PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this "Agreement")
dated as of September 4, 1998 by and between the PNC NATIONAL
BANK, a national banking association ("Seller"), and DIRECT
MERCHANTS CREDIT CARD BANK, NATIONAL ASSOCIATION, a national
banking association ("Purchaser").
RECITALS
WHEREAS, Seller is the owner of certain credit card
Accounts and Related Receivables; and
WHEREAS, Seller desires to sell and Purchaser desires
to purchase, upon the terms and subject to the conditions set
forth herein, the properties, rights and privileges of Seller in
and to certain credit card Accounts and Related Receivables owned
by Seller.
NOW THEREFORE, in consideration of the mutual covenants
and agreements hereinafter set forth and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
ARTICLE I. DEFINITIONS
Section 1.1 Defined Terms. As used in this Agreement, the
following terms where written with an initial capital letter
shall have the following respective meanings (such terms to be
equally applicable to both the singular and plural forms of the
terms defined):
"Account" means all of Seller's MasterCard Card and
VISA Card (whether standard, Gold, or Platinum) accounts in the
Portfolio as of the Cut-Off Date which are not Excluded Accounts,
Secured Accounts or Business Accounts.
"Account Documentation" means all existing records
relating to the Accounts in the Portfolio, including without
limitation, to the extent that the same exist, credit card
applications, Cardholder Agreements (or the form thereof),
documents, disclosure statements, credit information files,
credit card slips, receipts, drafts, instruments, customer lists,
billing error notices and other records relating to the Accounts
in the Portfolio, whether on paper, microfilm, microfiche,
magnetic tape, computer disc or in any other form as maintained
by Seller or by Seller's data processor.
"Accountants" has the meaning set forth in Section
2.5(d).
"Adjustment Statement" means a statement prepared by
Seller relating to and specifying in reasonable detail the
calculation of the Purchase Price and any adjustments thereto
provided for in Section 2.5(a), substantially in the form of
Exhibit C, together with such back-up detail as may be reasonably
requested by Seller.
"Adjustment Payment" means the amount by which the
Purchase Price differs from the adjusted Purchase Price set forth
on the Adjustment Statement.
"Affiliate" means, with respect to Seller or Purchaser,
as the case may be, any entity that directly or indirectly
controls, is controlled by, or which is under common control with
Seller or Purchaser, as the case may be.
"Agreement" means this Purchase Agreement, including
all schedules, exhibits and addenda hereto, as the same may be
amended, modified or supplemented and in effect from time to
time.
"Allocation Schedule" has the meaning set forth in
Section 2.6.
"Assets to be Sold" has the meaning set forth in
Section 2.1.
"Assignment" means the Assignment to be delivered by
Seller to Purchaser on the Payment Date, in substantially the
form of Exhibit A, pursuant to which Seller will sell, transfer
and assign the Assets to be Sold to Purchaser.
"Assumed Liabilities" has the meaning set forth in
Section 2.2.
"Bankrupt" means an Account which fits one or more of
the following descriptions:
(i) is externally statused as "B" on the FDR system;
(ii) is contained in a special designated "bankruptcy"
collection queue;
(iii) has been flagged on the FDR system as a pending
bankrupt account; or
(iv) the Cardholder files for bankruptcy before
the Cut-Off Date and Seller receives notification of
such filing from any source before the Adjustment
Statement date.
"Business Account" means an Account for which any
cardholder or guarantor is an existing business entity or sole
proprietorship.
"Business Day" means a day during which Seller and
Purchaser actually conduct their general business activities, but
shall not include a Saturday, a Sunday or a day on which banking
institutions by Delaware or Arizona law or executive order are
authorized or obligated to close and, in case of either Seller or
Purchaser, its offices in such state are closed.
"Card" means a credit card which is issued or was
acquired by Seller, directly or indirectly, pursuant to the
Governing Regulations and which bears the service xxxx of
"MasterCard or "VISA".
"Cardholder" means a natural person or persons to whom
a Card is issued by Seller in connection with an Account and in
whose name or names the corresponding Account is established and
any other person obligated under or, authorized to use, an
Account.
"Cardholder Agreement" means the agreement containing
the terms and conditions applicable to an Account made between
Seller and a Cardholder pursuant to which the Account of such
Cardholder is established, as such agreement may be amended by
any "change in terms" notices in effect from time to time, copies
of which are attached hereto as Exhibit H and incorporated herein
by reference.
"Charge-off" or "Charged-off" means an Account which
fits one of the following descriptions:
(i) Accounts externally statused as "Z" on the FDR system;
(ii) Accounts with balances that are equal to or more than
180 days contractually delinquent (or 210 FDR days delinquent);
(iii) Accounts that are "early outs" (that is, Accounts that
have been sent to a collection agency prior to being externally
statused as "Z" on the FDR system) but excluding Accounts that
constitute "outsourced" accounts serviced by third parties in the
normal course of Seller's business; or
(iv) any Accounts that are not currently externally statused
as "Z" but should have been so statused prior to the Cut-Off Date
based on Seller's business practices.
"Claim" has the meaning set forth in Section 9.3.
"Closing" means the actions taken by both Seller and
Purchaser to consummate the Sale Transaction on or around the
Payment Date.
"Conversion" means the process of transferring from
Seller, or from Seller's data processing servicer, to Purchaser,
or to Purchaser's data processing servicer, all record keeping
and servicing functions related to the ongoing activity of the
Accounts.
"Conversion Date" means the date on which the
Conversion is completed, which date shall be February 12, 1999 or
such other later date as is mutually agreeable to the parties but
in no event later than March 31, 1999.
"Credit Card Marks" has the meaning set forth in
Section 3.7.
"Customer Base" means the proprietary information
relating to the Accounts which includes the customer lists
containing names and the most recent addresses of the Cardholders
with respect to such Accounts and all information reported on
Seller's data processing system relating thereto.
"Cut-Off Date" means the time of the close of
processing by Seller of the Accounts on November 4, 1998, or such
other date as may be agreed to in writing by Seller and
Purchaser.
"Deceased" means an Account for which the Cardholder
(who is not an authorized user) has died before the Cut-Off Date
and Seller receives notification of the Cardholder's death from
any source before the Adjustment Statement date.
"Excluded Account" means any Account that is deemed to
be Bankrupt, Charged-off or Charge-off, Fraud, Lost/Stolen or
Deceased as of the Cut-Off Date.
"FDR" means First Data Resources Inc., its successors
and assigns, which provides Account servicing to the Seller.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day during
such period to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next
preceding Business Day) by Bloomberg Financial Markets under the
index name FEDL01, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for
such day on such transactions received by Seller from three
Federal funds brokers of recognized standing selected by it.
"Fraud" means an Account which has an external status
of "U" on the FDR system or had any fraudulent transaction
posted to the Account prior to the Cut-Off Date and Seller
receives notification of the fraudulent transaction from any
source before the Adjustment Statement date.
"Governing Organization" means each of MasterCard
International, Inc. and VISA U.S.A. Inc.
"Governing Regulations" means the bylaws, rules and
regulations of the applicable Governing Organization.
"Indemnified Party" has the meaning set forth in
Section 9.3.
"Indemnifying Party" has the meaning set forth in
Section 9.3.
"Interim Servicing Agreement" means the Interim
Servicing Agreement separately executed by the parties as of the
Payment Date.
"Loss" has the meaning set forth in Section 9.1.
"Lost/Stolen" means an Account which has been
externally statused as "L" on the FDR system.
"Payment Date" means the next Business Day following
the Cut-Off Date.
"Payment Statement" means a statement prepared by
Seller relating to and specifying in reasonable detail the
calculation of the Purchase Price provided for in Section 2.3,
substantially in the form of Exhibit B, together with such back-
up detail as may be reasonably requested by Purchaser.
"Portfolio" means Accounts to be sold to Purchaser by
Seller, which Accounts represent all Accounts which have a
mailing address that is outside the Seller's current six state
bank service area (Pennsylvania, New Jersey, Delaware, Kentucky,
and parts of Ohio, and Indiana) and which do not have any other
known customer relationships with Seller and are not included in
Seller's co-brand or affinity credit card relationships. In no
event does this definition expand to any accounts not included on
the masterfile tape provided to Purchaser as of May 31, 1998
other than those new Accounts established to maintain the good
receivables from a Fraud Account or Lost/Stolen Account.
"Protected Party" has the meaning set forth in Section
5.1(b).
"Purchase Price" has the meaning set forth in Section
2.3.
"Regulation Z" means Regulation Z of the Board of
Governors of the Federal Reserve System of the United States, as
the same may be amended and in effect from time to time.
"Related Receivables" means the amount owing by the
Cardholder to Seller on the Cardholder's Account (including
outstanding extensions of credit, billed finance charges, and any
other charges and fees assessed on said Account ) as recorded in
the periodic statement of such Account most recently rendered
prior to the Cut-Off Date, plus all debits and less all credits
properly posted to such Account pursuant to the terms of the
Cardholder Agreement on or before the Cut-Off Date.
"Sale Transaction" means the sale of the Assets to be
Sold and the other transactions contemplated by this Agreement.
"Secured Account" means a credit card account secured
by money, real estate or other property which serves as
collateral for any outstanding balances on the credit card
account in the event the cardholder defaults on the terms of the
account.
"Unposted Accrued Finance Charges" means the aggregate
amount of finance charges that have been correctly accrued, but
have not been posted, to each Account from the last settlement
date of such Account to (and including) the Cut-Off Date and
which charges are subsequently properly billed to the Cardholder
in accordance with the terms of the applicable Cardholder
Agreement.
Section 1.2 Other Definitional Terms. The words "hereof",
"herein" and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement. References to
Article, Section, Schedule, Exhibit and like references refer to
this Agreement unless otherwise specified.
ARTICLE II. SALE AND PURCHASE OF ASSETS.
Section 2.1 Sale and Purchase.
(a) Upon the terms and subject to the conditions set forth in
this Agreement, Seller agrees to sell, assign and transfer to
Purchaser, and Purchaser agrees to purchase and receive from
Seller, all right, title and interest of Seller in and to the
following assets and the following rights and privileges of the
Seller (collectively, the "Assets to be Sold") and to assume the
obligations described in Section 2.2:
(i) the Accounts in the Portfolio;
(ii) the Related Receivables relating to the Accounts;
(iii) the Customer Base of the Accounts;
(iv) the Cards and all Account Documentation relating
to the Accounts in a format mutually agreed upon by
both parties;
(v) all of Seller's rights and privileges accruing
pursuant to the Cardholder Agreements governing the
Accounts and the related Cards;
(vi) all of Seller's rights to any interchange fees
paid or payable by a Governing Organization with respect to the
Accounts which are attributable to all periods after the Cut-Off
Date; and
(vii) assignment of the incentive travel product
agreement between Media Marketing Services and Seller, dated as
of December 30, 1996.
Such purchase and sale shall be evidenced by Seller's delivery to
the Purchaser on the Payment Date of the Assignment and by
Purchaser's payment to Seller on the Payment Date of the Purchase
Price. The sale of the Assets to be Sold shall be without
recourse to Seller, subject only to Seller's covenants in this
Agreement (including, without limitation, Seller's covenants in
Section 2.5, Section 3.5, Article III, Article V and Article X)
and Seller's representations and warranties in Article VI.
(b) On the Payment Date and subject to all of the terms and
conditions set forth herein, Seller shall assign to Purchaser all
payments from time to time paid or payable to Seller under
agreements with third party providers of services to Cardholders
identified on Exhibit I hereto that pertain to Accounts and
relate to transactions or periods following the Cut-Off Date, and
Seller agrees to execute and deliver to Purchaser on the Payment
Date and thereafter one or more instruments of assignment to
evidence such assignment and to cooperate with Purchaser in
arranging, to the extent possible, for direct payment of the
amounts subject to this assignment by the third party providers.
Within 60 days of the Conversion Date, Purchaser shall have
entered into separate contractual arrangements with third party
providers for the payment of any amounts assigned to Purchaser
under this Section 2.1(b) and Seller's obligation to forward to
Purchaser any payments that are rightfully Purchaser's shall
terminate.
Section 2.2 Assumption of Liabilities. At the Closing, upon
the satisfaction or waiver of each condition precedent and
payment of the Purchase Price, Purchaser shall assume only the
following obligations, each without the execution or delivery of
any additional documents (collectively, the "Assumed
Liabilities"):
(i) all of the obligations of Seller arising after the Cut-Off
Date to perform under the Cardholder Agreements included in the
Assets to be Sold;
(ii) the obligation to make payments to Seller equal to any
amounts payable by Seller to MasterCard or VISA related to
activity in the Accounts after the Cut-Off Date (but in no event
shall Purchaser assume any liability in connection with any
cancellation or other modification of any of Seller's agreements
or arrangements with MasterCard or VISA);
(iii) all of the obligations of Seller arising after the Cut-
Off Date to perform with respect to the Assets to be Sold under
any Governing Regulation;
(iv) obligations of Seller under the incentive travel
product agreement between Media Marketing Services and Seller,
dated as of December 30, 1996 and assigned to Purchaser pursuant
to Section 2.1(a)(vii).
Section 2.3 Purchase Price. The purchase price of the Assets
to be Sold (the "Purchase Price") shall be equal to the sum of:
(a) 1.00 multiplied by the result of
(i) the total amount of Related Receivables with respect to the
Accounts calculated as of the Cut-Off Date;
minus
(b) a discount of two percent (2%) of the amount calculated
pursuant to Section 2.3(a) above;
plus
(c) 1.00 multiplied by the Unposted Accrued Finance Charges.
Section 2.4 Payment of the Purchase Price.
(a) At least five Business Days before the Cut-Off Date, Seller
shall forward to Purchaser the masterfile tape for that day.
Seller shall calculate the Purchase Price as of the Cut-Off Date
and prepare the Payment Statement, the form of which is attached
hereto and incorporated herein as Exhibit B . Seller shall
forward to Purchaser the Payment Statement and Seller's reports
verifying the figures used in the calculation of the Purchase
Price. Purchaser shall review the Payment Statement and confirm
the Purchase Price.
(b) Purchaser shall pay Seller the Purchase Price, on the
Payment Date by wire transfer of immediately available funds to
an account designated in writing by Seller no fewer than three
days prior to the Payment Date. Upon payment by the Purchaser of
the Purchase Price, Purchaser shall own all the Assets to Be Sold
as of the Cut-Off Date and Seller shall have no further income
participation or ownership interest in any of the Accounts.
Section 2.5 Adjustment of the Purchase Price; Dispute
Resolution.
(a) Sixty days after the Payment Date, the parties shall conduct
and complete a review of the Accounts and Related Receivables and
Seller will prepare an Adjustment Statement, a form of which is
attached hereto as Exhibit C and incorporated herein by
reference. The Adjustment Statement will adjust the Purchase
Price for any Excluded Accounts that were inadvertently included
in, or excluded from, the calculation of the Purchase Price set
forth on the Payment Statement. The Seller shall deliver the
Adjustment Statement to Purchaser along with FDR system reports,
a masterfile, and any Seller reports or documentation required to
support the Adjustment Statement.
(b) Purchaser will notify Seller in writing within fifteen
Business Days after receipt of the Adjustment Statement of any
disagreement with supporting documentation of such disputed item.
If there are no disputed items either of the following will
occur:
(i) if the adjusted Purchase Price on the Adjustment
Statement is less than the Purchase Price on the
Payment Statement, Seller shall pay to Purchaser the
Adjustment Payment, plus interest calculated at the
Federal Funds Rate from the Payment Date to the date
the Adjustment Payment is made; or
(ii) if the adjusted Purchase Price on the Adjustment
Statement is more than the Purchase Price on the
Payment Statement, Purchaser shall pay to Seller the
Adjustment Payment, plus interest calculated at the
Federal Funds Rate from the Payment Date to the date
the Adjustment Payment is made.
(c) Each party will use its best efforts to resolve any
disputes regarding the contents of the Adjustment Statement in
good faith. However, if Purchaser and Seller do not mutually
agree upon the correct amounts for all line items in the
Adjustment Statement within fifteen Business Days after Seller
has delivered the Adjustment Statement to Purchaser, the parties
shall
(i) pay to each other any undisputed amounts in the
Adjustment Statement that are owed, plus interest
calculated at the weighted Federal Funds Rate from the
Payment Date to the date the undisputed payments are
made; and
(ii) resolve any outstanding disputed line items in the
Adjustment Statement by resorting to the dispute
resolution procedures that are set forth in Section
2.5(d).
(d) The parties agree to attempt in good faith to resolve any
disputes arising in connection with the payments made by the
parties hereunder. In the event Purchaser and Seller are unable
to resolve any such dispute, then an independent, nationally
recognized firm of independent Accountants (the "Accountants")
mutually agreed upon by both parties shall be retained, to
determine the amounts of any valuations in dispute. Any such
request shall be in writing, shall specify with particularity the
disputed amounts being submitted for determination and shall
contain a direction to the Accountants to proceed with such
review as soon as practicable. The requesting party shall
furnish the other party hereto with a copy of such request at the
same time it is submitted to the Accountants. Purchaser and
Seller shall cooperate fully in assisting the Accountants in
their review, including, without limitation, by providing the
Accountants full access to all files, books and records relevant
thereto and providing such other information as the Accountants
may reasonably request in connection with any such review. One-
half of the fees and disbursements of such Accountants arising
out of such review shall be borne by each of Purchaser and
Seller; provided, that, Seller and Purchaser shall have agreed,
prior to the designation of the Accountants, on the maximum
amount of such fees and disbursements. In the event the
determination made by the Accountants indicates that a payment is
due from one party to the other, such party shall make such
payment no later than five Business Days following receipt from
the Accountants of written notice to both parties of such
determination, together with interest thereon at a per annum rate
equal to the Federal Funds Rate for the period from (and
including) the original due date thereof to (but not including)
the date of the payment thereof.
Section 2.6 Allocation Schedule. The Purchase Price shall
be allocated by the parties over the Assets To Be Sold in
accordance with the Allocation Schedule attached hereto as
Exhibit D ("Allocation Schedule"). The parties agree to take
any and all action necessary to amend the Allocation Schedule
based on any adjustment to the Purchase Price made pursuant to
Sections 2.5and 2.8. Each party agrees to reflect the
allocations set forth in the Allocation Schedule in their books
of record and in any filings required by the Internal Revenue
Code of 1986, as amended.
Section 2.7 Collections on the Accounts; Notice to
Cardholders.
(a) In any circumstance in which either party receives a payment
to which the other party is entitled, such receiving party shall
deliver the payment to the entitled party by overnight courier at
the addresses as specified in writing by the parties and, until
so delivered, such receiving party shall hold such payments in
trust for the benefit of the entitled party. The obligations set
forth in this Section 2.7(a) shall terminate six months after the
Conversion Date.
(b) Seller and Purchaser shall cooperate with each other in good
faith to enable Purchaser to prepare, print and mail a notice
notifying each Cardholder obligated on an Account of the purchase
of such Account by Purchaser and of such other matters which
Purchaser determines to be appropriate. The notice will be
mailed promptly upon the Closing but in no event later than
thirty days after the Closing. If Purchaser so chooses, Seller
shall also provide Purchaser with access to its periodic
statements in order that Purchaser may deliver such purchase
notifications, cardholder agreements or change in terms
notifications to Cardholders via statement inserts. All notices
shall be prepared solely by Purchaser, which notice(s) shall be
in a form approved by Seller prior to mailing, which approval
shall not be unreasonably withheld or delayed. Purchaser shall
bear the expenses of preparation, printing and mailing all such
notices.
Section 2.8 Repurchase Obligations of Seller. Seller shall
repurchase each Account and Related Receivable with respect to
which any warranty set forth in Sections 6.6, 6.7, 6.8, 6.9 and
6.12 herein was not true and correct in all material respects on
the Payment Date. Purchaser's request for a repurchase pursuant
to Sections 6.7, 6.8, 6.9 and 6.12 must be made in writing no
later than sixty days after the Conversion Date. Any request
made with respect to Section 6.6 may be made within one year
after the Closing Date. The repurchase price payable shall be
payable in immediately available funds at Purchaser's main office
and shall be equal to the lesser of the then outstanding balance
or the compensation paid by Purchaser under Section 2.3 herein
for said Account, together with interest thereon at the Federal
Funds Rate from the Payment Date to the date the repurchase price
is paid. Purchaser shall deliver to Seller all Account
Documentation of or relating to each Account repurchased
hereunder by Seller, execute and deliver such assignments and
other instruments reasonably required to evidence transfer and
assignment of such Accounts and Related Receivables to Seller and
take such other actions and cooperate with Seller in all respects
necessary or appropriate to effect an orderly and efficient
transfer of repurchased Accounts and Related Receivables to
Seller.
Section 2.9 Fees and Charges.
(a) Seller will be responsible for (i) all fees, charges and
other expenses related to the Accounts and periodic activity
thereon, including but not limited to the data processor's
charges and fees incurred through the Cut-Off Date and VISA and
MasterCard assessments and similar charges accrued with respect
to activities and periods prior to the Cut-Off Date, and (ii) all
Seller's expenses and costs incurred in connection with the sale
of the Accounts, including but not limited to, broker and sales
commissions.
(b) Purchaser will be responsible for (i) all data processing
conversion expenses incurred by Purchaser, at its direction,
applicable to conversion of computer Cardholder records relating
to Cardholder activity on the Accounts from the computer system
of Seller's data processor to Purchaser's data processor or any
other computer system designated by Purchaser, and (ii) all
Purchaser's expenses and costs incurred in connection with the
sale of the Accounts, including but not limited to, broker and
sales commissions.
ARTICLE III. COVENANTS OF SELLER
Section 3.1 Conduct of Business Pending Closing. During the
period between the date of this Agreement and the Closing, Seller
shall manage, operate and service the Assets to be Sold in
accordance with the usual and customary operating procedures
utilized by it in the management, operation and servicing of its
credit card accounts and related assets, including the Accounts.
During this same period, except with the prior written consent of
Purchaser or except as required by any Governing Organization or
applicable law, Seller shall not undertake or permit any of the
following:
(i) the amendment of any term of the Cardholder Agreement
applicable to the Accounts;
(ii) the transfer, pledge or assignment of Seller's right,
title or interest in the Accounts to any Affiliate thereof or to
any third party;
(iii) the disposal of any of the Accounts, or the Account
Documentation, other than in the ordinary course of business,
provided that Seller shall use reasonable efforts to ensure that
any of the Account Documentation scheduled to be destroyed from
and after the date hereof be retained and forwarded to Purchaser;
(iv) conducting any activities that would move the Accounts
to any BIN/system/PRIN/Agent combination outside of the existing
Portfolio structure as of the Cut-Off Date;
(v) the granting of a security interest in any of the Assets to
be Sold; or
(vi) the modification of any of its policies or procedures
(including, without limitation, its policies and procedures
applicable to collections, credit line adjustments, changes in
its delinquency accounting or reporting methods or its method of
assigning and releasing status codes) which would materially
affect the Accounts or the servicing thereof unless, and then to
the extent that, such modification is approved by Purchaser. The
term "modification" in clause (vi) of this Section 3.1 shall not
mean customary departures from collection procedures in the case
of individual collection efforts, unless the aggregate effect of
such departures would materially affect the Accounts as a whole.
Section 3.2 Information. Seller shall provide Purchaser and
its officers, accountants, counsel and other representatives full
but reasonable access during Seller's normal business hours
throughout the period prior to the Conversion Date to the Account
Documentation and such other properties, books, contracts,
customer records, commitments, records, policies and procedures,
and account management tools of Seller that relate to the
Accounts. Purchaser shall provide reasonable notice to Seller
prior to any visit to Seller's premises to review books and
records that relate to the Accounts. Purchaser shall be
responsible for all of its own expenses in connection with its
review of Seller's books and records. Seller shall furnish
Purchaser during such period with all such additional information
concerning the Assets to be Sold as Purchaser may reasonably
request, including, without limitation, the delivery by Seller to
Purchaser of the month-end master file data on the Accounts for
the period beginning August, 1998 through the Conversion Date.
Seller shall also provide Purchaser with the weekly masterfiles
and FDR reports such as CD 622 and CD 128, or the equivalent
thereof, so long as Purchaser bears all expenses for ordering
and receiving such reports. Without limiting the foregoing,
Purchaser shall be permitted from to time to time prior to the
Payment Date to inspect, review and audit all Account
Documentation; provided however, that Purchaser's inspection and
audit rights shall be conducted during normal business hours in a
manner which does not unreasonably interfere with Seller's normal
business operations, customer and employee relations. Seller
shall comply with its obligations under this Section 3.2 in a
manner and to the extent consistent with applicable law.
Section 3.3 Execution of Additional Documents. Seller shall
execute all documents that Purchaser may reasonably require to
evidence Purchaser's ownership of the Assets to be Sold,
including, without limitation, financing statements under the
Uniform Commercial Code. Seller shall take no action after the
Payment Date that would be inconsistent with the effective
transfer by Seller to Purchaser hereunder of Seller's entire
right, title and interest in and to the Assets to be Sold.
Section 3.4 Conversion. Seller shall cooperate with Purchaser
in arranging the Conversion and shall take such action as may
reasonably be necessary to enable the Conversion to be completed
by the Conversion Date or such other date as is mutually
agreeable to the parties. After the Conversion Date, Seller
shall provide Purchaser with reasonable assistance and support in
dealing with Conversion-related operational issues for a period
of not less than ninety days after the Conversion Date.
Section 3.5 Covenant Not to Compete.
(a) None of Seller or any of its Affiliates shall use the
Customer Base, including the customer list or any part thereof,
to solicit any Cardholder obligated on any Account for Visa,
MasterCard or any other general purpose credit card services, any
credit insurance products or any card enhancement fee-based
products and services until Seller deletes from its customer
information database all records of Cardholders contained within
the Portfolio. Seller will delete all Cardholder records from
its customer information database within 90 days after the
Conversion Date and deliver to Purchaser a certificate to that
effect. Seller may use names in the Customer Base to the extent
that such names become available to Seller from (i) a source
other than Purchaser and such source is not and was not bound by
a confidentiality agreement with Purchaser, or (ii) an extraction
from a general database not owned by Seller on the Cut-Off Date.
The foregoing shall not be construed to prohibit Seller from
advertising any of its products or services by television, radio,
newspapers, magazines and or other mass media.
(b) After the Cut-Off Date, none of Seller or any of its
Affiliates shall use, sell, rent or share the Customer Base,
including the customer list or any part thereof with any third
party.
Section 3.6 No Impairment. After the Payment Date, Seller
shall take no action to impair Purchaser's rights in the Accounts
or the related Cards or Cardholder Agreements or to prevent
Purchaser from collecting the balances owed on the Accounts.
Section 3.7 Limited Right to Use Marks and Forms. Seller
hereby grants Purchaser a limited, irrevocable, nonexclusive, non-
transferable license to use, from the Cut-Off Date to a date
which is sixty days after the Conversion Date, the name "PNC
National Bank" and variations thereof and such other names,
tradenames, and service marks as have been used by Seller prior
to the Cut-Off Date in connection with the Accounts and the Cards
(the "Credit Card Marks") solely for identification purposes, and
in any Conversion-related communication efforts with Cardholders.
Purchaser shall submit to certain of Seller's personnel,
specifically designated by Seller in writing, for approval, the
form of any communications to Cardholders in which Purchaser
proposes to use the names and Credit Card Marks covered by this
license. Seller's designated personnel shall have five Business
Days after receipt with which to review the proposed use of the
Credit Card Marks. Any failure to respond to Purchaser within
such five day period shall be deemed to be an approval of such
proposed use of the Credit Card Marks. Seller agrees it will not
unreasonably withhold approval of any proposed use of its Credit
Card Marks. The license granted to Purchaser under this Section
is not assignable by Purchaser, and Purchaser shall not
sublicense or authorize any other party to make use of the Credit
Card Marks without the prior written consent of Seller.
Section 3.8 Further Assurances. Prior to and after the
Payment Date to the Conversion Date, Seller shall (i) give such
further assurances to Purchaser, execute, acknowledge and deliver
all such acknowledgments and other instruments and take such
further action as reasonably requested by Purchaser as may be
necessary and appropriate to fully and effectively carry out the
transactions contemplated hereby, and to discharge Purchaser from
any obligations relating to the Assets to be Sold which were
incurred prior to the Cut-Off Date, and (ii) reasonably assist
Purchaser in the orderly transition of the operations and
servicing relating to the Assets to be Sold.
Section 3.9 Non-Retention of Data and Information. At the
Closing, Purchaser shall receive all of Seller's right, title and
interest in and to the Account Documentation. Seller shall at or
promptly after the Closing, give possession of and deliver to
Purchaser the Account Documentation, except for that Account
Documentation necessary for Seller to service the Accounts for
Purchaser under the Interim Servicing Agreement, and any Account
Documentation that is commingled on fiche with Seller's other
loan documents. In cases where Account Documentation is so
commingled, Seller shall provide copies of such Account
Documentation to Purchaser in accordance with the procedures
specified on Exhibit K. Seller may retain copies of such
documents (other than the Customer Base) which Seller considers
necessary for it to retain under applicable law, but subject to
the confidentiality and covenant not compete provisions of
Sections 5.1 and 3.5 of this Agreement.
Section 3.10 Change in Name, Identity, Corporate Structure and
Location. Until the Conversion Date, Seller shall provide
Purchaser thirty days notice prior to any change in Seller's
name, location of chief executive , or corporate identity where
such change may cause any financing statement filed by Purchaser
against Seller to be misleading or fail to perfect the transfer
of the Assets to be Sold to Purchaser. Seller agrees to supply
any UCC financing statements prior to any such change as
Purchaser may request.
ARTICLE IV. COVENANTS OF PURCHASER
Section 4.1 Further Assurances. On and after the Payment
Date, Purchaser shall give such further assurances to Seller and
shall execute, acknowledge and deliver all such acknowledgments
and other instruments and take such further action as may be
necessary and appropriate fully and effectively to relieve and
discharge Seller from any Assumed Liabilities.
Section 4.2 Issuance of New Credit Cards. Within sixty days
after the Conversion Date, Purchaser shall issue Credit Cards
bearing Purchaser's name to each Cardholder with an Account not
externally statused.
Section 4.3 Conversion. Purchaser shall cooperate with Seller
in arranging the Conversion. Purchaser or its designee shall be
fully responsible for managing the conversion process.
ARTICLE V. MUTUAL COVENANTS
Section 5.1 Mutual Covenants and Agreements. Seller and
Purchaser each covenant and agree that:
(a) Cooperation. Each shall cooperate fully with the other
party hereto in furnishing any information or performing any
action reasonably requested by that party, which information or
action is necessary to the speedy and successful consummation of
the transactions contemplated by this Agreement.
(b) Confidentiality. All information furnished by one party,
including any Affiliate or agent thereof (the "Protected Party")
to the other party in connection with this Agreement and the
transactions contemplated hereby (including this Agreement) shall
be kept confidential by such other party, and shall be used by it
only in connection with this Agreement and the transactions
contemplated hereby, except to the extent that such information
(i) at the time of disclosure or thereafter, is generally
available to and known by the public (other than as a result of a
disclosure directly or indirectly by such other party), (ii) was
available to such other party on a nonconfidential basis from a
source other than the Protected Party or its advisers, provided
that such source, to the best of such other party's knowledge, is
not and was not bound by a confidentiality agreement with the
Protected Party, (iii) has been independently acquired or
developed by such other party without violating any of such other
party's obligations under this Agreement, (iv) is required to be
disclosed in the financial statements of such other party or its
Affiliates, to the extent required by applicable generally
accepted accounting principles, or in any filing with the
Securities and Exchange Commission, (v) is required to be
disclosed to a Governing Organization or to a regulatory
authority having authority over such other party, (vi) is
required to be disclosed to its Affiliates, auditors, counsel,
agents, lenders, or other providers of funding(including
investors) provided that such Affiliates, auditors, counsel,
agents, lenders, or other providers of funding(including
investors) agree to be bound by the provisions of this Section
5.1(b), (vii) is required to be disclosed to any rating agency,
or (viii) is required by law, regulation or court order to be
disclosed by such other party, provided that prior notice of such
disclosure has been given to the Protected Party, when legally
permissible, and that such party which is required to make the
disclosure uses its best efforts to provide sufficient notice to
permit the Protected Party to take legal action to prevent the
disclosure. This Section 5.1(b) shall survive any termination of
this Agreement for a period of thirty-six months.
(c) Coordination of Public Statements. Except as may be
required by law or regulation or a court or regulatory authority,
neither Seller nor Purchaser, nor any of their respective
Affiliates, shall, either prior to or after the Payment Date,
issue a press release or make any public announcement related to
the transactions contemplated hereby (except as permitted by
Section 2.7(b) and by Section 5.1(b)) without the prior written
consent of the other party hereto, which consent shall not be
unreasonably withheld or delayed. Any determination by either
party that this is a material contract once executed to be
attached to any report filed by such party with the Securities
and Exchange Commission shall be final and not subject to
question by the other party. This Section 5.1(c) shall survive
any termination of this Agreement.
(d) Miscellaneous Agreements and Consents. Subject to the terms
and conditions herein provided, each party to this Agreement
shall use its best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things, necessary,
appropriate or desirable hereunder and under applicable laws and
regulations to consummate and make effective the transactions
contemplated by this Agreement. Each party to this Agreement
will use its best efforts to obtain consents of all third parties
and governmental bodies necessary for the consummation of the
transactions contemplated by this Agreement, if any. The parties
shall use their best efforts to take such further actions
subsequent to the Payment Date as are reasonably necessary,
appropriate or desirable to carry out the purposes of this
Agreement.
(e) Advice of Material Changes. Between the date hereof and the
Payment Date, each party hereto shall promptly advise the other
in writing of any fact which, if existing or known at the date
hereof, would have been required to be set forth or disclosed in,
or pursuant to, this Agreement or of any fact which, if existing
or known at the date hereof, would have made any of the
representations contained herein untrue in any material respect.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
Section 6.1 Organization and Good Standing. Seller is a
national banking association duly organized, validly existing and
in good standing under the laws of the United States of America.
Seller has the corporate power and authority to conduct its
banking business under such laws.
Section 6.2 Authority and Due Authorization. Seller has the
requisite corporate power and authority to enter into, deliver
and perform this Agreement and to perform all of its obligations
hereunder. All necessary corporate action to authorize the
execution and delivery of this Agreement by Seller has been duly
taken by Seller.
Section 6.3 Binding Obligation. This Agreement constitutes
the legal, valid and binding obligation of Seller enforceable
against Seller in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, conservatorship,
moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' or obligees' rights in
general or the rights of creditors or obligees of a national
bank, the deposits of which are insured by the Federal Deposit
Insurance Corporation, and except as such enforceability may be
limited by general principles of equity (whether considered in a
suit at law or in equity).
Section 6.4 No Conflict. The execution and delivery of this
Agreement by Seller, the performance of the transactions
contemplated hereby and the fulfillment of the terms hereof
applicable to Seller (i) will not conflict with or violate the
charter or bylaws of Seller, (ii) will not conflict in any
material respect with or violate in any material respect any
material indenture, contract, agreement, mortgage, deed of trust
or other instrument to which Seller is a party or by which it is
bound, (iii) to the best of Seller's knowledge, will not conflict
with or violate any law, rule, regulation, order, judgment or
decree applicable to or binding on Seller, and (iv) will not
result in the creation of any material lien, charge or
encumbrance upon any of the properties or assets of Seller,
except for any lien or encumbrance in favor of Purchaser which is
created by this Agreement. Seller is not subject to any
agreement with any regulatory authority which would prevent the
consummation by Seller of the transactions contemplated hereby.
No conservator or receiver has been appointed for Seller or any
of its assets and no proceeding for such appointment has been
instituted or, to Seller's knowledge, is being considered by any
regulatory authority.
Section 6.5 Consents. No consent of any person and no
consent, license, permit, approval or authorization of, exemption
by, notice or report to, or registration, filing or declaration
with, any governmental authority is required to be obtained or
made by Seller in connection with the execution, delivery or
performance of this Agreement by Seller, the validity or
enforceability of this Agreement against Seller, or the
consummation of the transactions contemplated hereby.
Section 6.6 Title to Accounts; Absence of Liens and
Encumbrances; Further Assurances. As of the Payment Date, Seller
will be the sole owner of and have good title to the Assets to be
Sold free and clear of all security interests, pledges, liens or
other encumbrances or adverse claims of any kind or character,
other than the liens of any attorney in connection with any
Account that has been referred for collection. The Assignment,
when executed and delivered to Purchaser in accordance with the
terms of this Agreement, shall (i) vest in Purchaser all of the
right, title and interest of Seller in and to the Assets to be
Sold, free and clear of any security interest, pledge, lien or
other encumbrance other than the liens of any attorney in
connection with any Account that has been referred for
collection, and (ii) constitute a valid assignment of Seller's
interest in the Assets to be Sold enforceable, upon the filing of
all appropriate Uniform Commercial Code financing statements,
against all other persons.
Section 6.7 Litigation, etc. There is no material litigation
or any other proceeding or any investigation pending or, to
Seller's knowledge, threatened against Seller with respect to the
Assets to be Sold or any of them. Without limiting the
foregoing, there are no suits, actions, claims, counterclaims or
defenses pending or filed against Seller in any court alleging
any violation of any law, rule or regulation applicable to any
Asset to be Sold. There is no litigation or any other proceeding
pending, or to the Seller's knowledge, threatened, against Seller
that is intended to or is reasonably likely to prevent
consummation of the Sale Transaction.
Section 6.8 Account and Customer Base Data. Data and
information provided to Purchaser by Seller regarding the Account
used by Purchaser in determining the Purchase Price of the
Accounts accurately reflects the Related Receivables of the
Accounts as of the date of such information, subject to possible
immaterial inaccuracies, and that the classification of the
Related Receivables of Accounts as of the Cut-Off Date as
provided by Seller to Purchaser is accurate, subject to possible
immaterial inaccuracies. All Accounts have been originated by or
purchased by Seller substantially in accordance with its credit
review and acceptance criteria and any deviations therefrom are
immaterial. The Cardholder Agreements accurately reflect the
method Seller uses to calculate and impose charges, collect fees
and payments and generally to process and service the Accounts.
Except as set forth in such Cardholder Agreements, Seller has
made no promise, agreement or commitment to any Cardholder in
connection with the Accounts, except in the ordinary course of
business in connection with Seller's established collection
practices and customer policies, which individually and in the
aggregate would not have a material adverse effect on the value
of the Accounts or the Related Receivables.
Section 6.9 Marketing Agreements. Except as listed on
Exhibit E, there are no contracts, agreements, licenses, or
binding commitments to which Seller is a party or by which Seller
or any of its assets are bound or obligated which relate to the
marketing of any product or service to the Cardholders obligated
on any Account included in the Accounts or which relate to the
Accounts in any way.
Section 6.10 Investment Bankers, Finders or Brokers. Seller
has procured the services of an investment banker, agent, broker,
finder or other person in connection with this Agreement and the
Sale Transaction. In no event will Purchaser be liable for the
fees or expenses of any such person retained by Seller.
Section 6.11 Governmental Notices. Seller has not received
notice from any federal or state governmental agency indicating
that such agency would oppose or not grant or issue its consent
or approval, if required, with respect to the transactions
contemplated hereby.
Section 6.12 Compliance with Laws. To the best of Seller's
knowledge, the terms of the Accounts, and of the Account
Documentation, and the manner in which the Accounts have been
administered and serviced, comply in all material respects with
all material federal, state or local laws, rules, regulations or
ordinances applicable thereto, including, without limitation, the
Federal Truth-in-Lending Act, Regulation Z, the Equal Credit
Opportunity Act, the Fair Debt Collection Practices Act and
applicable state laws, rules and regulations relating to consumer
protection, installment sales and usury. To the best of Seller's
knowledge, each Cardholder Agreement and the Related Receivable
is the legal, valid and binding obligation of the Cardholder and
any guarantor named therein and is enforceable in accordance with
its terms except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by
general equity principles and, except for the rights of
Cardholders under Section 226.12 (b) and (c) and Section 226.13
of Regulation Z, to the best of Seller's knowledge each of the
Related Receivables arises from a bona fide sale or loan
transaction; except for the reason that payment on certain
Related Receivables is overdue, Seller has no reason to believe
that any specific Related Receivable is not collectible in the
ordinary course of business except for Excluded Accounts and
Accounts which are Charged-Off, Bankrupt, Fraud, Lost, Stolen,
and Deceased after the Cut-Off Date; all applications for the
Accounts have been taken and evaluated and applicants notified in
a manner which is in compliance with all provisions of the Equal
Credit Opportunity Act and its implementing regulation, as
amended, in all material respects; and all disclosures made in
connection with the Accounts to be sold are and have been in
compliance with the provisions of the Consumer Credit Protection
Act and Regulation Z in all material respects.
Section 6.13 Conversion. Seller has the capability of
effecting an orderly and efficient Conversion by no later than
the Conversion Date, or such other later date as is mutually
agreed upon by the parties to this Agreement; provided however,
that in the event that FDR can not meet the Conversion Date
agreed upon by the parties, the parties shall agree upon a
subsequent date for the Conversion that is feasible for FDR and
no breach of this Agreement shall be deemed to have occurred.
Section 6.14 Full Disclosure. Copies of all documents which
have been delivered or made available to Purchaser by Seller for
inspection at due diligence pursuant hereto are true and complete
copies thereof and include all amendments, supplements or
modifications thereto or waivers thereunder.
Section 6.15 Sale in the Ordinary Course. The sale of the
Assets to be Sold is in the ordinary course of Seller's business
and will not result in the Seller exiting any geographic market.
ARTICLE VII. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
Section 7.1 Organization and Good Standing. Purchaser is a
national banking association organized, validly existing and in
good standing under the laws of the United States of America
and has the corporate power and authority necessary to conduct
its banking business under such laws.
Section 7.2 Authority and Due Authorization. The Purchaser
has the requisite corporate power and authority to enter into,
deliver and perform this Agreement and to perform all of its
obligations hereunder. All necessary corporate action to
authorize the execution, delivery and performance of this
Agreement by Purchaser has been duly taken by Purchaser.
Section 7.3 Binding Obligation. This Agreement constitutes
the legal, valid and binding obligation of Purchaser enforceable
against Purchaser in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, conservatorship,
moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' or obligees' rights in
general or the rights of creditors or obligees of banks, the
deposits of which are insured by the Federal Deposit Insurance
Corporation, and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law
or in equity).
Section 7.4 No Conflict. The execution and delivery of this
Agreement by Purchaser, the performance of the transactions
contemplated hereby and the fulfillment of the terms hereof
applicable to Purchaser (i) will not conflict with or violate the
charter or bylaws of Purchaser, (ii) will not conflict in any
material respect with or violate in any material respect any
material indenture, contract, agreement, mortgage, deed of trust
or other instrument to which Purchaser is a party or by which it
is bound, and (iii) will not conflict with or violate any law,
rule, regulation, order, judgment or decree applicable to or
binding on Purchaser. Purchaser is not subject to any agreement
with any regulatory authority which would prevent consummation by
Purchaser of the transactions contemplated hereby. No
conservator or receiver has been appointed for Purchaser or any
of its assets and no proceeding for such appointment has been
instituted or, to the Purchaser's knowledge, is being considered
by any regulatory authority.
Section 7.5 Consents. No consent of any person and no
consent, license, permit, approval or authorization of, exemption
by, notice or report to, or registration, filing or declaration
with, any governmental authority is required to be obtained or
made by Purchaser in connection with the execution, delivery or
performance of this Agreement by Purchaser, the validity or
enforceability of this Agreement against Purchaser, or the
consummation of the transactions contemplated hereby or thereby.
Purchaser makes this representation in reliance upon Seller's
representations in Section 6.15.
Section 7.6 Investment Bankers, Finders or Brokers. Purchaser
has retained the services of a broker in connection with this
Agreement or the Sale Transaction. In no event will Seller be
liable for the fees or expenses of any such person retained by
Purchaser.
Section 7.7 Governmental Notices. Purchaser has not received
notice from any federal or state governmental agency indicating
that such agency would oppose or not grant or issue its consent
or approval, if required, with respect to the Sale Transaction.
Section 7.8 Litigation. There is no litigation or any other
proceeding pending or, to the Purchaser's knowledge threatened,
against Purchaser that is intended to or is reasonably likely to
prevent consummation of the Sale Transaction.
Section 7.9 Conversion. Purchaser has the capability of
effecting an orderly and efficient Conversion by no later than
the Conversion Date, or such other later date as is mutually
agreed upon by the parties to this Agreement; provided however,
that in the event that FDR can not meet the Conversion Date
agreed upon by the parties, the parties shall agree upon a
subsequent date for the Conversion that is feasible for FDR and
no breach of this Agreement shall be deemed to have occurred.
ARTICLE VIII. CONDITIONS PRECEDENT TO CLOSING
The obligations of Purchaser and Seller under this
Agreement are subject to fulfillment of the following conditions
precedent at or prior to the Payment Date, each of which is
hereby individually deemed material, and any one or more of which
may be waived in writing by the Purchaser or Seller, as the case
may be.
Section 8.1 Approvals. All licenses, approvals, consents and
notifications of or to any relevant state and federal regulatory
agencies required of Seller or Purchaser in respect of the Sale
Transaction, if any, shall have been obtained or made, and all
necessary conditions to consummation of the Sale Transaction,
including all legally required waiting, notice or protest periods
of such licenses, approvals, consents and notifications, shall
have been fully satisfied by Seller or Purchaser, as the case may
be. All board approvals and any approvals required pursuant to
any material contract shall have been obtained.
Section 8.2 Representations, Warranties and Covenants. The
representations and warranties of Seller or Purchaser, as the
case may be, herein contained shall be true in all material
respects as of the Payment Date and Seller or Purchaser, as the
case may be, shall have performed all obligations and complied
with all covenants in all material respects required by this
Agreement to be performed or complied with by it on or prior to
the Payment Date.
Section 8.3 No Adverse Proceedings. No action or proceeding
against Purchaser or Seller or the consummation of the Sale
Transaction shall have been instituted or threatened, and no
order of any court shall have been entered, which Purchaser or
Seller, as the case may be, reasonably determines (after
consultation with its counsel) would (i) prohibit, materially
restrict or otherwise materially adversely affect the
consummation of the Sale Transaction, (ii) result in a material
amount of damages to Purchaser or Seller, as the case may be, or
any of their respective Affiliates if the Sale Transaction were
consummated, or (iii) have a material adverse effect on the
Assets to be Sold or on Purchaser or Seller, as the case may be,
if the Sale Transaction were consummated. No conservator or
receiver shall have been appointed for Purchaser or Seller, as
the case may be, or any of their respective assets and no
proceedings for such appointment shall have been instituted or,
to either party's knowledge, shall be under consideration by any
regulatory authority.
Section 8.4 Consents and Requisite Authority.
(a) All requisite consents, undertakings and agreements of any
third parties required to be obtained by Seller or Purchaser, as
the case may be, shall have been obtained or waived by such third
parties.
(b) Seller and Purchaser each acknowledges that it has, on the
date hereof, all necessary requisite corporate authority to enter
into and perform this Agreement to which it or its Affiliates is
a party, that it has all the necessary requisite approval to
consummate the transactions contemplated hereunder and such
conditions precedent are satisfied.
Section 8.5 Acquisition Lawful. The acquisition of the Assets
to be Sold shall not violate any applicable statute, rule or
regulation in effect on the Payment Date.
Section 8.6 Items to be Delivered by Seller. Seller shall
have delivered to Purchaser on or prior to the Payment Date (or,
with respect to the item specified in paragraph (a), no later
than the Business Day immediately following the Payment Date),
all in form and substance reasonably satisfactory to Purchaser,
the following items:
(a) a list of the Accounts, in both "hard" copy and computer
tape form containing, with respect to each Account, the Account
number and such additional available information as Purchaser may
reasonably require to verify all pertinent information regarding
the Accounts;
(b) a copy of the Assignment, duly executed by Seller;
(c) Uniform Commercial Code financing statements, duly executed
by Seller;
(d) such other documents as may be required by Purchaser in
order to assist Purchaser in procuring funding for the purchase
of the Portfolio;
(e) an opinion of counsel for Seller, dated the Payment Date,
substantially in the form of Exhibit F;
(f) a certificate of an officer of Seller certifying that (i)
the warranties and representations of Seller in Article VI are
true in all material respects as of the Payment Date or, if any
such warranties and representations are not then true, but have
been waived by Purchaser, specifying the deficiency and waiver in
reasonable detail; and (ii) the obligations and covenants of
Seller to be performed and the conditions precedent to be
complied with hereunder by Seller on or prior to the Payment Date
have been performed and complied with in all material respects,
or, if any such covenants or agreements have not been performed
or conditions precedent complied with, but have been waived by
Purchaser, specifying the deficiency and waiver in reasonable
detail;
(g) resolutions of Seller's Board of Directors, certified by its
Secretary or an Assistant Secretary, authorizing the execution
and delivery of this Agreement and the consummation of the Sale
Transaction, together with certificates of incumbency for, and
true signatures of, the officers of Seller authorized by such
consent to execute this Agreement and the Assignment on behalf of
Seller;
(h) a list of all of the Cardholder Agreements for the Accounts
in the Portfolio and the applicable travel program terms and
conditions attached as Exhibit H, which reflect the Cardholder
Agreements and travel program terms and conditions previously
provided to Purchaser by Seller; and
(i) a copy of the Interim Servicing Agreement, duly executed by
Seller.
Section 8.7 Items to be Delivered by Purchaser. Purchaser
shall pay and deliver to Seller on or prior to the Payment Date,
all in form and substance reasonably satisfactory to Seller, the
following items.
(a) the Purchase Price;
(b) resolutions of the Board of Directors of the Purchaser,
certified by its Secretary or Assistant Secretary, authorizing
the execution and delivery of this Agreement and the consummation
of the Sale Transaction, together with certificates of incumbency
for, and true signatures of, the officers of Purchaser authorized
by such resolutions to execute this Agreement on behalf of such
Purchaser;
(c) a certificate signed by a duly authorized officer of
Purchaser certifying that (i) the warranties and representations
of Purchaser in Article VII are true in all material respects as
of the Payment Date or, if any such warranties and
representations are not then true, but have been waived by
Seller, specifying the deficiency and waiver in reasonable
detail; and (ii) the obligations and covenants of Purchaser to be
performed and the conditions precedent to be complied with
hereunder on or prior to Payment Date have been performed and
complied with in all material respects, or, if any such covenants
or agreements have not been performed or conditions precedent
complied with and have been waived by Seller, specifying the
deficiency and waiver in reasonable detail;
(d) an opinion of counsel to Purchaser, dated the Payment
Date, substantially in the form of Exhibit G;
(e) a copy of the Interim Servicing Agreement, duly
executed by Purchaser; and
(f) a copy of the Allocation Schedule, duly executed by Seller
and Purchaser;
Section 8.8 No Material Adverse Change. Purchaser and
Seller agree that the Portfolio will likely decrease in total
outstanding balances from July 26, 1998 through the Cut-Off Date
and the financial performance of the Portfolio will likely change
due to the high percentage of introductory interest rates in the
Portfolio. Due to the seasoning/vintage of the Portfolio, it is
expected that delinquency rates and losses (charge-offs) on this
Portfolio will increase. The Seller agrees to perform portfolio
management practices on the Portfolio consistent with its
retained portfolio. In no event will the likely negative trends
in the Portfolio constitute a material adverse change for
purposes of this Agreement.
ARTICLE IX. INDEMNIFICATION
Section 9.1 Indemnification by Seller. Seller shall
indemnify, defend and hold harmless Purchaser, its Affiliates and
their respective agents and employees from and against any third
party claim, demand, proceeding and suit, and from every
liability, damage, cost, charge, expense (including reasonable
attorneys' fees) and loss (each such amount referred to in this
Article IX as a "Loss") arising out of or resulting from (i) any
breach of this Agreement by Seller, (ii) any breach by Seller of
any representation or warranty of Seller contained in this
Agreement, and (iii) any act or omission after the Cut-Off Date
by Seller, its agents (other than Purchaser) or employees with
respect to any Assets to be Sold which results in a Loss to
Purchaser; provided, that Seller shall not be required to
indemnify Purchaser, its Affiliates and their respective agents
and employees against a Loss to the extent such Loss arises from
or relates to the negligence, gross negligence or willful
misconduct of Purchaser, or its Affiliates. Except for breach of
Section 6.6, the obligation of Seller to indemnify Purchaser
under this Section 9.1 shall not apply to Losses incurred more
than two years after the Conversion Date, except with respect to
Claims as to which Purchaser has notified Seller prior to the
expiration of such two-year period. Seller shall remain liable
for any Losses arising from a breach of the representation in
Section 6.6 for as long as any applicable statute of limitations
shall permit. The provisions of this Section 9.1 shall survive
the termination of this Agreement.
Section 9.2 Indemnification by Purchaser. Purchaser shall
indemnify, defend and hold harmless Seller, its Affiliates and
their respective agents and employees from and against any third
party Loss arising out of or resulting from (i) any breach of
this Agreement by Purchaser, (ii) any breach by Purchaser of any
representation or warranty of Purchaser contained in this
Agreement and (iii) any act or omission after the Cut-Off Date by
Purchaser, its agents (other than Seller) or employees with
respect to any Assets to be Sold which results in a Loss to
Seller; provided, that Purchaser shall not be required to
indemnify Seller, its Affiliates and their respective agents and
employees against a Loss to the extent such Loss arises from or
relates to the negligence, gross negligence or willful misconduct
of Seller, or its Affiliates. The obligation of Purchaser to
indemnify Seller under this Section 9.2 shall not apply to Losses
incurred more than two years after the Conversion Date, except
with respect to Claims as to which Seller has notified Purchaser
prior to the expiration of such two-year period. The provisions
of this Section 9.2 shall survive the termination of this
Agreement.
Section 9.3 Notice; Defense of Claims. A party seeking
indemnification pursuant to this Agreement (the "Indemnified
Party") shall give prompt written notice to the party from whom
such indemnification is sought (the "Indemnifying Party") of each
claim (a "Claim") that, in the opinion of the Indemnified Party,
is likely to give rise to a right of indemnification under this
Agreement; provided, however, that failure to give such notice of
a Claim shall not affect the obligations of the Indemnifying
Party under this Article IX except to the extent of the
Indemnifying Party's demonstrated actual damage caused by such
failure. Such notice shall describe the Claim in reasonable
detail and shall indicate the amount (estimated, if necessary) of
the Loss that has been or may be suffered by the Indemnified
Party. Provided prompt notice is given, the Indemnifying Party
shall promptly, at its own expense, defend, contest, or
otherwise protect the Indemnified Party against such Claim, using
counsel of its own choosing, which shall be reasonably
satisfactory to the Indemnified Party. After notice from the
Indemnifying Party to the Indemnified Party of assumption of the
defense, conduct or settlement of the Claim, the Indemnifying
Party shall not be liable to the Indemnified Party for any legal
or other expenses subsequently incurred by the Indemnified Party
in connection with the defense, conduct or settlement of such
Claim. The Indemnified Party shall cooperate with the
Indemnifying Party in connection with any such Claim, make
personnel and books and records (to the extent not inconsistent
with any applicable privilege) relevant to the Claim available to
the Indemnifying Party, and grant such authorizations or powers
of attorney to the agents, representatives and counsel of the
Indemnifying Party as such Indemnifying Party may reasonably
consider desirable in connection with the defense of any such
Claim. The Indemnifying Party shall inform the Indemnified Party
on a regular basis of the status of such third party Claim and
the Indemnifying Party's defense thereof. In the event that the
Indemnifying Party does not assume the defense, conduct or
settlement of a Claim, the Indemnified Party shall not settle any
such Claim for an amount in excess of $500. without the consent
of the Indemnifying Party, which consent shall not be
unreasonably withheld. The Indemnified Party shall use its
reasonable best efforts consistent with sound business practice
to defend any Claim and to mitigate the Losses giving rise to any
claim for indemnification hereunder. Amounts owing under this
Article IX shall be paid promptly upon written demand thereof
which demand shall reasonably detail the basis therefor.
ARTICLE X. TERMINATION
Section 10.1 Termination. This Agreement shall terminate prior
to the Closing and shall be of no further force or effect (other
than those provisions that expressly are to survive termination,
including without limitation, the provisions of this Article X):
(i) upon mutual agreement of the parties;
(ii) upon notice given by either party to the other
party in the event a law, regulation or judicial decree
prohibits the Sale Transaction; or
(iii) upon notice given by either party to the
other party in the event that any representation or
warranty made by the other party herein was incorrect
in any material respect when made, or that such other
party has failed to perform any covenant contained
herein in any material respect and such inaccuracy or
failure has not been waived by the non-breaching party
and such failure has continued for sixty days following
notice of such failure.
Section 10.2 Other Remedies. Notwithstanding any termination
of this Agreement under Section 10.1, each party shall retain all
rights and remedies against the other party provided by law for
any material breach of this Agreement.
Section 10.3 Remedies. If this Agreement is terminated pursuant
to Section 10.1 solely because of a party's failure to obtain any
regulatory approval or consent referred to in Sections 6.5, 7.5,
8.1, and 8.4 the applicable party shall reimburse the other party
for all of such other party's reasonable out-of-pocket expenses,
including reasonable attorneys' fees, incurred in connection with
the negotiation of this Agreement and the transactions
contemplated hereby.
ARTICLE XI. MISCELLANEOUS
Section 11.1 Notices. All notices, demands and other
communications hereunder shall be in writing and shall be deemed
to have been duly given if delivered in person (including
delivery by overnight courier) or sent by United States mail,
return receipt requested, or facsimile transmission addressed as
follows:
(i)If to Purchaser, to: Xxxxxx X. Xxxxxx
Chief Executive Officer
Direct Merchants Credit Card Bank,
National Association
0000 Xxxx Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
With Copy to: Z. Xxxx Xxxxxxxx
Vice President, General Counsel
000 Xxxxx Xxxxxxx 000, Xxxxx 0000
Xx. Xxxxx Xxxx, XX 00000
FAX: (000) 000-0000
(ii)If to Seller, to: PNC National Bank
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attn.: President
With Copy to: PNC Bank Corp.
One PNC Plaza, 21st Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn.: Consumer Bank General
Counsel
Such persons, addresses or telecopier numbers may be changed from
time to time by notice given pursuant to the provisions of this
Section 11.1. Any notice, demand or other communication given
pursuant to the provisions of this Section 11.1 shall be deemed
to have been given on the date actually delivered by hand,
certified mail, or facsimile.
Section 11.2 Successors and Assigns. All terms and provisions
of this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective transferees,
successors and assigns; provided, however, that this Agreement
and rights, privileges, duties and obligations of the parties to
one another herein may not be assigned or delegated by either
party without the written consent of the other party except that
Seller may assign its rights, privileges, and duties, but not its
obligations under this Agreement, this Agreement itself or its
ownership of Accounts being sold under this Agreement, to an
Affiliate without the consent of Purchaser and provided, that as
owner of the Assets to be Sold after the Closing, Purchaser may
transfer the Assets to be Sold to any person.
Section 11.3 Governing Law. THE LAWS OF THE STATE OF DELAWARE
SHALL GOVERN THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT
AND THE PERFORMANCE OF THE PARTIES HERETO OF THEIR RESPECTIVE
DUTIES AND OBLIGATIONS HEREUNDER.
Section 11.4 Captions. All captions and headings contained in
this Agreement are for convenience of reference only and do not
form a part of this Agreement.
Section 11.5 Entire Agreement; Amendments. The making,
execution and delivery of this Agreement by the parties hereto
have been induced by no representations, statements, warranties
or agreements other than those expressed or incorporated herein.
This Agreement (including the Exhibits) and documents delivered
pursuant hereto embody the entire agreement of the parties with
respect to the subject matter hereof, and supersede all prior
representations, warranties, offers, acceptances, agreements and
understandings, written or oral, relating to the subject matter.
This Agreement may be amended or modified or any provision
thereof may be waived only by a written instrument signed by both
parties or their duly respective authorized agents.
Section 11.6 Severability. Whenever possible, each provision
of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of
this Agreement is held to be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating
the remainder of such provision or the remaining provisions of
this Agreement.
Section 11.7 No Third Party Beneficiary. The parties
expressly agree that this Agreement does not create nor shall it
be construed to create any rights enforceable by a party not a
party to this Agreement other than rights enforceable by
Affiliates of the same afforded to such Affiliates by the terms
of this Agreement.
Section 11.8 Counterparts. This Agreement may be executed
separately by Seller and Purchaser in any number of counterparts,
each of which when executed and delivered shall be an original,
but such counterparts shall together constitute one and the same
instrument.
Section 11.9 Rule of Construction. Seller, Purchaser, and their
respective counsel all participated fully in the negotiation and
preparation of this Agreement. Each party agrees that any rule
of construction that provides that an ambiguity in a document
shall be interpreted against the drafter thereof shall not be
employed in any dispute or litigation.
Section 11.10 Expenses. Except as otherwise specifically
provided for in this Agreement, or in the Interim Servicing
Agreement, each party shall pay their own costs and expenses in
connection with this Agreement, including but not limited to,
attorney's fee, accounting fees, any regulatory fees, and other
expenses.
Section 11.11 Waiver of Jury Trial. In any litigation in
which the parties are adverse, the parties agree to waive their
respective right to a trial by jury.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the day and year first above
written.
Seller:
PNC NATIONAL BANK
By:
Title:
Purchaser:
DIRECT MERCHANTS CREDIT CARD BANK,
NATIONAL ASSOCIATION
By:
Title: Chief Executive Officer
