 9.10. Binding; Third-Party Beneficiaries. This
Agreement and the Conveyance Papers will inure to the benefit of and be
binding upon the parties hereto and their respective successors and
permitted assigns. The Transferor and the Trustee shall be considered
third-party beneficiaries of this Agreement.
Section 9.11. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement and the Conveyance Papers set
forth the entire understanding of the parties relating to the subject
matter hereof, and all prior understandings, written or oral, are
superseded by this Agreement and the Conveyance Papers. This Agreement
and the Conveyance Papers may not be modified, amended, waived or
supplemented except as provided herein.
Section 9.12. Headings. The headings are for purposes of
reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
Section 9.13. Schedules and Exhibits. The schedules and
exhibits attached hereto and referred to herein shall constitute a part
of this Agreement and are incorporated into this Agreement for all
purposes.
Section 9.14. Survival. All representations, warranties and
agreements contained in this Agreement shall remain operative and in full
force and effect and shall survive any subsequent conveyance of the
Receivables by PFR. The provisions of Section 4.4 shall survive the
termination of this Agreement.
Section 9.15. Nonpetition Covenant. The Bank hereby covenants
and agrees that prior to the date which is one year and one day after the
payment in full of all Investor Certificates of all Series, it will not
institute against or join any other Person in instituting against PFR any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under the laws of the United
States or any state of the United States.
Section 9.16. Assignment and Assumption Agreement. The
parties hereby acknowledge and agree that the Conveyance set forth in
Section 2.1 and the conveyances of Receivables existing in the Accounts
on the Closing Date pursuant to Section I.2 and II.2 of the Assignment
and Assumption Agreement, dated as of the date hereof, between the Bank
and PFR (the "Assignment and Assumption Agreement") are intended to be
part of a single agreement, and in order to reflect such intent, such
Sections I.2 and II.2 (together with the definitions of any defined terms
used therein) are hereby incorporated herein by reference as if fully set
forth herein. The parties hereto agree that this Agreement and the
Assignment and Assumption Agreement shall not be separately assigned,
pledged, conveyed or otherwise transferred. It is the intention of the
parties hereto that the conveyance set forth in this Agreement and the
conveyance set forth in the Assignment and Assumption Agreement be
interpreted as a single integrated and interdependent whole and that the
obligations of the parties with respect to either conveyance be dependent
upon the other such conveyance.
IN WITNESS WHEREOF, the undersigned have caused this
Receivables Purchase Agreement to be duly executed by their respective
officers as of the day and year first above written.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
PARTNERS FIRST RECEIVABLES, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
Schedule I
LIST OF ACCOUNTS
DEEMED INCORPORATED BY REFERENCE
