1
Exhibit 10.21
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CLASS B CERTIFICATE PURCHASE AGREEMENT
Dated as of January 22, 1997
among
PRIME II RECEIVABLES CORPORATION,
as Transferor,
FDS NATIONAL BANK,
as Servicer,
THE CLASS B PURCHASERS PARTIES HERETO,
and
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH,
as Agent and Administrative Agent
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TABLE OF CONTENTS
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Page
SECTION ...................................................................... 1
SECTION 1. DEFINITIONS....................................................... 1
1.1 Definitions......................................................... 1
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.................................. 10
2.1 Purchases.......................................................... 10
2.2 Reductions and Increases of Commitments............................ 13
2.3 Fees, Expenses, Payments, Etc...................................... 14
2.4 Requirements of Law................................................ 15
2.5 Taxes.............................................................. 17
2.6 Non-recourse....................................................... 19
2.7 Indemnification.................................................... 20
2.8 Termination Events.................................................. 21
SECTION 3. CONDITIONS PRECEDENT............................................. 23
3.1 Condition to Initial Purchase...................................... 23
3.2 Condition to Additional Purchase................................... 24
SECTION 4. REPRESENTATIONS AND WARRANTIES................................... 25
4.1 Representations and Warranties of the Transferor................... 25
4.2 Representations and Warranties of FDSNB............................ 27
4.3 Representations and Warranties of the Agent and the
Class B Purchasers................................................28
SECTION 5. COVENANTS........................................................ 29
5.1 Covenants of the Transferor and FDSNB.............................. 29
SECTION 6. MUTUAL COVENANTS REGARDING CONFIDENTIALITY....................... 32
6.1 Covenants of Transferor, Etc....................................... 32
6.2 Covenants of Class B Purchasers.................................... 32
SECTION 7. THE AGENTS....................................................... 33
7.1 Appointment........................................................ 33
7.2 Delegation of Duties............................................... 33
7.3 Exculpatory Provisions............................................. 33
7.4 Reliance by Agent.................................................. 34
7.5 Notices............................................................ 34
7.6 Non-Reliance on Agent and Other Class B Purchasers................. 34
7.7 Indemnification.................................................... 35
7.8 Agents in Their Individual Capacities.............................. 35
7.9 Successor Agent.................................................... 36
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SECTION 8. SECURITIES LAWS; TRANSFERS; TAX TREATMENT........................ 36
8.1 Transfers of Class B Certificates.................................. 36
8.2 Tax Characterization of the Class B Certificates................... 41
SECTION 9. MISCELLANEOUS.................................................... 41
9.1 Amendments and Waivers............................................. 41
9.2 Notices............................................................ 42
9.3 No Waiver; Cumulative Remedies..................................... 44
9.4 Successors and Assigns............................................. 44
9.5 Successors to Servicer............................................. 44
9.6 Counterparts....................................................... 45
9.7 Severability....................................................... 46
9.8 Integration........................................................ 46
9.9 Governing Law...................................................... 46
9.10 Termination....................................................... 46
9.11 Action by Servicer................................................ 46
9.12 Limited Recourse; No Proceedings.................................. 46
9.13 Survival of Representations and Warranties........................ 47
9.14 Submission to Jurisdiction; Waivers............................... 47
9.15 WAIVERS OF JURY TRIAL............................................. 48
LIST OF EXHIBITS
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EXHIBIT A......... Form of Investment Letter
EXHIBIT B......... Form of Joinder Supplement
EXHIBIT C......... Form of Transfer Supplement
(ii)
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CLASS B CERTIFICATE PURCHASE AGREEMENT, dated as of January
22, 1997, by and among PRIME II RECEIVABLES CORPORATION, a Delaware corporation
("PRIME II RECEIVABLES CORPORATION"), as Transferor (the "TRANSFEROR"), FDS
NATIONAL BANK, a national banking association ("FDSNB"), as Servicer (the
"SERVICER"), the CLASS B PURCHASERS from time to time parties hereto and CREDIT
SUISSE FIRST BOSTON, a Swiss banking corporation acting through its New York
Branch, as Agent for the Class B Purchasers (in such capacity, the "AGENT") and
as Administrative Agent for the Class B Purchasers and the Class A Purchasers
(in such capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H:
WHEREAS, Prime II Receivables Corporation, as Transferor,
FDSNB, as Servicer, and the Trustee are parties to a certain Pooling and
Servicing Agreement dated as of January 22, 1997 (as the same may from time to
time be amended or otherwise modified, the "MASTER POOLING AND SERVICING
AGREEMENT"), and a Series 1997-1 Variable Funding Supplement thereto, dated as
of January 22, 1997 (as the same may from time to time be amended or otherwise
modified, the "SUPPLEMENT" and, together with the Master Pooling and Servicing
Agreement, the "POOLING AND SERVICING AGREEMENT");
WHEREAS, the Trust proposes to issue its Class A Variable
Funding Certificates, Series 1997-1 (the "CLASS A CERTIFICATES") and its Class B
Variable Funding Certificates, Series 1997-1 (the "CLASS B CERTIFICATES" and,
together with the Class A Certificates, the "SERIES 1997-1 VARIABLE FUNDING
CERTIFICATES") pursuant to the Pooling and Servicing Agreement;
WHEREAS, the Trust also proposes to issue its Class C
Certificates, Series 1997-1 (the "CLASS C CERTIFICATES" and, together with the
Series 1997-1 Variable Funding Certificates, the "SERIES 1997-1 CERTIFICATES")
pursuant to the Pooling and Servicing Agreement; and
WHEREAS, the Class B Purchasers are willing to purchase the
Class B Certificates on the Closing Date and from time to time thereafter to
purchase VFC Additional Class B Invested Amounts thereunder on the terms and
conditions provided for herein;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby expressly acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINITIONS. All capitalized terms used herein as
defined terms and not defined herein shall have the meanings given to them in
the Pooling and Servicing Agreement. Each capitalized term defined herein shall
relate only to the Series 1997-1 Certificates and to no other Series of
Certificates issued by the Trust.
"ACT" has the meaning specified in subsection 2.7(a) of this
Agreement.
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"ADJUSTED EURODOLLAR RATE" for any Fixed Period shall mean the
rate (rounded upwards if necessary to the nearest whole multiple of 1/16th of
one percent per annum) of interest per annum (the "LIBO RATE") for deposits in
United States dollars offered by the principal office of Credit Suisse in
London, England to prime banks in the London interbank market in an amount of
not less than $1,000,000 for a period equal to such Fixed Period, plus the
remainder obtained by subtracting (i) the LIBO Rate for such Fixed Period from
(ii) the rate obtained by dividing such LIBO Rate by the percentage equal to
100% MINUS the "Eurodollar Reserve Percentage" (as defined in the succeeding
sentence) for such Fixed Period. The "EURODOLLAR RESERVE PERCENTAGE" for a Class
B Purchaser for any Fixed Period shall mean the reserve percentage applicable
during such Fixed Period (or, if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such Fixed
Period during which any such percentage shall be so applicable) under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any marginal emergency, supplemental
or any reserve requirement) for such Class B Purchaser in respect of liabilities
or assets consisting of or including Eurocurrency Liabilities (as that term is
used in Regulation D of the Board of Governors of the Federal Reserve System as
in effect from time to time) having a term equal to such Fixed Period.
"AFFECTED PARTY" shall mean, with respect to any Structured
Purchaser, any Support Bank of such Structured Purchaser.
"AGENT" shall mean Credit Suisse, in its capacity as Agent for
the Class B Purchasers, or any successor agent hereunder.
"AGENT BASE RATE" shall mean, for any day, the higher of (i)
the base commercial lending rate per annum announced from time to time by the
Agent in New York in effect on such day, or (ii) the interest rate per annum
quoted by the Agent at approximately 11:00 a.m., New York City time, on such
day, to dealers in the New York Federal funds market for the overnight offering
of Dollars by the Agent plus one-half of one percent (0.50%). (The Agent Base
Rate is not intended to represent the lowest rate charged by the Agent for
extensions of credit.)
"AGREEMENT" shall mean this Class B Certificate Purchase
Agreement, as amended, modified or otherwise supplemented from time to time.
"ALTERNATE RATE" shall mean, for any Fixed Period with respect
to the portion of the Class B Investor Principal Balance owed to a Class B
Purchaser, an interest rate per annum equal to 0.75% per annum above the
Adjusted Eurodollar Rate for such Fixed Period; PROVIDED, HOWEVER, that in the
case of (i) any Fixed Period on or prior to the date on which such Class B
Purchaser shall have notified the Agent that the introduction of or any change
in or in the interpretation of any law or regulation makes it unlawful, or any
central bank or other Governmental Authority asserts that it is unlawful for
such Class B Purchaser (or, in the case of a Structured Purchaser, for any
entity providing funds to such Structured Purchaser at an interest rate
determined by reference to the Adjusted Eurodollar Rate or a similar rate) to
fund such portion of the Class B Investor Principal Balance at the Alternate
Rate described above (and such Class B Purchaser shall not have subsequently
notified the Agent that such circumstances no longer exist), (ii) any Fixed
Period of less than 30 days, or (iii) any Fixed Period applicable to a portion
of the Class B Investor Principal
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Balance of less than $100,000 in the aggregate owed to all Class B Purchasers,
the "ALTERNATE RATE" for such Fixed Period for such Class B Purchaser shall be a
variable interest rate per annum equal to the Agent Base Rate from time to time
in effect during such Fixed Period.
"ASSIGNEE" and "ASSIGNMENT" have the respective meanings
specified in subsection 8.1(e) of this Agreement.
"BUSINESS DAY" means any day on which (i) banks are not
authorized or required to close in New York City and (ii) if such term is used
in connection with the Adjusted Eurodollar Rate, dealings are carried out in the
London interbank market.
"CLASS A CERTIFICATES" has the meaning specified in the
recitals to this Agreement.
"CLASS B CERTIFICATES" has the meaning specified in the
recitals to this Agreement.
"CLASS B FEE LETTER" shall mean that certain letter agreement,
designated therein as the Series 1997-1 Class B Fee Letter and dated as of the
date hereof, among the Agent, the Transferor and the Servicer, as such letter
agreement may be amended or otherwise modified from time to time.
"CLASS B INVESTOR PRINCIPAL BALANCE" shall mean, when used
with respect to any Business Day, an aggregate amount equal to (a) the Class B
Initial Invested Amount, plus (b) the aggregate VFC Additional Class B Invested
Amounts purchased by the Class B Certificateholders through the end of the
preceding Business Day pursuant to Section 6.15 of the Pooling and Servicing
Agreement, MINUS (c) the aggregate amount of principal payments made to the
Class B Certificateholders prior to such Business Day.
"CLASS B OWNERS" shall mean, with respect to any Class B
Certificate held by the Class B Agent hereunder for the benefit of Class B
Purchasers, the owners of the Class B Invested Amount represented by such Class
B Certificate as reflected on the books of the Class B Agent in accordance with
this Agreement.
"CLASS B PROGRAM FEE" shall mean the ongoing fees payable to
the Agent or the Class B Purchasers in the amounts and on the dates set forth in
the Class B Fee Letter.
"CLASS B REPAYMENT AMOUNT" shall mean the sum of all amounts
payable with respect to the principal amount of the Class B Certificates and
interest on the Class B Certificates and all other amounts (other than amounts
payable pursuant to subsection 2.3(b) or (c), the last sentence of subsection
2.6(a) and Section 2.7 hereof unless such amounts are not paid by the Servicer
pursuant to this Agreement) owing to the Class B Purchasers hereunder.
"CLASS C CERTIFICATES" has the meaning specified in the
recitals to this Agreement.
"CLOSING DATE" shall mean January 23, 1997.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended.
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"COMMERCIAL PAPER RATE" for any Fixed Period for any portion
of the Class B Investor Principal Balance shall mean, to the extent a Structured
Purchaser funds such portion for such Fixed Period by issuing commercial paper,
the sum of (i) the rate (or if more than one rate, the weighted average of the
rates) at which commercial paper notes of such Structured Purchaser having a
term equal to such Fixed Period and to be issued to fund such portion may be
sold by any placement agent or commercial paper dealer selected by or on behalf
of such Structured Purchaser, as agreed between each such agent or dealer and
such Structured Purchaser; PROVIDED that if the rate (or rates) as agreed
between any such agent or dealer and such Structured Purchaser for any Fixed
Period is a discount rate (or rates), then such rate shall be the rate (or if
more than one rate, the weighted average of the rates) resulting from converting
such discount rate (or rates) to an interest-bearing equivalent rate per annum,
plus (ii) 0.05% in respect of dealer fees and commissions (to the extent not
included in the rate or rates described in clause (i)).
"COMMITTED CLASS B PURCHASER" shall mean any Class B Purchaser
which has a Commitment, as set forth in its respective Joinder Supplement and
any Assignee of such Class B Purchaser to the extent of the portion of such
Commitment assumed by such Assignee pursuant to its respective Transfer
Supplement.
"COMMITMENT" shall mean, for any Committed Class B Purchaser,
the maximum amount of such Committed Class B Purchaser's commitment to purchase
a portion the Class B Invested Amount, as set forth in the Joinder Supplement or
the Transfer Supplement by which such Committed Class B Purchaser became a party
to this Agreement or assumed the Commitment (or a portion thereof) of another
Committed Class B Purchaser, as such amount may be adjusted from time to time
pursuant to Transfer Supplement(s) executed by such Committed Class B Purchaser
and its Assignee and delivered pursuant to Section 8.1 of this Agreement or
pursuant to Section 2.2 of this Agreement.
"COMMITMENT EXPIRATION DATE" shall mean, for a Committed Class
B Purchaser, the date set forth in the Joinder Supplement or the Transfer
Supplement by which such Committed Class B Purchaser became a party to this
Agreement or assumed the Commitment (or a portion thereof) of another Committed
Class B Purchaser, as such date may be extended from time to time by mutual
agreement of all Class B Purchasers, the Agent and the Transferor.
"COMMITMENT PERCENTAGE" shall mean, for a Committed Class B
Purchaser, such Class B Purchaser's Commitment as a percentage of the aggregate
Commitments of all Committed Class B Purchasers.
"CREDIT SUISSE" shall mean Credit Suisse First Boston, a Swiss
banking corporation acting through its New York Branch.
"DEFAULTING PURCHASER" has the meaning specified in subsection
2.1(e) of this Agreement.
"DOWNGRADED PURCHASER" has the meaning specified in subsection
8.1(k).
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"ELIGIBLE ASSIGNEE" shall mean Credit Suisse and each other
Person listed in a letter from the Agent to the Transferor dated the Closing
Date, as such list may be augmented from time to time with the consent of the
Agent and the Transferor.
"EXCLUDED TAXES" has the meaning specified in subsection
2.5(a) of this Agreement.
"FDSNB" has the meaning specified in the preamble to this
Agreement.
"FIXED PERIOD" shall mean with respect to a Class B Purchaser
and any portion of the Class B Investor Principal Balance owed to such Class B
Purchaser:
(a) initially the period commencing on the date of
purchase of such portion of the Class B Investor Principal Balance and
ending such number of days as the Transferor shall select and, in the
case of a Structured Purchaser, the Agent, acting at the direction of
such Structured Purchaser, shall approve pursuant to Section 2.1 up to
69 days from such date; provided that the initial Fixed Period for any
portions of the Class B Investor Principal Balance purchased by a
Committed Class B Purchaser shall be one day; and
(b) thereafter each period commencing on the last day
of the immediately preceding Fixed Period for such portion of the Class
B Investor Principal Balance and ending such number of days (not to
exceed 69 days) as the Transferor shall select and, in the case of a
Structured Purchaser, the Agent, acting at the direction of such
Structured Purchaser, shall approve on notice by the Transferor
received by the Agent (including notice by telephone, confirming in
writing) not later than 4:00 p.m. (New York City time) on such last
day, EXCEPT that if the Agent shall not have received such notice or
approved such period on or before 4:00 p.m. (New York City time) on
such last day, such period shall be one day;
PROVIDED that
(i) any Fixed Period in respect of which Yield is
computed by reference to the Alternate Rate shall be a period from one
to and including 29 days, or a period of one month, as the Transferor
may select as provided above; PROVIDED that in the case of a Fixed
Period of one month in respect of which the Alternate Rate is computed
by reference to the Adjusted Eurodollar Rate, each affected Class B
Purchaser shall have received at least two Business Days' prior notice
of such selection;
(ii) any Fixed Period (other than one day) which
would otherwise end on a day which is not a Business Day shall be
extended to the next succeeding Business Day (PROVIDED, HOWEVER, if
Yield in respect of such Fixed Period is computed by reference to the
Adjusted Eurodollar Rate, and such Fixed Period would otherwise end on
a day which is not a Business Day, and there is no subsequent Business
Day in the same calendar month as such day, such Fixed Period shall end
on the next preceding Business Day);
(iii) in the case of any Fixed Period of one day, (A)
if such Fixed Period is the initial Fixed Period for a portion of the
Class B Investor Principal Balance such Fixed Period shall be the day
of purchase of such portion; (B) any subsequently occurring Fixed
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Period which is one day shall, if the immediately preceding Fixed
Period is more than one day, be the last day of such immediately
preceding Fixed Period, and, if the immediately preceding Fixed Period
is one day, be the day next following such immediately preceding Fixed
Period; and (C) if such Fixed Period occurs on a day immediately
preceding a day which is not a Business Day, such Fixed Period shall be
extended to the next succeeding Business Day; and
(iv) in the case of any Fixed Period for any portion
of the Class B Principal Balance which commences before the Termination
Date and would otherwise end on a date occurring after the Termination
Date, such Fixed Period shall end on the Termination Date and the
duration of each Fixed Period which commences on or after the
Termination Date shall be of such duration as shall be selected by the
Agent.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"INDEMNITEE" has the meaning specified in subsection 2.7(a) of
this Agreement.
"INDEMNIFYING PARTY" has the meaning specified in subsection
2.7(b) of this Agreement.
"INVESTING OFFICE" shall mean initially, the office of any
Class B Purchaser (if any) designated as such, in the case of any initial Class
B Purchaser, in its Joinder Supplement and, in the case of any Assignee, in the
related Transfer Supplement, and thereafter, such other office of such Class B
Purchaser or such Assignee which shall be a beneficial holder of a portion of
the Class B Certificate as may be designated in writing to the Agent, the
Transferor, the Servicer and the Trustee by such Class B Purchaser or Assignee.
"INVESTMENT LETTER" has the meaning specified in subsection
8.1(a) of this Agreement.
"JOINDER SUPPLEMENT" has the meaning specified in subsection
2.2(d) of this Agreement.
"LIQUIDATION DAY" shall mean, for any Class B Purchaser and
any portion of the Class B Investor Principal Balance owed to such Purchaser,
any day other than the last day of such Class B Purchaser's Fixed Period
applicable to such portion of the Class B Investor Principal Balance (without
taking into account any shortened duration of such Fixed Period pursuant to
clause (iv) of the definition thereof), on which a reduction of such portion of
the Class B Investor Principal Balance occurs.
"LIQUIDATION FEE" shall mean, for any Class B Purchaser and
for any Liquidation Day, the amount, if any, by which (i) the additional Yield
(calculated without taking into account any Liquidation Fee) which would have
accrued during the current Fixed Period on the portion of the Class B Investor
Principal Balance owed to such Purchaser which is reduced on such day,
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exceeds (ii) the income, if any, received by such Class B Purchaser from
investing the proceeds of such reduction of the Class B Investor Principal
Balance.
"MASTER POOLING AND SERVICING AGREEMENT" has the meaning
specified in the recitals to this Agreement.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc.
"NONCOMMITTED CLASS B PURCHASER" shall mean a Class B
Purchaser which is not a Committed Class B Purchaser.
"NONCOMMITTED PURCHASER PERCENTAGE" shall mean for each Class
B Purchaser which is not a Committed Class B Purchaser, the percentage set forth
in its Joinder Supplement or the Transfer Supplement by which such Class B
Purchaser became a party to this Agreement, as such percentage may be adjusted
from time to time pursuant to Transfer Supplement(s) executed by such Class B
Purchaser and any Assignee and delivered pursuant to Section 8.1 of this
Agreement.
"NONDEFAULTING PURCHASER" has the meaning specified in
subsection 2.1(e) of this Agreement.
"PARTICIPANT" has the meaning specified in subsection 8.1(d)
of this Agreement.
"PARTICIPATION" has the meaning specified in subsection 8.1(d)
of the Agreement.
"PERCENTAGE INTEREST" shall mean, for a Class B Purchaser, (a)
the sum of (i) the portion of the Class B Initial Invested Amount (if any)
purchased by such Class B Purchaser, plus (ii) the aggregate VFC Additional
Class B Invested Amounts (if any) purchased by such Class B Purchaser through
the end of the preceding Business Day pursuant to Section 6.15 of the Pooling
and Servicing Agreement, plus (iii) any portion of the Class B Investor
Principal Balance acquired by such Class B Purchaser as an Assignee from another
Class B Purchaser pursuant to a Transfer Supplement executed and delivered
pursuant to Section 8.1 of this Agreement, minus (iv) the aggregate amount of
principal payments made to such Class B Purchaser prior to such Business Day,
minus (v) any portion of the Class B Investor Principal Balance assigned by such
Class B Purchaser to an Assignee pursuant to a Transfer Supplement executed and
delivered pursuant to Section 8.1 of this Agreement, as a percentage of (b) the
aggregate Class B Investor Principal Balance.
"POOLING AND SERVICING AGREEMENT" has the meaning specified in
the recitals to this Agreement.
"PURCHASE DATE" shall mean the Closing Date and each date on
which a purchase of a VFC Additional Class B Invested Amount is to occur in
accordance with Section 6.15 of the Pooling and Servicing Agreement and Section
2.1 hereof.
"RATING AGENCY" shall mean each of Moody's and Standard &
Poor's.
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"REDUCTION AMOUNT" has the meaning specified in subsection
2.6(a) of this Agreement.
"REGULATORY CHANGE" shall mean, as to each Class B Purchaser,
any change occurring after the date of the execution and delivery of the Joinder
Supplement or theTransfer Supplement by which it became a party to this
Agreement; in the case of a Participant, the date on which its Participation
became effective or, in the case of an Affected Party, the date it became such
an Affected Party, in any (or the adoption after such date of any new):
(i) United States Federal or state law or foreign law
applicable to such Class B Purchaser, Affected Party or Participant; or
(ii) regulation, interpretation, directive, guideline or
request (whether or not having the force of law) applicable to such
Class B Purchaser, Affected Party or Participant of any court or other
judicial authority or any Governmental Authority charged with the
interpretation or administration of any law referred to in clause (i)
or of any fiscal, monetary or other authority or central bank having
jurisdiction over such Class B Purchaser, Affected Party or
Participant.
"RELATED DOCUMENTS" shall mean, collectively, this Agreement
(including the Class B Fee Letter and all Joinder Supplements and Transfer
Supplements), the Master Pooling and Servicing Agreement, the Supplement, the
Series 1997-1 Certificates and the Receivables Purchase Agreement.
"REPLACEMENT PURCHASER" has the meaning specified in
subsection 2.4(c) of this Agreement.
"REQUIRED CLASS B OWNERS" shall mean, at any time, Class B
Purchasers having Percentage Interests aggregating at least 50.1%.
"REQUIRED CLASS B PURCHASERS" shall mean, at any time,
Committed Class B Purchasers having Commitments aggregating at least 50.1% of
the aggregate Commitments of all Committed Class B Purchasers.
"REQUIREMENT OF LAW" shall mean, as to any Person, any law,
treaty, rule or regulation, or determination of an arbitrator or Governmental
Authority, in each case applicable to or binding upon such Person or to which
such Person is subject, whether federal, state or local (including, without
limitation, usury laws, the Federal Truth in Lending Act and Regulation Z and
Regulation B of the Board of Governors of the Federal Reserve System).
"RESERVE ACCOUNT INCREASE NOTICE" shall mean a notice
delivered by the Administrative Agent in accordance with Section 2.8 hereof.
"SERIES 1997-1 VARIABLE FUNDING CERTIFICATES" has the meaning
specified in the recitals to this Agreement.
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"SERVICER" has the meaning specified in the preamble to this
Agreement.
"STANDARD & POOR'S" shall mean Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc.
"STRUCTURED PURCHASER" shall mean any Class B Purchaser whose
principal business consists of issuing commercial paper, medium term notes or
other securities to fund its acquisition and maintenance of receivables,
accounts, instruments, chattel paper, general intangibles and other similar
assets or interests therein and which is required by any nationally recognized
rating agency which is rating such securities to obtain from its principal
debtors an agreement such as that set forth in subsection 9.12(b) of this
Agreement in order to maintain such rating.
"SUPPLEMENT" has the meaning specified in the recitals to this
Agreement.
"SUPPORT BANK" shall mean any bank or other financial
institution extending or having a commitment to extend funds to or for the
account of any Structured Purchaser (including by agreement to purchase an
assignment of, or participation in Class B Certificates) under a liquidity or
credit support agreement which relates to this Agreement.
"TAXES" has the meaning specified in subsection 2.5(a) of this
Agreement.
"TERMINATION DATE" shall mean the Amortization Period
Commencement Date.
"TERMINATION EVENT" has the meaning specified in Section 2.8
hereof.
"TRANSFER" has the meaning specified in subsection 8.1(c) of
this Agreement.
"TRANSFER Supplement" has the meaning specified in subsection
8.1(e) of this Agreement.
"TRANSFEROR" has the meaning specified in the preamble to this
Agreement.
"TRUST" shall mean the Prime Credit Card Master Trust II.
"TRUSTEE" shall mean The Chase Manhattan Bank, a banking
corporation organized and existing under the laws of the State of New York, in
its capacity as Trustee under the Pooling and Servicing Agreement, together with
its successors in such capacity.
"WRITTEN" or "IN WRITING" (and other variations thereof) shall
mean any form of written communication or a communication by means of telex,
telecopier device, telegraph or cable.
"YIELD" shall mean, for any Business Day the aggregate of the
following amounts:
(i) for each portion of the Class B Investor
Principal Balance owed to a Structured Purchaser to the extent that
such Structured Purchaser has funded such portion through the issuance
of commercial paper notes on the immediately preceding Business Day,
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PB x CPR x ED + LF
--
360
and
(ii) for each remaining portion of the Class B
Investor Principal Balance,
PB x AR x ED + LF
--
TD
where:
PB = the relevant portion of the Class B
Investor Principal Balance
CPR = the Commercial Paper Rate then
applicable to the relevant portion
of the Class B Investor Principal Balance
AR = the Alternate Rate then applicable to the
relevant portion of the Class B Investor
Principal Balance
ED = the number of days elapsed since the
immediately preceding Business Day
TD = 360 if AR is the Adjusted Eurodollar Rate,
or 365 or 366, as applicable, if AR is the
Agent Base Rate
LF = the Liquidation Fee, if any, for such Business
Day
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 PURCHASES. (a) On and subject to the terms and conditions
of this Agreement, each Noncommitted Class B Purchaser which is a party hereto
on the Closing Date, severally, agrees to acquire its Noncommitted Purchaser
Percentage of the Class B Certificates on the Closing Date for a purchase price
equal to its Noncommitted Purchaser Percentage of the Initial Class B Invested
Amount, which shall not be less than $62,500, and each Committed Class B
Purchaser which is a party hereto on the Closing Date, severally, agrees to
acquire its Commitment Percentage of the Class B Certificates not so acquired by
Noncommitted Class B Purchasers on the Closing Date for a purchase price equal
to the portion of the Initial Class B Invested Amount represented thereby on the
Closing Date. Such purchase price shall be made available to the Transferor,
subject to the satisfaction of the conditions specified in Section 3 hereof, at
or prior to 1:00 p.m. New York City time on the Closing Date, at an account of
the Transferor specified in writing by the Transferor to the Agent in funds
immediately available to the Transferor. The Class B Purchasers hereby direct
that the Class B Certificates be registered in the name of the Agent, on behalf
of the Class B Owners from time to time hereunder.
(b) On and subject to the terms and conditions of this
Agreement and prior to the Termination Date, (i) each Noncommitted Class B
Purchaser may purchase its Noncommitted Purchaser Percentage of any VFC
Additional Class B Invested Amount offered for purchase by the
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Transferor pursuant to Section 6.15 of the Pooling and Servicing Agreement in an
amount of not less than $62,500, and (ii) each Committed Class B Purchaser,
severally, agrees to purchase a portion of such VFC Additional Class B Invested
Amount which is not purchased by Noncommitted Class B Purchasers pursuant to
clause (i) in an amount equal to the lesser of (A) its Commitment Percentage
thereof, or (B) the excess of its Commitment over its Percentage Interest of the
Class B Investor Principal Balance (determined prior to giving effect to such
purchase), in either case for a purchase price equal to the VFC Additional Class
B Invested Amount so purchased. Such purchase price shall be made available to
the Trustee in immediately available funds, for the account of the Transferor,
subject to the satisfaction of the conditions specified in Section 3 hereof, at
or prior to 1:00 p.m. New York City time on the applicable Purchase Date
specified pursuant to subsection 2.1(c), for deposit in the Proceeds Account
held by the Trustee pursuant to the Supplement. Each Noncommited Class B
Purchaser which is a Structured Purchaser confirms by becoming a party to this
Agreement that, subject to the terms and conditions of this Agreement, it
currently intends to purchase its Noncommitted Purchaser Percentage of any VFC
Additional Class B Invested Amount offered for purchase by the Transferor
pursuant to Section 6.15 of the Pooling and Servicing Agreement to the extent
that, at the time of such purchase, it is permitted and able in the ordinary
course of its business to issue commercial paper which is rated not lower than
the respective ratings assigned by Moody's and Standard & Poor's on the date on
which such Structured Purchaser became a Class B Purchaser (without increasing
or otherwise modifying any letter of credit or other enhancement provided to
such Structured Purchaser or any liquidity support provided to such Structured
Purchaser by Affected Parties) in sufficient amounts fully to fund such
purchase.
(c) The purchase of the Initial Class B Invested Amount shall
be made on prior notice from the Transferor to the Agent received by the Agent
not later than 9:30 a.m. New York City time on the Closing Date, and each
purchase of any VFC Additional Class B Invested Amount on the applicable
Purchase Date shall be made on prior notice from the Transferor to the Agent
received by the Agent not later than 4:00 p.m. New York City time on the
Business Day immediately preceding such Purchase Date. Each such notice shall be
irrevocable and shall specify (i) the aggregate VFC Additional Class B Invested
Amount to be purchased, (ii) the applicable Purchase Date (which shall be a
Business Day), and (iii) the desired duration of the initial Fixed Period for
the Class B Investor Principal Balance of each applicable Purchaser. The Agent
shall promptly forward a copy of such notice to each Class B Purchaser. In the
case of the purchase of a VFC Additional Class B Invested Amount, each
Noncommitted Class B Purchaser shall notify the Agent by 10:45 a.m., New York
City time, on the applicable Purchase Date whether it has determined to make
such purchase and, if so, whether all of the terms specified by the Transferor
are acceptable to such Noncommitted Class B Purchaser. In the event that a
Noncommitted Class B Purchaser shall not have timely provided such notice, it
shall be deemed to have determined not to make such purchase. The Agent shall
notify the Transferor and each Committed Class B Purchaser on or prior to 11:00
a.m., New York City time, on the applicable Purchase Date of whether each
Noncommitted Class B Purchaser has so determined to purchase its share of such
VFC Additional Class B Invested Amount and, in the event that Noncommitted Class
B Purchasers have not determined to purchase the entire VFC Additional Class B
Invested Amount, the Agent shall specify in such notice (i) the portion of the
VFC Additional Class B Invested Amount to be purchased by each Committed Class B
Purchaser, (ii) the applicable Purchase Date (which shall be a Business Day),
and (iii) the duration of the initial Fixed Period for the Class B Investor
Principal Balance of each Committed Class B Purchaser.
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(d) In no event may the Transferor offer any VFC Additional
Class B Invested Amount for purchase hereunder or under Section 6.15 of the
Pooling and Servicing Agreement, nor shall any Committed Class B Purchaser be
obligated to purchase any VFC Additional Class B Invested Amount, to the extent
that such VFC Additional Class B Invested Amount, when aggregated with the Class
B Investor Principal Balance determined prior to giving effect to the issuance
thereof, would exceed the aggregate Commitments.
(e) In the event that one or more Committed Class B Purchasers
(the "DEFAULTING PURCHASERS") fails to fund its Committed Percentage of any
purchase of a VFC Additional Class B Invested Amount by 1:00 p.m., New York City
time, on the applicable Purchase Date and the Servicer shall have notified the
Agent of such failure by not later than 1:30 p.m., New York City time, on such
Purchase Date, the Agent shall so notify each of the other Committed Class B
Purchasers (the "NONDEFAULTING PURCHASERS") not later than 2:30 p.m., New York
City time, on such Purchase Date, and each Nondefaulting Purchaser shall,
subject to the satisfaction of the conditions specified in Section 3 hereof,
purchase a portion of the aggregate VFC Additional Class B Invested Amount which
was to be purchased by the Defaulting Purchasers equal to the lesser of (i) its
Commitment Percentage thereof as a percentage of the aggregate Commitment
Percentages of all Nondefaulting Purchasers, and (ii) the excess of its
Commitment over its Percentage Interest of the Class B Investor Principal
Balance (determined prior to giving effect to such purchase), in either case for
a purchase price equal to the VFC Additional Class B Invested Amount so
purchased, by making such purchase price available to the Trustee for the
account of the Transferor at or prior to 5:00 p.m. New York City time, on such
Purchase Date for deposit into the Proceeds Account in immediately available
funds. No such purchase by Nondefaulting Purchasers shall relieve any Defaulting
Purchaser of its obligations to make purchases hereunder, and each Defaulting
Purchaser shall from and after the applicable Purchase Date be obligated to
purchase the portion of any VFC Additional Class B Invested Amount which such
Defaulting Purchaser was required to purchase hereunder and which was purchased
by a Nondefaulting Purchaser from such Nondefaulting Purchaser at a purchase
price equal to (i) the portion of the Class B Investor Principal Balance
represented thereby, plus (ii) accrued and unpaid interest thereon at the
applicable Class B Certificate Rate, plus (iii) an amount calculated at the rate
of 1.0% per annum from the applicable Purchase Date for such VFC Additional
Class B Invested Amount through the date of such purchase by the Defaulting
Purchaser. The Transferor shall have the right to replace any Defaulting
Purchaser hereunder with a Replacement Purchaser, and the Agent, acting at the
request of the Required Class B Purchasers, shall have the right to replace such
Defaulting Purchaser with a Replacement Purchaser which is an Eligible Assignee
or is otherwise reasonably acceptable to the Transferor; PROVIDED, that (x) such
replacement shall not affect the Defaulting Purchaser's right to receive any
amounts otherwise owed to it hereunder, when and as the same would have been due
and payable without regard to such replacement (subject to the rights of the
other parties hereto with respect to such Defaulting Purchaser), and (y) such
Replacement Purchaser shall, concurrently with its becoming a Committed Class B
Purchaser hereunder, purchase the portion of any VFC Additional Class B Invested
Amount at the time required to be purchased by the Defaulting Purchaser pursuant
to the preceding sentence for a purchase price equal to (i) the portion of the
Class B Investor Principal Balance represented thereby, plus (ii) accrued and
unpaid interest thereon at the applicable Class B Certificate Rate; PROVIDED
FURTHER, that upon any such replacement and purchase by a Replacement Purchaser,
any amounts owing to Nondefaulting Purchasers by such Defaulting
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Purchaser under clause (iii) of the preceding sentence shall remain an
obligation of such Defaulting Purchaser.
(f) The Class B Certificates shall be paid as provided in the
Pooling and Servicing Agreement. The Agent shall allocate each payment in
reduction of the Class B Investor Principal Balance to the Class B Owners PRO
RATA based on their respective Percentage Interests, and shall allocate each
payment of Class B Interest for any Business Day to the Class B Owners PRO RATA
based on the Yield on such Class B Owner's portion of the Class B Investor
Principal Balance for such Business Day. Amounts so allocated by the Agent shall
be distributed by the Agent to the respective Class B Owners when and as
received by the Agent from the Trust.
2.2 REDUCTIONS AND INCREASES OF COMMITMENTS. (a) At any time
the Transferor may, upon at least five Business Days' prior written notice to
the Agent, terminate in whole or reduce in part the portion of the Commitments
which exceed the then outstanding Class B Investor Principal Balance (after
adjustments thereto occurring on the date of such termination or reduction).
Each such partial reduction shall be in an aggregate amount of $1,250,000 or
integral multiples thereof. On the Termination Date, the aggregate Commitments
shall automatically reduce to an amount equal to the Class B Investor Principal
Balance on such day, and on each Business Day thereafter shall be further
reduced by an amount equal to the reduction in the Class B Investor Principal
Balance (if any) on such day. Reductions of the aggregate Commitments pursuant
to this subsection 2.2(a) shall be allocated to the PRO RATA to the Commitments
of each Committed Class B Purchaser based on its respective Commitment
Percentage.
(b) The Transferor may, upon at least two Business Days' prior
written notice to the Agent, terminate in whole or reduce in part the Commitment
of any Defaulting Purchaser or Downgraded Purchaser to an amount not less than
such Class A Purchaser's Percentage Interest of the Class A Principal Balance.
Each such partial reduction shall be in an aggregate amount of $125,000 or
integral multiples thereof. No such termination of reduction shall relieve such
Defaulting Purchaser of its obligations to Nondefaulting Purchasers pursuant to
subsection 2.1(e) hereof.
(c) The aggregate Commitments of the Committed Class B
Purchasers may be increased from time to time through the increase of the
Commitment of one or more Committed Class B Purchasers; PROVIDED, HOWEVER, that
no such increase shall have become effective unless (i) the Agent and the
Transferor shall have given their written consent thereto, (ii) such increasing
Committed Class B Purchaser shall have entered into an appropriate amendment or
supplement to this Agreement reflecting such increased Commitment and (iii) such
conditions, if any, as the Agent shall have required in connection with its
consent (including, without limitation, the delivery of legal opinions with
respect to such Committed Class B Purchaser, the agreement of such Committed
Class B Purchaser to become a Support Bank for one or more Structured Purchasers
having a support commitment corresponding to its Commitment hereunder and
approvals from the Rating Agency) shall have been satisfied. The Transferor may
also increase the aggregate Commitments of the Committed Class B Purchasers from
time to time by adding additional Committed Class B Purchasers in accordance
with subsection 2.2(d).
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(d) Subject to the provisions of subsections 8.1(a) and 8.1(b)
applicable to initial purchasers of Class B Certificates, a Person having
short-term credit ratings of not lower than P-1 from Moody's and A-1 from
Standard & Poor's may from time to time with the consent of the Agent and the
Transferor become a party to this Agreement as an initial or an additional
Noncommitted Class B Purchaser or an initial or an additional Committed Class B
Purchaser by (i) delivering to the Transferor an Investment Letter and (ii)
entering into an agreement substantially in the form attached hereto as EXHIBIT
B hereto (a "JOINDER SUPPLEMENT"), with the Agent and the Transferor,
acknowledged by the Servicer, which shall specify (A) the name and address of
such Person for purposes of Section 9.2 hereof, (B) whether such Person will be
a Noncommitted Class B Purchaser or Committed Class B Purchaser and, if such
Person will be a Committed Class B Purchaser, its Commitment, and (C) the other
information provided for in such form of Joinder Supplement. Upon its receipt of
a duly executed Joinder Supplement, the Agent shall on the effective date
determined pursuant thereto give notice of such effectiveness to the Transferor,
the Servicer and the Trustee, and the Servicer will provide notice thereof to
each Rating Agency (if required). If, at the time the effectiveness of the
Joinder Supplement for an additional Committed Class B Purchaser, the other
Committed Class B Purchasers are Class B Owners, it shall be a condition to such
effectiveness that such additional Committed Class B Purchaser purchase from
each other Class B Purchaser an interest in the Class B Certificates in an
amount equal to (i) such other Class B Purchaser's Percentage Interest of the
Class B Investor Principal Balance, times (ii) a fraction, the numerator of
which equals the Commitment of such additional Class B Purchaser, and the
denominator of which equals the aggregate Commitments of the Class B Purchasers
(determined after giving effect to the additional Commitment of the additional
Class B Purchaser as set forth in such Joinder Supplement), for a purchase price
equal to the portion of the Class B Investor Principal Balance purchased.
2.3 FEES, EXPENSES, PAYMENTS, Etc. (a) Subject to the
provisions of subsection 9.12(a) hereof, the Transferor agrees to pay to the
Agent for the account of the Class B Purchasers the fees set forth in the Class
B Fee Letter at the times specified therein.
(b) Subject to the provisions of subsection 9.12(a) hereof in
the case of the Transferor, the Transferor and FDSNB, jointly and severally,
shall be obligated to pay on demand to (i) the Agent and the initial Class B
Purchasers all reasonable costs and expenses in connection with the preparation,
execution, delivery and administration (including any requested amendments,
waivers or consents of any of the Related Documents) of this Agreement, and the
other documents to be delivered hereunder or in connection herewith, including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Agent and each of the initial Class B Purchasers with respect thereto
and (ii) the Agent and each Class B Purchaser, all reasonable costs and
expenses, if any, in connection with the enforcement of any of the Related
Documents, and the other documents delivered thereunder or in connection
therewith.
(c) Subject to the provisions of subsection 9.12(a) hereof in
the case of the Transferor, the Transferor and FDSNB, jointly and severally,
shall be obligated to pay on demand any and all stamp and other taxes (other
than Taxes covered by Section 2.5) and fees payable in connection with the
execution, delivery, filing and recording of this Agreement, the Class B
Certificates, any of the other Related Documents or the other documents and
agreements to be delivered hereunder and thereunder, and agree to save each
Class B Purchaser and the Agent
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harmless from and against any liabilities with respect to or resulting from any
delay by the Transferor or FDSNB in paying or omission to pay such taxes and
fees.
(d) Yield calculated by reference to the Adjusted Eurodollar
Rate shall be calculated on the basis of a 360-day year for the actual days
elapsed. Any Yield or interest accruing at the Agent Base Rate shall be
calculated on the basis of a 365- or 366-day year, as applicable, for the actual
days elapsed. Fees or other periodic amounts payable hereunder shall be
calculated, unless otherwise specified in the Class B Fee Letter, on the basis
of a 360-day year and for the actual days elapsed.
(e) Each determination of Yield by the Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Class B
Purchasers, the Transferor, the Servicer and the Trustee in the absence of
manifest error.
(f) All payments to be made hereunder, whether on account of
principal, interest, fees or otherwise, shall be made without setoff or
counterclaim and shall be made prior to 2:30 p.m., New York City time, on the
due date thereof to the Agent's account specified in subsection 9.2(b) hereof,
in United States dollars and in immediately available funds. Notwithstanding
anything herein to the contrary, if any payment due hereunder becomes due and
payable on a day other than a Business Day, the payment date thereof shall be
extended to the next succeeding Business Day and interest shall accrue thereon
at the applicable rate during such extension. To the extent that (i) the
Trustee, FDSNB, the Transferor or the Servicer makes a payment to the Agent or a
Class B Purchaser or (ii) the Agent or a Class B Purchaser receives or is deemed
to have received any payment or proceeds for application to an obligation, which
payment or proceeds or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be repaid to a
trustee, receiver or any other party under any bankruptcy or insolvency law,
state or Federal law, common law, or for equitable cause, then, to the extent
such payment or proceeds are set aside, the obligation or part thereof intended
to be satisfied shall be revived and continue in full force and effect, as if
such payment or proceeds had not been received or deemed received by the Agent
or the Class B Purchaser, as the case may be.
2.4 REQUIREMENTS OF LAW. (a) In the event that any Class B
Purchaser shall have reasonably determined that any Regulatory Change shall:
(i) subject such Class B Purchaser to any tax of any
kind whatsoever with respect to this Agreement, its Commitment or its
beneficial interest in the Class B Certificates, or change the basis of
taxation of payments in respect thereof (except for Taxes covered by
Section 2.5 and taxes included in the definition of Excluded Taxes in
subsection 2.5(a) and changes in the rate of tax on the overall net
income of such Class B Purchaser); or
(ii) impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, such Class B Purchaser;
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and the result of any of the foregoing is to increase the cost to such Class B
Purchaser, by an amount which such Class B Purchaser, in its reasonable
judgment, deems to be material, of maintaining its Commitment or its beneficial
interest in the Class B Certificates or to reduce any amount receivable in
respect thereof, then, in any such case, after submission by such Class B
Purchaser to the Agent of a written request therefor and the submission by the
Agent to the Transferor, the Trustee and the Servicer of such written request
therefor, (subject to subsection 9.12(a) hereof) the Transferor shall pay to the
Agent for the account of such Class B Purchaser any additional amounts necessary
to compensate such Class B Purchaser for such increased cost or reduced amount
receivable, together with interest on each such amount from the day which is ten
Business Days after the date such request for compensation under this subsection
2.4(a) is received by the Transferor until payment in full thereof (after as
well as before judgment) at the Agent Base Rate in effect from time to time.
(b) In the event that any Class B Purchaser shall
have reasonably determined that any Regulatory Change regarding capital adequacy
has the effect of reducing the rate of return on such Class B Purchaser's
capital or on the capital of any corporation controlling such Class B Purchaser
as a consequence of its obligations hereunder or its maintenance of its
Commitment or its beneficial interest in the Class B Certificates to a level
below that which such Class B Purchaser or such corporation could have achieved
but for such Regulatory Change (taking into consideration such Class B
Purchaser's or such corporation's policies with respect to capital adequacy) by
an amount reasonably deemed by such Class B Purchaser to be material, then, from
time to time, after submission by such Class B Purchaser to the Agent of a
written request therefor and submission by the Agent to the Transferor and the
Servicer of such written request therefor, (subject to subsection 9.12(a)
hereof) the Transferor shall pay to the Agent for the account of such Class B
Purchaser such additional amount or amounts as will compensate such Class B
Purchaser for such reduction, together with interest on each such amount from
the day which is ten Business Days after the date such request for compensation
under this subsection 2.4(b) is received by the Transferor until payment in full
thereof (after as well as before judgment) at the Agent Base Rate in effect from
time to time.
(c) Each Class B Purchaser agrees that it shall use its
reasonable efforts to reduce or eliminate any claim for compensation pursuant to
subsections 2.4(a) and 2.4(b), including but not limited to designating a
different Investing Office for its Class B Certificates (or any interest
therein) if such designation will avoid the need for, or reduce the amount of,
any increased amounts referred to in subsection 2.4(a) or 2.4(b) and will not,
in the reasonable opinion of such Class B Purchaser, be disadvantageous to such
Class B Purchaser or inconsistent with its policies or result in an unreimbursed
cost or expense to such Class B Purchaser or in an increase in the aggregate
amount payable under both subsections 2.4(a) and 2.4(b). If any increased
amounts referred to in subsection 2.4(a) or 2.4(b) shall not be eliminated or
reduced by the designation of a different Investing Office and payment thereof
hereunder shall not be waived by such Class B Purchaser, the Transferor shall
have the right to replace such Class B Purchaser hereunder with a new purchaser
reasonably acceptable to the Agent ("REPLACEMENT PURCHASER") that shall succeed
to the rights of such Class B Purchaser under this Agreement and such Class B
Purchaser shall assign its beneficial interest in the Class B Certificates to
such Replacement Purchaser in accordance with the provisions of Section 8.1,
PROVIDED, that (i) such Class B Purchaser shall not be replaced hereunder with a
new investor until such Class B Purchaser has been paid in full its Percentage
Interest of the Class B Investor Principal Balance and all accrued and unpaid
Yield (including any Liquidation Fee determined for
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the replacement date) thereon by such new investor and all other amounts
(including all amounts owing under this Section 2.4) owed to it pursuant to this
Agreement and (ii) if the Class B Purchaser to be replaced is the Agent or the
Administrative Agent or, unless the Agent and the Administrative Agent otherwise
agree, a Structured Purchaser sponsored or administered by the Administrative
Agent or the Agent (in its individual capacity), a replacement Agent or
Administrative Agent, as the case may be, shall have been appointed in
accordance with Section 7.9 and the Agent or Administrative Agent, as the case
may be, to be replaced shall have been paid all amounts owing to it as Agent or
Administrative Agent, as the case may be, pursuant to this Agreement; PROVIDED,
FURTHER, that the Transferor shall provide such Class B Purchaser with an
Officer's Certificate stating that such new investor is not subject to, or has
agreed not to seek, such increased amount.
(d) Each Class B Purchaser claiming increased amounts
described in subsection 2.4(a) or 2.4(b) will furnish to the Agent (together
with its request for compensation) a certificate setting forth any actions taken
by such Class B Purchaser to reduce or eliminate such increased amounts pursuant
to subsection 2.4(c) and the basis and the calculation of the amount (in
reasonable detail) of each request by such Class B Purchaser for any such
increased amounts referred to in subsection 2.4(a) or 2.4(b), such certificate
to be conclusive as to the factual information set forth therein absent manifest
error.
2.5 TAXES. (a) All payments made to the Class B Purchasers or
the Agent under this Agreement and the Pooling and Servicing Agreement
(including all amounts payable with respect to the Class B Certificates) shall,
to the extent allowed by law, be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority (collectively, "TAXES"), excluding (i) income taxes
(including, without limitation, branch profit taxes, minimum taxes and taxes
computed under alternative methods, at least one of which is based on or
measured by net income), franchise taxes (imposed in lieu of income taxes), or
any other taxes based on or measured by the net income of the Class B Purchaser
or the gross receipts or income of the Class B Purchaser; (ii) any Taxes that
would not have been imposed but for the failure of such Class B Purchaser or the
Agent, as applicable, to provide and keep current (to the extent legally able)
any certification or other documentation required to qualify for an exemption
from, or reduced rate of, any such Taxes or required by this Agreement to be
furnished by such Class B Purchaser or the Agent, as applicable; (iii) any Taxes
imposed as a result of a change by any Class B Purchaser of the Investing Office
(other than changes mandated by this Agreement, including subsection 2.4(c)
hereof, or required by law); and (iv) any Taxes imposed as a result of the
Transfer by any Class B Purchaser of its interest hereunder other than in
accordance with Section 8.1 (all such excluded taxes being hereinafter called
"EXCLUDED TAXES"). If any Taxes, other than Excluded Taxes, are required to be
withheld from any amounts payable to a Class B Purchaser or the Agent hereunder
or under the Pooling and Servicing Agreement, then after submission by any Class
B Purchaser to the Agent (in the case of an amount payable to a Class B
Purchaser) and by the Agent to the Transferor and the Servicer of a written
request therefor, the amounts so payable to such Class B Purchaser or the Agent,
as applicable, shall be increased and the Transferor shall be liable to pay to
the Agent for the account of such Class B Purchaser or for its own account, as
applicable, the amount of such increase) to the extent necessary to yield to
such Class B Purchaser or the Agent, as applicable (after payment of all such
Taxes) interest or any such other amounts payable hereunder or thereunder at the
rates or in the amounts
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specified in this Agreement and the Pooling and Servicing Agreement; PROVIDED,
HOWEVER, that the amounts so payable to such Class B Purchaser or the Agent
shall not be increased pursuant to this subsection 2.5(a) if such requirement to
withhold results from the failure of such Person to comply with subsection
2.5(c) hereof. Whenever any Taxes are payable on or with respect to amounts
distributed to a Class B Purchaser or the Agent, as promptly as possible
thereafter the Servicer shall send to the Agent, on behalf of such Class B
Purchaser (if applicable), a certified copy of an original official receipt
showing payment thereof. If the Trustee, upon the direction of the Servicer,
fails to pay any Taxes when due to the appropriate taxing authority or fails to
remit to the Agent, on behalf of such Class B Purchaser (if applicable), the
required receipts or other required documentary evidence, subject to subsection
9.12(a), the Transferor shall pay to the Agent on behalf of such Class B
Purchaser or for its own account, as applicable, any incremental taxes, interest
or penalties that may become payable by such Class B Purchaser or the Agent, as
applicable, as a result of any such failure. If any increased amounts payable
under this subsection 2.5(a) shall not be waived by the applicable Class B
Purchaser, the Transferor shall have the right to replace the Class B Purchaser
hereunder with a Replacement Purchaser that will succeed to the rights of such
Class B Purchaser under this Agreement; PROVIDED, that (i) such Class B
Purchaser shall not be replaced hereunder with a new investor until such Class B
Purchaser has been paid in full its Percentage Interest of the Class B Investor
Principal Balance and all accrued and unpaid Yield (including any Liquidation
Fee determined for the replacement date) thereon and all other amounts
(including all amounts owing under this Section 2.5) owed to it pursuant to this
Agreement and (ii) if the Class B Purchaser to be replaced is the Agent or
Administrative Agent, or, unless the Agent and the Administrative Agent
otherwise agree, a Structured Purchaser sponsored or administered by the
Administrative Agent or the Agent (in its individual capacity), a replacement
Agent or Administrative Agent, as the case may be, shall have been appointed in
accordance with Section 7.9 and the Agent or Administrative Agent, as the case
may be, to be replaced shall have been paid all amounts owing to it as Agent or
Administrative Agent, as the case may be, pursuant to this Agreement; PROVIDED,
FURTHER, that the Transferor shall provide such Class B Purchaser with an
Officer's Certificate stating that such new investor is not subject to such
Taxes or that such new investor is subject to a lesser amount of Taxes than the
Class B Purchaser.
(b) A Class B Purchaser claiming increased amounts under
subsection 2.5(a) for Taxes paid or payable by such Class B Purchaser (or the
Agent for its own account) will furnish to the Agent who will furnish to the
Transferor and the Servicer a certificate, setting forth the basis and amount of
each request by such Class B Purchaser for such Taxes, such certificate to be
conclusive as to the factual information set forth therein absent manifest
error. All such amounts shall be due and payable to the Agent on behalf of such
Class B Purchaser or for its own account, as the case may be, on the succeeding
Distribution Date following receipt by the Transferor of such certificate at
least 10 days prior to such Distribution Date, in each case if then incurred by
such Class B Purchaser and otherwise shall be due and payable on the following
Distribution Date (or, if earlier, on the Series 1997-1 Termination Date).
(c) Each Class B Purchaser and each Participant holding an
interest in Class B Certificates agrees that prior to the date on which the
first interest payment hereunder is due thereto, it will deliver to the Servicer
and the Trustee (i) if such Class B Purchaser or Participant is not incorporated
under the laws of the United States or any State thereof, two duly completed
copies of the U.S. Internal Revenue Service Form 4224 or successor applicable
forms required to evidence that
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the Class B Purchaser's or Participant's income from this Agreement or the Class
B Certificates is "effectively connected" with the conduct of a trade or
business in the United States as the case may be and (ii) a U.S. Internal
Revenue Service Form W-8 or W-9 or successor applicable or required forms. Each
Class B Purchaser or Participant holding an interest in Class B Certificates
also agrees to deliver to the Servicer and the Trustee two further copies of
said Form 4224 and Form W-8 or W-9, or such successor applicable forms or other
manner of certification, as the case may be, on or before the date that any such
form expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent form previously delivered by it to the Servicer and
the Trustee, and such extensions or renewals thereof as may reasonably be
requested by the Servicer, unless in any such case, solely as a result of a
change in treaty, law or regulation occurring prior to the date on which any
such delivery would otherwise be required, and assuming that Section 1446 of the
Code does not apply, the Class B Purchaser is no longer eligible to deliver the
then-applicable form set forth above. Each Class B Purchaser certifies,
represents and warrants and each Participant acquiring an interest in a Class B
Certificate or Class B Purchaser which is an Assignee shall certify, represent
and warrant as a condition of acquiring its Participation or beneficial interest
in the Class B Certificates (x) that its income from this Agreement or the Class
B Certificates is effectively connected with a United States trade or business
and (y) that it is entitled to an exemption from United States backup
withholding tax. Further, each Class B Purchaser covenants and each Participant
acquiring an interest in a Class B Certificate that for so long as it shall hold
such Participation or Class B Certificates it shall be held in such manner that
the income therefrom shall be effectively connected with the conduct of a United
States trade or business. The Servicer and the Trustee shall be entitled to
withhold or cause such withholding, and additional amounts in respect of Taxes
need not be paid to a Class B Purchaser or Participant in the event of a breach
of the certifications, representations, warranties or covenants set forth in
this subsection 2.5(c) by such Class B Purchaser or Participant.
(d) In the event that any Class B Purchaser or Participant
holding an interest in Class B Certificates shall breach the certifications,
representations, warranties or covenants set forth in this Section 2.5, the
Transferor shall have the right to replace such Class B Purchaser or such
Participant's lead Class B Purchaser hereunder with a Replacement Purchaser that
shall succeed to the rights of such Class B Purchaser under this Agreement and,
subject to compliance with the provisos to the last sentence of subsection
2.5(a), such Class B Purchaser shall assign its interest in this Agent and any
Class B Certificates owned by it to such Replacement Purchaser in accordance
with the provisions of Section 8.1.
2.6 NON-RECOURSE. (a) Except to the extent provided in this
Section 2.6, the obligation to repay the Class B Repayment Amount shall be
without recourse to the Transferor, the Servicer (or any Person acting on behalf
of any of them), the Holder of the Exchangeable Transferor Certificate, the
Trust (except to the extent specifically provided for herein or in the Pooling
and Servicing Agreement), the Trustee, the Certificateholders or any Affiliate
of any of them, and shall be limited solely to amounts payable to the Series
1997-1 Certificateholders under the Pooling and Servicing Agreement. To the
extent that such amounts are insufficient to pay the Class B Repayment Amount,
the obligation to pay the Class B Repayment Amount shall not constitute a claim
against the Transferor, the Servicer (or any Person acting on behalf of any of
them), the Holder of the Exchangeable Transferor Certificate, the Trust (except
to the extent specifically provided for herein or in the Pooling and Servicing
Agreement), the Trustee, the Certificateholders or any Affili-
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ate of any of them. Notwithstanding anything to the contrary contained herein,
if the Transferor or the Servicer shall fail to make any payment, deposit or
transfer relating to the Series 1997-1 Certificates required to be made pursuant
to the Pooling and Servicing Agreement and, as a result of such failure, the
amount available to be applied to the Class B Certificates pursuant to the
Pooling and Servicing Agreement is reduced to an amount which is less than the
amount which otherwise would have been available had such payment, deposit or
transfer been made (the amount of any such reduction hereinafter referred to as
a "REDUCTION AMOUNT"), the Transferor or the Servicer, as the case may be, shall
repay the Class B Investor Principal Balance, together with interest due thereon
in accordance with the Pooling and Servicing Agreement, to the extent of (i)
such Reduction Amount and (ii) interest on the portion of the Class B Investor
Charge-Offs, if any, which results from the existence of any Reduction Amount at
the Agent Base Rate plus 2.00% per annum.
(b) Subject to and without limiting the foregoing provisions
of this Section 2.6, the obligations of the Transferor and the Servicer under
this Agreement shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement, irrespective
of any of the following circumstances:
(i) any lack of validity or enforceability of this
Agreement, the Pooling and Servicing Agreement, the Series
1997-1 Certificates or the Supplement;
(ii) any amendment to or waiver of, or consent to or
departure from, this Agreement, the Series 1997-1 Certificates, the
Pooling and Servicing Agreement or the Supplement, unless agreed to by
the Required Class B Owners and the Required Class B Purchasers or all
the Class B Owners and the Required Class B Purchasers if required
hereunder;
(iii) the existence of any claim, setoff, defense or
other right which the Transferor, the Servicer or the Trustee may have
at any time against each other, the Agent, the Administrative Agent or
any Class B Purchaser, as the case may be, or any other Person, whether
in connection with this Agreement, the Class B Certificates, the
Pooling and Servicing Agreement or any unrelated transactions;
(iv) the bankruptcy or insolvency of the Trust or
with respect to any party jointly and severally liable with another
party hereto, of such other party; or
(v) any other circumstances or happening whatsoever,
whether or not similar to any of the foregoing; PROVIDED, that, with
respect to obligations owing to any Class B Purchaser, the same shall
not have constituted gross negligence or willful misconduct of such
Class B Purchaser.
2.7 INDEMNIFICATION. (a) Subject to subsection 9.12(a) hereof
in the case of the Transferor, the Transferor and FDSNB, jointly and severally,
agree to indemnify and hold harmless the Agent, the Administrative Agent and
each Class B Purchaser and any directors, officers, employees, attorneys,
auditors or accountants of such Agent, the Administrative Agent or Class B
Purchaser (each such person being referred to as an "INDEMNITEE") from and
against any and all claims, damages, losses, liabilities, costs or expenses
whatsoever which such Indemnitee may incur (or which may
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be claimed against such Indemnitee) by reason of or in connection with the
execution and delivery of, or payment under, this Agreement, the Pooling and
Servicing Agreement, the Series 1997-1 Certificates, except (i) to the extent
that any such claim, damage, loss, liability, cost or expense shall be caused by
the willful misconduct or gross negligence of such Indemnitee, (ii) to the
extent that any such claim, damage, loss, liability, cost or expense relates to
any Excluded Taxes, (iii) to the extent that any such claim, damage, loss,
liability, cost or expense relates to disclosure made by the Agent or a Class B
Purchaser in connection with an Assignment or Participation pursuant to Section
8.1 of this Agreement which disclosure is not based on information given to the
Agent by or on behalf of the Transferor, the Servicer or the Trustee or (iv) to
the extent that such claim, damage, loss, liability, cost or expense shall be
caused by a charge off of Receivables. The foregoing indemnity shall include any
claims, damages, losses, liabilities, costs or expenses to which any such
Indemnitee may become subject under the Securities Act of 1933, as amended (the
"ACT"), the Securities Exchange Act of 1934, as amended, the Investment Company
Act of 1940, as amended, or other federal or state law or regulation arising out
of or based upon any untrue statement or alleged untrue statement of a material
fact in any disclosure document relating to the Class B Certificates or the
Class A Certificates, or any amendments thereof or supplements thereto or
arising out of, or based upon, the omission or the alleged omission to state a
material fact necessary to make the statements therein or any amendment thereof
or supplement thereto, in light of the circumstances in which they were made,
not misleading.
(b) Promptly after the receipt by an Indemnitee of a notice of
the commencement of any action against an Indemnitee, such Indemnitee will
notify the Agent and the Agent will, if a claim in respect thereof is to be made
against the Transferor pursuant to subsection 2.7(a) (the "INDEMNIFYING PARTY"),
notify the Indemnifying Party in writing of the commencement thereof; but the
omission so to notify such party will not relieve such party from any liability
which it may have to such Indemnitee pursuant to subsection 2.7(a). Upon receipt
of such notice, the Indemnifying Party shall assume the defense of such action
or proceeding, including the employment of counsel satisfactory to the
Indemnitee in its reasonable judgment and the payment of all related expenses.
Each Indemnitee shall have the right to employ separate counsel in any such
action or proceeding and to participate in (but not control) the defense
thereof, but the fees and expenses of such counsel shall be at its own expense
unless (a) the Indemnifying Party shall have failed to assume or continue to
defend such action or proceeding, (b) the named parties to any such action or
proceeding (including any impleaded parties) include both such Indemnitee and
either the Transferor or another person or entity that may be entitled to
indemnification from the Transferor (by virtue of this Agreement or otherwise)
and such Indemnitee shall have been advised by counsel that there may be one or
more legal defenses available to such Indemnitee which are different from or
additional to those available to the Transferor or such other party or shall
otherwise have reasonably determined that the co-representation would present
such counsel with a conflict of interest, or (c) the Indemnifying Party and the
Indemnitee shall have mutually agreed to the retention of separate counsel.
Anything contained in this Agreement to the contrary notwithstanding, the
Transferor shall not be entitled to assume the defense of any part of a Third
Party Claim that specifically seeks an order, injunction or other equitable
relief or relief for other than money damages against the Indemnitee.
2.8 TERMINATION EVENTS. In the event that any one or more of
the following (each, a "TERMINATION EVENT") shall have occurred:
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(a) the failure of the Transferor, the Servicer or
the Trustee to make a deposit, payment or withdrawal required hereunder
or under any Related Document (determined without regard to the failure
of the Servicer to deliver any statement or certificate required
hereunder or under the Supplement in order for such deposit, payment or
withdrawal to be made) when and as required and such failure continues
for five Business Days; PROVIDED that the failure of the Transferor to
make additional payments pursuant to subsection 2.4(a) or 2.4(b) or
Section 2.5 hereof shall not constitute a Termination Event unless such
failure continues after the last Business Day of the Monthly Period
which follows the Monthly Period in which the Transferor received a
request for such payment pursuant to such subsection;
(b) any representation or warranty made herein or in
connection with this Agreement by the Transferor, the Servicer or the
Trustee shall prove to have been incorrect in any material respect when
made, and continues to be incorrect in any material respect for a
period of sixty (60) days after receipt of written notice thereof,
requiring the same to be remedied, by the Transferors and the Servicer
from the Agent and as a result the interests of the Class B Purchasers
or any other them are and continue to be materially and adversely
affected;
(c) the failure by the Transferor or the Servicer or,
if such failure is reasonably expected to have a material adverse
effect on the Class B Investors, by the Trustee, to duly observe or
perform any term or provision of this Agreement (except as described in
clause (a) above) which is not cured within 60 days after written
notice of such failure is given to the defaulting party by the Agent;
(d) the occurrence (whether occurring before or after
the commencement of an Amortization Period) of a Trust Pay Out Event, a
Series 1997-1 Pay Out Event or a Servicer Default, or the occurrence of
an event or condition which would be a Trust Pay Out Event, a Series
1997-1 Pay Out Event or a Servicer Default but for a waiver of or
failure to declare or determine such event by the Certificateholders or
the Trustee; or
(e) the Commitment Expiration Date;
THEN, in the event of a Termination Event described in any of clauses (a)
through (d) above, in addition to any other rights or remedies of the Class B
Purchasers hereunder or under any Related Documents, (A) the Administrative
Agent, at the direction of the Required Class B Owners and of the Required Class
B Purchasers (and without regard to whether a similar direction shall have been
given pursuant to the Class A Certificate Purchase Agreement) in their
discretion, shall deliver a Reserve Account Increase Notice to the Servicer as
contemplated by the Supplement, and/or (B) the Administrative Agent, at the
direction of the Required Class B Owners and of the Required Class B Purchasers
(and without regard to whether a similar direction shall have been given
pursuant to the Class A Certificate Purchase Agreement) in their discretion,
shall deliver a notice to the Trustee and the Servicer that such Termination
Event has occurred and directing that such Termination Event constitute a Series
1997-1 Pay Out Event under subsection 10(g) of the Supplement. In the event that
a Termination Event described in clause (e) above shall have occurred, the Agent
shall give notice thereof to the Administrative Agent, which shall, without
further direction, deliver
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prompt notice to the Trustee and the Servicer that such Termination Event has
occurred and directing that such Termination Event constitute a Series 1997-1
Pay Out Event under subsection 10(g) of the Supplement.
SECTION 3. CONDITIONS PRECEDENT
3.1 CONDITION TO INITIAL PURCHASE. As a condition precedent
to the initial purchase by any Class B Purchasers of the Class B Certificates,
(i) the Agent on behalf of the Class B Purchasers shall have received on the
Closing Date the following items, each of which shall be in form and substance
satisfactory to the Agent:
(a) the favorable written opinion of counsel for
each of Prime II Receivables Corporation and FDSNB addressed to the Agent and
the Class B Purchasers and dated the Closing Date, covering general corporate
matters and the due execution and delivery of, and the enforceability of, each
of the Related Documents to which it is party and such other matters as the
Agent may request;
(b) a copy of (i) the corporate charter and by-laws
of, and an incumbency certificate with respect to its officers executing any of
the Related Documents on the Closing Date on behalf of, each of Prime II
Receivables Corporation and FDSNB, certified by an authorized officer of each
such entity, (ii) good standing certificates from the appropriate Governmental
Authority as of a recent date with respect to each of Prime II Receivables
Corporation and FDSNB and (iii) resolutions of the Board of Director (or an
authorized committee thereof) of each of Prime II Receivables Corporation and
FDSNB with respect to the Related Documents to which it is party, certified by
an authorized officer of each such entity;
(c) the representations and warranties of the
Transferor set forth or referred to in Section 4.1 hereof and the
representations and warranties of FDSNB set forth or referred to in Section 4.2
hereof shall be true and correct in all material respects on Closing Date as
though made on and as of the Closing Date, and the Agent shall have received an
Officer's Certificate of the Transferor and of FDSNB, respectively, confirming
the satisfaction of the condition set forth in this clause (c);
(d) customary sale/security interest, tax,
bankruptcy and non-consolidation opinions, addressed to the Agent and the
Class B Purchasers;
(e) an agreed procedures letter from the independent
certified public accountants of FDSNB and a certificate of an authorized officer
of FDSNB with respect to the accuracy of data previously furnished to the Agent
with respect to the Receivables in the Trust, in each case in form and scope
satisfactory to the Agent;
(f) an executed copy of the Pooling and Servicing
Agreement, the Receivables Purchase Agreement and the Supplement;
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(g) evidence satisfactory to the Agent that the
Class C Certificates having a Class C Initial Invested Amount at least equal
to the Required Class C Invested Amount shall have been duly issued;
(h) evidence satisfactory to the Agent that the
initial deposit (if any) in the Reserve Account required by Section 4.9(a) of
the Pooling and Servicing Agreement shall have been made;
(i) evidence satisfactory to the Agent of the due
execution and delivery of the Related Documents to which it is party by the
Trustee; and
(j) all up front fees and expenses agreed and
specified in the Class B Fee Letter shall have been paid by the Transferor on
the Closing Date; and
(ii) all representations and warranties of the Transferor and the Servicer
contained herein shall be true and correct in all material respects on the
Closing Date (and after giving effect to the transactions contemplated hereby)
and no event which of itself or with the giving of notice or lapse of time, or
both, would permit the furnishing of a Reserve Account Increase Notice has
occurred and is continuing and the Agent shall have received an Officer's
Certificate of each of the Transferor and the Servicer to such effect.
3.2 CONDITION TO ADDITIONAL PURCHASE. The following shall be
conditions precedent to each purchase by any Class B Purchasers of VFC
Additional Class B Invested Amounts hereunder:
(a) the Transferor shall have timely delivered a
notice of purchase pursuant to subsection 2.1(c) of this Agreement;
(b) no Termination Event shall have occurred;
(c) after giving effect to such purchase of VFC
Additional Class B Invested Amount, the aggregate Class B Investor
Principal Balance shall not exceed the aggregate Commitments of the
Committed Class B Purchasers minus the aggregate Commitments of all
Defaulting Purchasers;
(d) the conditions set forth in Section 6.15 of the
Pooling and Servicing Agreement to the issuance of such VFC Additional
Class B Invested Amount shall have been satisfied; and
(e) the representations and warranties of the
Transferor contained in Section 4.1 and of FDSNB contained in Section
4.2 shall be true and correct in all material respects on and as of the
applicable Purchase Date, as though made on and as of such date, other
than the representations and warranties of FDSNB contained in the last
sentence of subsection 4.2(f) or in subsection 4.2(h), which shall have
been true and correct in all material respects when made and as of the
Closing Date, and other than the representations and warranties of the
Transferor and of FDSNB set forth in subsection 4.1(l) and subsection
4.2(g),
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respectively, which shall have been true and correct on all material
respects on or as of the respective dates specified therein.
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR. The
Transferor repeats and reaffirms to the Class B Purchasers and the Agent the
representations and warranties of the Transferor set forth in Sections 2.3 and
2.4 of the Pooling and Servicing Agreement and represents and warrants that such
representations and warranties are true and correct as of the date hereof. The
Transferor further represents and warrants to, and agrees with, the Agent and
each Class B Purchaser that, as of the date hereof:
(a) The Transferor has been duly organized and is
validly existing and in good standing as a corporation under the laws of the
State of Delaware, with corporate power and authority to own its properties and
to transact the business in which it is now engaged, and the Transferor is duly
qualified to do business and is in good standing in each State of the United
States where the nature of its business requires it to be so qualified.
(b) The Transferor has the full corporate power,
authority and legal right to make, execute, deliver and perform the Related
Documents to which it is party and all of the transactions contemplated thereby
and to issue the Series 1997-1 Certificates from the Trust and has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Related Documents to which it is party and such issuance. Each of the
Related Documents to which it is party constitutes the legal, valid and binding
agreement of the Transferor enforceable in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of the rights of creditors generally and except
as such enforceability may be limited by general principles of equity, whether
considered in a proceeding at law or in equity).
(c) The Transferor is not required to obtain the
consent of any other party or any consent, license, approval or authorization
of, or registration with, any Governmental Authority in connection with the
execution, delivery or performance of each of the Related Documents to which it
is party that has not been duly obtained and which is not and will not be in
full force and effect on the Closing Date.
(d) The execution, delivery and performance of the
Related Documents to which it is party by the Transferor do not violate or
conflict with any provision of any existing law or regulation applicable to the
Transferor or any order or decree of any court to which the Transferor is
subject or the Certificate of Incorporation or Bylaws of the Transferor, or any
mortgage, security agreement, indenture, contract or other agreement to which
the Transferor is a party or by which the Transferor or any significant portion
of its properties is bound.
(e) There is no litigation, investigation or
administrative proceeding before any court, tribunal, regulatory body or
governmental body presently pending, or, to the knowledge of the Transferor,
threatened, with respect to any of the Related Documents, the transactions
contemplated thereby, or the issuance of the Series 1997-1 Certificates and
there is no such litigation or pro-
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ceeding against the Transferor or any significant portion of its properties
which would, individually or in the aggregate, have a material adverse effect on
the transactions contemplated by any of the Related Documents or the ability of
the Transferor to perform its obligations thereunder.
(f) The Transferor is not insolvent or the subject
of any voluntary or involuntary bankruptcy proceedings.
(g) No Pay Out Event, Servicer Default, Termination
Event or event permitting the furnishing of a Reserve Account Increase Notice
has occurred and is continuing, and no event, act or omission has occurred and
is continuing which, with the lapse of time, the giving of notice, or both,
would constitute such an event or default.
(h) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as amended, and
neither the Trust nor the Transferor is required to be registered under the
Investment Company Act of 1940, as amended.
(i) The Receivables conveyed by the Transferor
to the Trust under the Pooling and Servicing Agreement are in an aggregate
amount, determined as of January 22, 1997, of $122,771,932.29. The Receivables
Purchase Agreement is in full force and effect on the date hereof and no
material default by any party exists thereunder.
(j) The Trust is duly created and existing under the
laws of the State of New York. Simultaneous with the closing hereunder, all
conditions to the issuance and sale of the Series 1997-1 Certificates set forth
in the Pooling and Servicing Agreement have been satisfied and the Series 1997-1
Certificates have been duly issued by the Trust.
(k) Neither the Transferor nor any of its
Affiliates has directly, or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any "security"
(as defined in the Act) that is or will be integrated with the sale of the any
Series 1997-1 Certificates in a manner that would require the registration under
the Act of the offering of the Series 1997-1 Certificates or (ii) engaged in any
form of general solicitation or general advertising in connection with the
offering of the Series 1997-1 Certificates (as those terms are used in
Regulation D under the Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Act. Assuming the accuracy of the
representations and warranties of each Class B Purchaser in its Investment
Letter and of each purchaser of Class A Certificates and Class C Certificate in
their respective investment letters, the offer and sale of the Series 1997-1
Certificates are transactions which are exempt from the registration
requirements of the Act.
(l) All written factual information heretofore
furnished by the Transferor to, or for delivery to, the Agent for purposes of or
in connection with this Agreement, including, without limitation, information
relating to the Accounts and Receivables and the Transferor's and FDSNB's credit
card businesses, was true and correct in all material respects on the date as of
which such information was stated or certified and remains true and correct in
all material respects (unless such information specifically relates to an
earlier date in which case such information shall have been true and correct in
all material respects on such earlier date).
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4.2 REPRESENTATIONS AND WARRANTIES OF FDSNB. FDSNB repeats
and reaffirms to the Class B Purchasers and the Agent the representations and
warranties of the Servicer set forth in Section 3.3 of the Pooling and Servicing
Agreement and represents and warrants that such representations and warranties
are true and correct as of the date hereof. FDSNB further represents and
warrants to, and agrees with, the Agent and each Class B Purchaser that, as of
the date hereof:
(a) FDSNB has been duly organized and is validly
existing and in good standing as a national banking association under the laws
of the United States of America, with corporate power and authority to own its
properties and to transact the business in which it is now engaged, and FDSNB is
duly qualified to do business (or is exempt from such qualification) and is in
good standing in each State of the United States where the nature of its
business requires it to be so qualified. FDSNB is an insured depository
institution under Section 4(a) of the Federal Deposit Insurance Act.
(b) FDSNB has the full corporate power, authority
and legal right to make, execute, deliver and perform the Related Documents to
which it is party and all the transactions contemplated thereby and has taken
all necessary corporate action to authorize the execution, delivery and
performance of the Related Documents to which it is party. Each of the Related
Documents to which it is party constitutes the legal, valid and binding
agreement of FDSNB enforceable in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of the rights of creditors generally and the
rights of creditors of national banking associations and except as such
enforceability may be limited by general principles of equity, whether
considered in a proceeding at law or in equity).
(c) FDSNB is not required to obtain the consent of
any other party or any consent, license, approval or authorization of, or
registration with, any Governmental Authority in connection with the execution,
delivery or performance of each of the Related Documents to which it is party
that has not been duly obtained and which is not and will not be in full force
and effect on the Closing Date.
(d) The execution, delivery and performance of each
of the Related Documents to which it is party by FDSNB do not violate or
conflict with any provision of any existing law or regulation applicable to
FDSNB or any order or decree of any court to which FDSNB is subject or the
Articles of Association or Bylaws of FDSNB, or any mortgage, security agreement,
indenture, contract or other agreement to which FDSNB is a party or by which
FDSNB or any significant portion of FDSNB's properties is bound.
(e) There is no litigation, investigation or
administrative proceeding before any court, tribunal, regulatory body or
governmental body presently pending, or, to the knowledge of FDSNB, threatened,
with respect to the Related Documents, the transactions contemplated thereby, or
the issuance of the Series 1997-1 Certificates, and there is no such litigation
or proceeding against FDSNB or any significant portion of its properties which
would, individually or in the aggregate, have a material adverse effect on the
transactions contemplated by any of the Related Documents or the ability of
FDSNB, in its capacity as Servicer or otherwise, to perform its obligations
thereunder.
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(f) FDSNB is not insolvent or the subject of any
insolvency or liquidation proceeding. The financial statements of FDSNB
delivered to the Agent are complete and correct in all material respects and
fairly present the financial condition of FDSNB as of date of such statements
and the results of operations of FDSNB for the period then ended, all in
accordance with regulatory accounting principles consistently applied. Since the
date of the most recent audited financial statements of FDSNB delivered to the
Agent, there has not been any material adverse change in the condition
(financial or otherwise) of FDSNB.
(g) All written factual information heretofore
furnished by FDSNB to, or for delivery to, the Agent for purposes of or in
connection with this Agreement, including, without limitation, information
relating to the Accounts and Receivables and the Transferor's and FDSNB's
VISA(R) credit card businesses, was true and correct in all material respects on
the date as of which such information was stated or certified and remains true
and correct in all material respects (unless such information specifically
relates to an earlier date in which case such information shall have been true
and correct in all material respects on such earlier date).
(h) There are no outstanding comments from the most
recent report prepared by FDSNB's (in its capacity as Servicer) independent
public accountants in connection with its VISA(R) credit card receivables.
(i) No Pay Out Event, Servicer Default,
Termination Event or event permitting the furnishing of a Reserve Account
Increase Notice has occurred and is continuing, and no event, act or omission
has occurred and is continuing which, with the lapse of time, the giving of
notice, or both, would constitute such an event or default.
4.3 REPRESENTATIONS AND WARRANTIES OF THE AGENT AND THE CLASS
B PURCHASERS. Each of the Agent and the Class B Purchasers represents and
warrants to, and agrees with, the Transferor and the Servicer, that:
(a) It is duly authorized to enter into and perform
this Agreement and to purchase its Commitment Percentage (if any) of the Class B
Certificates, and has duly executed and delivered this Agreement; and the person
signing this Agreement on behalf of such Class B Purchaser has been duly
authorized by such Class B Purchaser to do so.
(b) This Agreement constitutes the legal, valid and
binding obligation of such Class B Purchaser, enforceable in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, conservatorship or other similar laws
now or hereafter in effect affecting the enforcement of creditors' rights in
general, and except as such enforceability may be limited by general principles
of equity (whether considered in a proceeding at law or in equity).
(c) No registration with or consent or approval of
or other action by any state or local governmental authority or regulatory body
having jurisdiction over such Class B Purchaser is required in connection with
the execution, delivery or performance by such Class B Purchaser of this
Agreement other than as may be required under the blue sky laws of any state.
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SECTION 5. COVENANTS
5.1 COVENANTS OF THE TRANSFEROR AND FDSNB. Each of the
Transferor and FDSNB (individually or, as set forth below, as the Servicer)
covenants and agrees, so long as any amount of the Class B Investor Principal
Balance shall remain outstanding or any monetary obligation arising hereunder
shall remain unpaid, unless the Required Class B Owners and the Required Class B
Purchasers shall otherwise consent in writing, that:
(a) each of the Transferor and the Servicer shall
perform in all material respects each of the respective agreements, warranties
and indemnities applicable to it and comply in all material respects with each
of the respective terms and provisions applicable to it hereunder and under the
other Related Documents to which it is party, which agreements are hereby
incorporated by reference into this Agreement as if set forth herein in full;
and each of the Transferor and the Servicer shall take all reasonable action to
enforce the obligations of each of the other parties to such Related Documents
which are contained therein;
(b) the Transferor and the Servicer shall
furnish to the Agent (i) a copy of each opinion, certificate, report, statement,
notice or other communication (other than investment instructions) relating to
the Series 1997-1 Certificates which is furnished by or on behalf of either of
them to Certificateholders, to any Rating Agency or to the Trustee and furnish
to the Agent after receipt thereof, a copy of each notice, demand or other
communication relating to the Series 1997-1 Certificates, this Agreement or the
Pooling and Servicing Agreement received by the Transferor or the Servicer from
the Trustee, any Rating Agency or 15% or more of the Series 1997-1
Certificateholders (to the extent such notice, demand or communication relates
to the Accounts, the Receivables, any Servicer Default or any Pay Out Event);
and (ii) such other information, documents records or reports respecting the
Trust, the Receivables, the Transferor, FDSNB or the Servicer as the Agent may
from time to time reasonably request without unreasonable expense to the
Transferor or the Servicer;
(c) the Servicer shall furnish to the Agent on or
before the date such reports are due under the Pooling and Servicing Agreement
copies of each of the reports and certificates required by subsection 3.4(b) and
Sections 3.5 and 3.6 of the Pooling and Servicing Agreement;
(d) the Servicer shall promptly furnish to the
Agent a copy, addressed to the Agent, of each opinion of counsel delivered to
the Trustee pursuant to Section 13.2(d) of the Pooling and Servicing Agreement;
(e) FDSNB shall furnish to the Agent (i) a copy of
its annual Call Report promptly after it becomes available, (ii) an annual
certificate dated within 90 days after the end each of its fiscal years stating
its compliance (or failure to comply) with each minimum ratio of total capital
and core capital to risk-weighted assets required by Governmental Authorities in
accordance with the implementation of the Basle Accord;
(f) the Servicer shall furnish to the Agent a
certificate concurrently with its delivery of its annual certificate pursuant to
Section 3.5 of the Pooling and Servicing Agreement stating that no Termination
Event (other than a Termination Event described in clause (e) of
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subsection 2.8) or event or condition which with the passage of time or the
giving of notice, or both, would constitute such a Termination Event or, if such
Termination Event, event or condition has occurred, identifying the same in
reasonable detail;
(g) the Transferor shall not exercise its right to
accept optional reassignment of the Receivables or repurchase the Series 1997-1
Certificates pursuant to Sections 10.2 or 12.2 of the Pooling and Servicing
Agreement or Section 3 of the Supplement, unless the Class B Purchasers have
been paid, or will be paid upon such repurchase or in connection with such
optional reassignment, the Class B Investor Principal Balance, all interest
thereon and all other amounts owing hereunder in full;
(h) the Transferor and the Servicer shall at any
time from time to time during regular business hours, on reasonable notice to
the Transferor or the Servicer, as the case may be, permit the Agent, or its
agents or representatives to:
(i) examine all books, records and
documents (including computer tapes and disks) in its possession or
under its control relating to the Receivables, and
(ii) visit its offices and property
for the purpose of examining such materials described in clause (i)
above.
The information obtained by the Agent or any Class B Purchaser pursuant to this
subsection shall be held in confidence in accordance with Section 6.2 hereof;
(i) the Servicer shall furnish to the Agent,
promptly after the occurrence of any Servicer Default, Termination Event, Pay
Out Event or any event which would permit the furnishing of a Reserve Account
Increase Notice, a certificate of an appropriate officer of the Servicer setting
forth the circumstances of such Servicer Default, Pay Out Event, Termination
Event or event and any action taken or proposed to be taken by the Servicer or
the Transferor with respect thereto;
(j) the Transferor and the Servicer shall timely
make all payments, deposits or transfers and give all instructions to transfer
required by this Agreement and the Pooling and Servicing Agreement;
(k) the Transferor shall not terminate (except in
accordance with the terms thereof), amend, waive or otherwise modify the Pooling
and Servicing Agreement or the Supplement unless (i) such amendment, waiver or
modification shall not, as evidenced by an Officer's Certificate of the
Transferor delivered to the Agent, adversely affect in any material respect the
interests of the Agent or the Class B Purchasers under this Agreement or the
Pooling and Servicing Agreement, and will not result in a reduction or
withdrawal of the then current rating by any Rating Agency of any commercial
paper notes issued by any Structured Purchaser; (ii) all of the provisions of
Section 13.1 of the Pooling and Servicing Agreement have been complied with and
(iii) in the case of any amendment of the Supplement, any amendment to be
effected pursuant to subsection 13.1(b) of the Pooling and Servicing Agreement
or any amendment to the interest rate to be borne by the Class A
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Certificates or the Class C Certificates, the prior written consent thereto
shall have been provided by the Required Class B Owners and the Required Class B
Purchasers;
(l) the Transferor and the Servicer shall execute
and deliver to the Agent all such documents and instruments and do all such
other acts and things as may be necessary or reasonably required by the Agent
or the Trustee to enable the Trustee or the Agent to exercise and enforce their
respective rights under this Agreement and the Pooling and Servicing Agreement
and to realize thereon, and record and file and rerecord and refile all such
documents and instruments, at such time or times, in such manner and at such
place or places, all as may be necessary or required by the Trustee or the Agent
to validate, preserve, perfect and protect the position of the Trustee under the
Pooling and Servicing Agreement;
(m) without the prior written consent of the
Required Class B Owners and the Required Class B Purchasers, the Transferor will
not appoint (or cause to be appointed) a successor Trustee;
(n) neither the Transferor nor the Servicer will
consolidate with or merge into any other Person or convey or transfer its
properties and assets substantially as an entirety to any Person, except (i) in
accordance with Section 7.2 or 8.2 of the Pooling and Servicing Agreement, with
respect to the Transferor or the Servicer, respectively, and (ii) so long as (A)
the obligations of the Transferor or the Servicer, as the case may be, under
this Agreement and any other document executed and delivered in connection
herewith shall be expressly assumed in writing by the transferee, purchaser or
successor corporation, (B) the Transferor or the Servicer, as the case may be,
has delivered to the Agent an Officer's Certificate of the Transferor or the
Servicer and an Opinion of Counsel addressed to the Agent and each Class B
Purchaser meeting the requirements of subsection 7.2(a)(ii) or 8.2(ii) of the
Pooling and Servicing Agreement, as appropriate, as provided in such agreement,
(C) the Transferor or the Servicer, as the case may be, has delivered to the
Agent a copy of the notice to the Rating Agencies delivered pursuant to
subsection 7.2(a)(iii) or 8.2(iii) of the Pooling and Servicing Agreement, and
(D) such consolidation, merger or transfer, in the reasonable judgment of the
Transferor and the Servicer, will not have a material adverse effect on the
interests of the Class B Purchasers hereunder or under the Pooling and Servicing
Agreement;
(o) the Transferor shall not reduce or withdraw any
Discount Percentage then in effect unless such reduction or withdrawal (i) would
not in the reasonable belief of the Transferor cause a Pay Out Event with
respect to the Series 1997-1 Certificates or an event which, with notice or
lapse of time or both, would constitute such a Pay Out Event to occur or (ii) is
consented to by the Required Class B Owners and the Required Class B Purchasers;
(p) the Transferor and FDSNB will not make any
material amendment, modification or change to, or provide any waiver under, the
Receivables Purchase Agreement without the prior written consent of the Required
Class B Owners and the Required Class B Purchasers;
(q) the Transferor will not incur, permit or suffer
to exist any lien, charge or other adverse claim on the Minimum Transferor
Amount in the Trust;
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(r) the Transferor will not engage in any business
other than the transactions contemplated by this Agreement and the Related
Documents;
(s) the Transferor will not (i) incur any
liabilities or indebtedness, other than pursuant to this Agreement and the
Related Documents or reasonably related thereto, (ii) incur or permit or
suffer to exist any lien, charge or encumbrance on any of its properties or
assets, other than as provided for in the Pooling and Servicing Agreement,
(iii) make any investments other than in Cash Equivalents or (iv) make any
capital expenditures other than those reasonably required for its performance
of its obligations hereunder and under the Related Documents; and
(t) the Transferor will not amend, modify or
otherwise make any change to its Certificate of Incorporation if such amendment,
modification or other change would have a material adverse effect on the
interests of the Class B Purchasers, would affect any provisions thereof
relating to the commencement of a voluntary bankruptcy proceeding or which is
inconsistent with the assumptions set forth in the legal opinion of Xxxxx, Day,
Xxxxxx & Xxxxx, counsel to FDSNB and the Transferor, issued in connection with
this Agreement and the transactions contemplated hereby and relating to the
issues of substantive consolidation.
SECTION 6. MUTUAL COVENANTS REGARDING CONFIDENTIALITY
6.1 COVENANTS OF TRANSFEROR, ETC. The Transferor and the
Servicer shall hold in confidence, and not disclose to any Person, the terms of
any fees payable in connection with this Agreement except they may disclose such
information (i) to their officers, directors, employees, agents, counsel,
accountants, auditors, advisors or representatives, (ii) with the consent of the
Required Class B Purchasers and Agent, or (iii) to the extent the Transferor or
the Servicer or any Affiliate of either of them should be required by any law or
regulation applicable to it or requested by any Governmental Authority to
disclose such information; PROVIDED, that, in the case of clause (iii), the
Transferor or the Servicer, as the case may be, will use all reasonable efforts
to maintain confidentiality and will (unless otherwise prohibited by law) notify
the Agent of its intention to make any such disclosure prior to making such
disclosure.
6.2 COVENANTS OF CLASS B PURCHASERS. The Agent and each Class
B Purchaser covenants and agrees that any information obtained by the Agent or
such Class B Purchaser pursuant to this Agreement shall be held in confidence
(it being understood that documents provided to the Agent hereunder may in all
cases be distributed by the Agent to the Class B Purchasers) except that the
Agent or such Class B Purchaser may disclose such information (i) to its
officers, directors, employees, agents, counsel, accountants, auditors, advisors
or representatives, (ii) to the extent such information has become available to
the public other than as a result of a disclosure by or through the Agent or
such Class B Purchaser, (iii) to the extent such information was available to
the Agent or such Class B Purchaser on a nonconfidential basis prior to its
disclosure to the Agent or such Class B Purchaser hereunder, (iv) with the
consent of the Transferor, (v) to the extent permitted by Section 8.1, (vi) to
the extent the Agent or such Class B Purchaser should be (A) required in
connection with any legal or regulatory proceeding or (B) requested by any
Governmental Authority to disclose such information or (vii) in the case of any
Class B Purchaser that is a Structured Lender, to rating agencies, placement
agents and providers of liquidity and credit support who agree to hold such
information in confidence; PROVIDED, that, in the case of clause (vi) above, the
Agent or such
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Class B Purchaser, as applicable, will use all reasonable efforts to maintain
confidentiality and, in the case of clause (vi)(A) above, will (unless otherwise
prohibited by law) notify the Transferor of its intention to make any such
disclosure prior to making any such disclosure.
SECTION 7. THE AGENTS
7.1 APPOINTMENT. (a) Each Class B Purchaser hereby
irrevocably designates and appoints the Agent as the agent of such Class B
Purchaser under this Agreement, and each such Class B Purchaser irrevocably
authorizes the Agent, as the agent for such Class B Purchaser, to take such
action on its behalf under the provisions of the Related Documents and to
exercise such powers and perform such duties thereunder as are expressly
delegated to the Agent by the terms of this Agreement, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Class B Purchaser, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Agent.
(b) Each Class B Purchaser hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Class B Purchaser under
the Pooling and Servicing Agreement, and each such Class B Purchaser irrevocably
authorizes the Administrative Agent, as the agent for such Class B Purchaser, to
take such action on its behalf under the provisions of the Pooling and Servicing
Agreement and to exercise such powers thereunder as are expressly granted to the
Administrative Agent by the terms of the Pooling and Servicing Agreement,
subject to the terms and conditions of this Agreement, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein or
in the Pooling and Servicing Agreement, or any fiduciary relationship with any
Class B Purchaser, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or
otherwise exist against the Administrative Agent.
7.2 DELEGATION OF DUTIES. The Agent and the Administrative
Agent may execute any of its duties under this Agreement or any of the other
Related Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
Neither the Agent nor the Administrative Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
7.3 EXCULPATORY PROVISIONS. Neither the Agent nor the
Administrative Agent nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be (a) liable to any of the Class
B Purchasers for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any of the other Related
Documents (except for its or such Person's own gross negligence or willful
misconduct) or (b) responsible in any manner to any of the Class B Purchasers
for any recitals, statements, representations or warranties made by the
Transferor, the Servicer or the Trustee or any officer thereof contained in this
Agreement or any of the other Related Documents or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent or the Administrative Agent under or in connection with, this Agreement or
any of the other Related Documents or for the value, validi-
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ty, effectiveness, genuineness, enforceability or sufficiency of this Agreement
or any of the other Related Documents or for any failure of the Transferor, the
Servicer or the Trustee to perform its obligations hereunder or thereunder.
Neither the Agent nor the Administrative Agent shall be under any obligation to
any Class B Purchaser to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any of the other Related Documents, or to inspect the properties,
books or records of the Transferor, the Servicer, the Trustee or the Trust.
7.4 RELIANCE BY AGENT. The Agent and the Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, written statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the Agent
or the Administrative Agent), independent accountants and other experts selected
by the Agent or the Administrative Agent. The Agent and the Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any of the other Related Documents unless it shall first receive
such advice or concurrence of the Required Class B Purchasers as it deems
appropriate or it shall first be indemnified to its satisfaction by the Class B
Purchasers or of the Committed Class B Purchasers against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Agent and the Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
or any of the other Related Documents in accordance with a request of the
Required Class B Owners and the Required Class B Purchasers and such request and
any action taken or failure to act pursuant thereto shall be binding upon all
present and future Class B Purchasers.
7.5 NOTICES. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any breach of this Agreement or the occurrence of
any Pay Out Event or any Termination Event unless the Agent has received notice
from the Transferor, the Servicer, the Trustee or any Class B Purchaser
referring to this Agreement, describing such event. In the event that the Agent
receives such a notice, the Agent promptly shall give notice thereof to the
Class B Owners and the Required Class B Purchasers. The Agent shall take such
action with respect to such event as shall be reasonably directed by the
Required Class B Owners and the Required Class B Purchasers; PROVIDED that
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such event as it shall deem advisable in the best
interests of the Class B Purchasers.
7.6 NON-RELIANCE ON AGENT AND OTHER CLASS B PURCHASERS. Each
Class B Purchaser expressly acknowledges that neither the Agent nor the
Administrative Agent nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by the Agent or the Administrative Agent
hereafter taken, including any review of the affairs of the Transferor, the
Servicer, the Trustee or the Trust shall be deemed to constitute any
representation or warranty by the Agent or the Administrative Agent to any Class
B Purchaser. Each Class B Purchaser represents to the Agent and the
Administrative Agent that it has, independently and without reliance upon the
Agent or any other Class B Purchaser, and based on such documents and
information as it has deemed appropriate,
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made its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of the Trust, the
Trustee, the Transferor and the Servicer and made its own decision to purchase
its Class B Certificate hereunder and enter into this Agreement. Each Class B
Purchaser also represents that it will, independently and without reliance upon
the Agent or the Administrative Agent or any other Class B Purchaser, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own analysis, appraisals and decisions in taking or not
taking action under this Agreement or any of the other Related Documents, and
to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Trust, the Trustee, the Transferor and the Servicer.
Except for notices, reports and other documents received by the Agent under
Section 5 hereof, the Agent shall not have any duty or responsibility to
provide any Class B Purchaser with any credit or other information concerning
the business, operations, property, condition (financial or otherwise),
prospects or creditworthiness of the Trust, the Trustee, the Transferor or the
Servicer which may come into the possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
7.7 INDEMNIFICATION. The Committed Class B Purchasers agree
to indemnify the Agent and the Administrative Agent in its capacity as such
(without limiting the obligation of the Transferor, the Trust or the Servicer to
reimburse the Agent or the Administrative Agent for any such amounts), ratably
according to their respective Commitment Percentages, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
obligations under this Agreement, including the Class B Invested Amount) be
imposed on, incurred by or asserted against the Agent or the Administrative
Agent in any way relating to or arising out of this Agreement, or any documents
contemplated by or referred to herein or the transactions contemplated hereby or
any action taken or omitted by the Agent or the Administrative Agent under or in
connection with any of the foregoing; provided that no Class B Purchaser shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of the Agent or the Administrative Agent resulting from its own
gross negligence or willful misconduct. The agreements in this subsection shall
survive the payment of the obligations under this Agreement, including the Class
B Invested Amount.
7.8 AGENTS IN THEIR INDIVIDUAL CAPACITIES. The Agent, the
Administrative Agent and their Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Trust, the Trustee,
the Servicer and the Transferor as though the Agent and the Administrative Agent
were not the agents hereunder. Each Class B Purchaser acknowledges that Credit
Suisse may act (i) as administrator and agent for one or more Structured
Purchasers and in such capacity acts and may continue to act on behalf of each
such Structured Purchaser in connection with its business and (ii) as the agent
for certain financial institutions under the liquidity and credit enhancement
agreements relating to this Agreement to which any such Structured Purchaser is
party and in various other capacities relating to the business of any such
Structured Purchaser under various agreements. Credit Suisse in its capacity as
the Agent shall not, by virtue of its acting in any such other capacities, be
deemed to have duties or responsibilities hereunder or be held to a standard of
care in connection with the performance of its duties as the Agent or the
Administrative Agent other than as expressly provided in this Agreement. Credit
Suisse may act
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as the Agent and the Administrative Agent without regard to and without
additional duties or liabilities arising from its role as such administrator or
agent or arising from its acting in any such other capacity.
7.9 SUCCESSOR AGENT. (a) The Agent may resign as Agent upon
ten days' notice to the Class B Purchasers, the Trustee, the Transferor and the
Servicer with such resignation becoming effective upon a successor agent
succeeding to the rights, powers and duties of the Agent pursuant to this
subsection 7.9(a). If the Agent shall resign as Agent under this Agreement, then
the Required Class B Purchasers and the Required Class B Owners shall appoint
from among the Committed Class B Purchasers a successor agent for the Class B
Purchasers. The successor agent shall succeed to the rights, powers and duties
of the Agent, and the term "Agent" shall mean such successor agent effective
upon its appointment, and the former Agent's rights, powers and duties as Agent
shall be terminated, without any other or further act or deed on the part of
such former Agent or any of the parties to this Agreement. After the retiring
Agent's resignation as Agent, the provisions of this Section 7 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
(b) The Administrative Agent may resign as Administrative
Agent upon ten days' notice to the Class B Purchasers, the Class A Purchasers
(as defined in the Class A Certificate Purchase Agreement), the Trustee, the
Transferor and the Servicer with such resignation becoming effective upon a
successor agent succeeding to the rights, powers and duties of the
Administrative Agent pursuant to this subsection 7.9(b). If the Administrative
Agent shall resign as Administrative Agent under this Agreement, then the
Required Class B Purchasers and the Required Class B Owners shall appoint from
among the Committed Class B Purchasers hereunder or under the Class B
Certificate Purchase Agreement a successor Administrative Agent of the Class B
Certificateholders and Class A Certificateholders as provided in the Supplement;
PROVIDED that no such appointment shall be effective unless such successor is
also appointed as successor Administrative Agent under the Class A Certificate
Purchase Agreement. The successor agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term "Administrative Agent" shall
mean such successor agent effective upon its appointment, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement. After the
retiring Administrative Agent's resignation as Administrative Agent, the
provisions of this Section 7 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement.
SECTION 8. SECURITIES LAWS; TRANSFERS; TAX TREATMENT
8.1 TRANSFERS OF CLASS B CERTIFICATES. (a) Each Class B Owner
agrees that the beneficial interest in the Class B Certificates purchased by it
will be acquired for investment only and not with a view to any public
distribution thereof, and that such Class B Owner will not offer to sell or
otherwise dispose of any Class B Certificate acquired by it (or any interest
therein) in violation of any of the registration requirements of the Act or any
applicable state or other securities laws. Each Class B Owner acknowledges that
it has no right to require the Transferor to register, under the Act or any
other securities law, the Class B Certificates (or the beneficial interest
therein) acquired by it pursuant to this Agreement or any Transfer Supplement.
Each Class B Owner hereby
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confirms and agrees that in connection with any transfer or syndication by it of
an interest in the Class B Certificates, such Class B Owner has not engaged and
will not engage in a general solicitation or general advertising including
advertisements, articles, notices or other communications published in any
newspaper, magazine or similar media or broadcast over radio or television, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Each initial Class B Owner agrees with the
Transferor that it will execute and deliver to the Transferor, the Servicer and
the Trustee on or before the Closing Date a letter in the form attached hereto
as EXHIBIT A (an "INVESTMENT LETTER") with respect to the purchase by such Class
B Owner of a beneficial interest in the Class B Certificates.
(b) Each initial purchaser of a Class B Certificate
or any interest therein and any Assignee thereof or Participant therein shall
certify to the Transferor, the Servicer and the Trustee that it is either (A)(i)
a citizen or resident of the United States, (ii) a corporation or other entity
organized in or under the laws of the United States or any political subdivision
thereof which, if such entity is a tax-exempt entity, recognizes that payments
with respect to the Class B Certificates may constitute unrelated business
taxable income or (iii) a person not described in (i) or (ii) whose income from
the Class B Certificates is and will be effectively connected with the conduct
of a trade or business within the United States (within the meaning of the Code)
and whose ownership of any interest in a Class B Certificate will not result in
any withholding obligation with respect to any payments with respect to the
Class B Certificates by any Person (other than withholding, if any, under
Section 1446 of the Code) and who will furnish to the Servicer and the Trustee,
and to the Class B Owner making the Transfer a properly executed U.S. Internal
Revenue Service Form 4224 (and to agree (to the extent legally able) to provide
a new Form 4224 upon the expiration or obsolescence of any previously delivered
form and comparable statements in accordance with applicable United States laws)
or (B) an estate or trust the income of which is includible in gross income for
United States federal income tax purposes.
(c) Any sale, transfer, assignment, participation,
pledge, hypothecation or other disposition (a "TRANSFER") of a Class B
Certificate or any interest therein may be made only in accordance with this
Section 8.1 and in accordance with and subject to the applicable limitations set
forth in Section 6.18 of the Pooling and Servicing Agreement. Any Transfer of an
interest in a Class B Certificate, a Commitment or any Noncommitted Purchaser
Percentage, when combined with any substantially concurrent Transfers hereunder
between the same parties and any substantially concurrent Transfer of an
interest in a Class A Certificate or a Commitment or Noncommitted Purchaser
Percentage (as such terms are defined for purposes of the Class A Certificate
Purchase Agreement) between the same parties, shall be in respect of (i) in the
case of a Committed Class B Purchaser, at least $5,000,000 in the aggregate,
which may be composed of any one or more of (A) Class B Invested Amount, (B) to
the extent in excess of the Class B Invested Amount subject to such Transfer,
Commitment hereunder, (C) Class A Invested Amount, and (D) to the extent in
excess of the Class A Invested Amount subject to such concurrent Transfer,
Commitment under the Class A Certificate Purchase Agreement, or (ii) in the case
of a Noncommitted Class B Purchaser, at leat $5,000,000 in the aggregate, which
may be composed of any one or more of (A) Class B Invested Amount, (B) to the
extent in excess of the Class B Invested Amount subject to such Transfer, the
product of the Noncommitted Purchaser Percentage subject to such Transfer times
the aggregate Commitments hereunder, (C) Class A Invested Amount and (D) to the
extent in excess of the Class A Invested Amount subject to such concurrent
Transfer, the
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product of the Noncommitted Purchaser Percentage under the Class A Certificate
Purchase Agreement subject to such Transfer times the aggregate Commitments
under the Class A Certificate Purchase Agreement. Any Transfer of an interest in
a Class B Certificate otherwise permitted by this Section 8.1 will be permitted
only if it consists of a PRO RATA percentage interest in all payments made with
respect to the Class B Purchaser's beneficial interest in such Class B
Certificate. No Class B Certificate or any interest therein may be Transferred
by assignment or Participation to any Person (each, a "TRANSFEREE") unless prior
to the transfer the Transferee shall have executed and delivered to the Agent
and the Transferor an Investment Letter and, except for any Transfer to an
Eligible Transferee, each of the Transferor and the Servicer shall have granted
its prior consent thereto; PROVIDED that in the event of a Transfer from a Class
B Purchaser to one of its Affiliates or to a Person which, prior to such
Transfer, is a Class B Purchaser of all of its interest in the Class B
Certificates the transferring Class B Purchaser shall provide the Transferor and
the Servicer with five (5) Business Days prior written notice thereof and the
prior consent of the Transferor and the Servicer shall not be required for such
Transfer.
Each of the Transferor and the Servicer authorizes
each Class B Purchaser to disclose to any Transferee and Support Bank and any
prospective Transferee or Support Bank any and all financial information in the
Class B Purchaser's possession concerning the Trust, the Transferor or the
Servicer which has been delivered to the Agent or such Class B Purchaser by or
on behalf of the Trust or the Transferor or the Servicer pursuant to this
Agreement (including information obtained pursuant to rights of inspection
granted hereunder) or the other Related Documents or which has been delivered to
such Class B Purchaser by or on behalf of the Trust, the Transferor or the
Servicer in connection with such Class B Purchaser's credit evaluation of the
Trust, the Transferor or the Servicer prior to becoming a party to, or
purchasing an interest in this Agreement or the Class B Certificates; PROVIDED
that prior to any such disclosure, such Transferee or Support Bank or
prospective Transferee or Support Bank shall have executed an agreement agreeing
to be bound by the provisions of Section 6.2 hereof.
(d) Each Class B Purchaser may, in accordance with
applicable law, at any time grant participations in all or part of its interest
in its Commitment or in the Class B Certificates including the payments due to
it under this Agreement and the Pooling and Servicing Agreement (each, a
"PARTICIPATION") to any Person (each, a "PARTICIPANT"); PROVIDED, HOWEVER, that
no Participation shall be granted to any Person unless and until the Agent shall
have consented thereto and the conditions to Transfer specified in this
Agreement and the Pooling and Servicing Agreement, including in subsection
8.1(c) hereof and Section 6.18 of the Pooling and Servicing Agreement, shall
have been satisfied and that such Participation consists of a PRO RATA
percentage interest in all payments made with respect to such Class B
Purchaser's beneficial interest (if any) in the Class B Certificates. In
connection with any such Participation, the Agent shall maintain a register of
each Participant and the amount of each Participation. Each Class B Purchaser
hereby acknowledges and agrees that (A) any such Participation will not alter or
affect such Class B Purchaser's direct obligations hereunder, and (B) neither
the Trustee, the Transferor nor the Servicer shall have any obligation to have
any communication or relationship with any Participant. Each Class B Purchaser
and each Participant shall comply with the provisions of subsection 2.5(c). No
Participant shall be entitled to Transfer all or any portion of its
Participation, without the prior written consent of the Agent. The Transferor
shall be obligated to indemnify a Participant for all amounts owing to it under
Sections 2.4, 2.5 and 2.7 as if such Participant were a Class B Purchaser
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hereunder, but, in the case of Sections 2.4 and 2.5, only in an amount not in
excess of the amounts which would have been owing thereunder had such
Participation not been granted and, in the case of Section 2.5, provided that
such Participant has complied with the provisions of subsection 2.5(c) as if it
were a Class B Purchaser. Each Class B Purchaser shall give the Agent notice of
the consummation of any sale by it of a Participation and the Agent (upon
receipt of notice from the related Class B Purchaser) shall promptly notify the
Transferor, the Servicer and the Trustee.
(e) Each Class B Purchaser may, with the consent of
the Agent and in accordance with applicable law, sell or assign (each, an
"ASSIGNMENT"), to any Person (each, an "ASSIGNEE") which is an Eligible Assignee
(or is otherwise consented to in writing by the Transferor and the Servicer) all
or any part of its interest in its Commitment or in the Class B Certificates and
its rights and obligations under this Agreement and the Pooling and Servicing
Agreement pursuant to an agreement substantially in the form attached hereto as
EXHIBIT C hereto (a "TRANSFER SUPPLEMENT"), executed by such Assignee and the
Class B Purchaser and delivered to the Agent for its acceptance and consent;
PROVIDED, HOWEVER, that no such assignment or sale shall be effective unless and
until the conditions to Transfer specified in this Agreement and the Pooling and
Servicing Agreement, including in subsection 8.1(c) hereof and Section 6.18 of
the Pooling and Servicing Agreement, shall have been satisfied; and PROVIDED
FURTHER, HOWEVER, that no such assignment or sale to an Assignee which would
become a Committed Class B Purchaser shall be effective unless either (i) the
commercial paper notes or the short-term obligations of such Assignee are rated
at least A-1 by Standard & Poor's and P-1 by Xxxxx'x or (ii) such assignment or
sale shall have been consented to by all Class B Purchasers. From and after the
effective date determined pursuant to such Transfer Supplement, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such Transfer
Supplement, have the rights and obligations of a Class B Purchaser hereunder as
set forth therein and (y) the transferor Class B Purchaser shall, to the extent
provided in such Transfer Supplement, be released from its Commitment and other
obligations under this Agreement; PROVIDED, HOWEVER, that after giving effect to
each such Assignment, the obligations released by any such Class B Purchaser
shall not exceed the obligations assumed by an Assignee or Assignees. Such
Transfer Supplement shall be deemed to amend this Agreement to the extent, and
only to the extent, necessary to reflect the addition of such Assignee and the
resulting adjustment of Percentage Interests, Noncommitted Purchaser Percentages
or Commitment Percentages arising from the Assignment. Upon its receipt of a
duly executed Transfer Supplement, the Agent shall on the effective date
determined pursuant thereto give notice of such acceptance to the Transferor,
the Servicer and the Trustee and the Servicer will provide notice thereof to
each Rating Agency (if required).
Upon surrender for registration of transfer of a
Class B Purchaser's beneficial interest in the Class B Certificates (or portion
thereof) and delivery to the Transferor and the Trustee of an Investment Letter,
executed by the registered owner (and the beneficial owner if it is a Person
other than the registered owner), and receipt by the Trustee of a copy of the
duly executed related Transfer Supplement and such other documents as may be
required under this Agreement, such beneficial interest in the Class B
Certificates (or portion thereof) shall be transferred in the records of the
Trustee and the Agent and, if requested by the Assignee, new Class B
Certificates shall be issued to the Assignee and, if applicable, the transferor
Class B Purchaser in amounts reflecting such Transfer as provided in the Pooling
and Servicing Agreement. Such Transfers of Class B Certificates (and interests
therein) shall be subject to this Section 8.1 in lieu of any regulations which
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may be prescribed under Section 6.3 of the Pooling and Servicing Agreement.
Successive registrations of Transfers as aforesaid may be made from time to time
as desired, and each such registration of a transfer to a new registered owner
shall be noted on the Certificate Register.
(f) Each Class B Purchaser may pledge its interest
in the Class B Certificates to any Federal Reserve Bank as collateral in
accordance with applicable law.
(g) Any Class B Purchaser shall have the option
to change its Investing Office, PROVIDED that such Class B Purchaser shall have
prior to such change in office complied with the provisions of subsection 2.5(c)
and PROVIDED FURTHER that such Class B Purchaser shall not be entitled to any
amounts otherwise payable under Section 2.4 or 2.5 resulting solely from such
change in office unless such change in office was mandated by applicable law or
by such Class B Purchaser's compliance with the provisions of this Agreement.
(h) Each Affected Party which, on the date it became
an Affected Party, was an Eligible Assignee or was consented to by the
Transferor and the Servicer shall be entitled to receive additional payments
pursuant to Sections 2.4, 2.5 and 2.7 hereof as though it were a Class B
Purchaser and such Section applied to its interest in or commitment to acquire
an interest in the Class B Certificates; PROVIDED that such Affected Party shall
not be entitled to additional payments pursuant to (i) Section 2.4 by reason of
Regulatory Changes which occurred prior to the date it became an Affected Party
or (ii) Section 2.5 attributable to its failure to satisfy the requirements of
subsection 2.5(c) as if it were a Class B Purchaser.
(i) If any increased amounts referred to in Sections
2.4 or 2.5 owing to any Affected Party are not eliminated or reduced by the
designation of a different Investing Office or other actions taken pursuant to
subsection 2.4(c) and payment thereof hereunder is not waived by such Affected
Party within 45 days after the Transferor or the Servicer shall have given
notice to such Affected Party, its related Class B Purchaser and the Agent of
the intent of the Transferor to exercise its rights under this sentence, the
Transferor shall have the right to replace such related Class B Purchaser
hereunder with a Replacement Purchaser; PROVIDED, that (x) such related Class B
Purchaser shall not be replaced hereunder until such related Class B Purchaser
has been paid in full all amounts owed to it hereunder and with respect to its
interest in the Class B Certificates and (y) if the related Class B Purchaser is
the Agent or the Administrative Agent or, unless otherwise agreed by the Agent
and the Administrative Agent, a Structured Purchaser sponsored or administered
by the Administrative Agent or the Agent (in its individual capacity), a
replacement Agent and Administrative Agent shall have been appointed in
accordance with Section 7.9 and the Agent and the Administrative Agent to be
replaced shall have been paid in full all amounts owed to it hereunder.
(j) Each Affected Party claiming increased amounts
described in Sections 2.4 or 2.5 shall furnish, through its related Structured
Purchaser, to the Trustee, the Agent, the Servicer and the Transferor a
certificate setting forth any action taken by such Affected Party to reduce or
eliminate such increased amounts pursuant to subsection 2.4(c) and the basis and
amount of each request by such Affected Party for any such amounts referred to
in Sections 2.4 or 2.5, such certificate to be conclusive with respect to the
factual information set forth therein absent manifest error.
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(k) In the event that a Committed Class B Purchaser
was at any time a Defaulting Purchaser or is a Downgraded Purchaser, the
Transferor shall have the right and to replace such Class B Purchaser hereunder
with a Replacement Purchaser, and the Agent, acting at the request of the
Required Class B Purchasers or the Required Class A Owners, shall have the right
to replace such Committed Class B Purchaser with a Replacement Purchaser which
is an Eligible Assignee or is otherwise reasonably acceptable to the Transferor,
which Replacement Purchaser shall succeed to the rights of such Committed Class
B Purchaser under this Agreement, and such Committed Class B Purchaser shall
assign its beneficial interest in the Class B Certificates to such Replacement
Purchaser in accordance with the provisions of this Section 8.1; PROVIDED, that
(A) such Committed Class B Purchaser shall not be replaced hereunder with a new
investor until such Committed Class B Purchaser has been paid in full its
Percentage Interest of the Class B Investor Principal Balance and all accrued
and unpaid Yield (including any Liquidation Fee determined for the replacement
date) thereon by such new investor and all other amounts (including all amounts
owing under Sections 2.4 and 2.5) owed to it and to all Participants and
Affected Parties with respect to such Class B Purchaser pursuant to this
Agreement and (ii) if the Class B Purchaser to be replaced is the Agent or the
Administrative Agent or, unless the Agent and the Administrative Agent otherwise
agree, a Structured Purchaser sponsored or administered by the Administrative
Agent or the Agent (in its individual capacity), a replacement Agent or
Administrative Agent, as the case may be, shall have been appointed in
accordance with Section 7.9 and the Agent or Administrative Agent, as the case
may be, to be replaced shall have been paid all amounts owing to it as Agent or
Administrative Agent, as the case may be, pursuant to this Agreement. For
purposes of this subsection, a Committed Class B Purchaser shall be a
"DOWNGRADED PURCHASER" if and so long as the credit rating assigned to its
short-term obligations by Xxxxx'x or Standard & Poor's on the date on which it
became a party to this Agreement shall have been reduced or withdrawn.
8.2 TAX CHARACTERIZATION OF THE CLASS B CERTIFICATES. It is
the intention of the parties hereto that the Class B Certificates be treated for
tax purposes as indebtedness. In the event that the Class B Certificates are not
so treated, it is the intention of the parties that such Class B Certificates be
treated as an interest in a partnership that owns the Receivables. In the event
that the Class B Certificates are treated as an interest in a partnership, it is
the intention of the parties that interest payable on such Class B Certificates
be treated as guaranteed payment and, if for any reason it is not so treated,
that the holders of such Class B Certificates be specially allocated gross
interest income equal to the interest accrued during each applicable accrual
period on such Class B Certificates.
SECTION 9. MISCELLANEOUS
9.1 AMENDMENTS AND WAIVERS. This Agreement may not be
amended, supplemented or modified nor may any provision hereof be waived
except in accordance with the provisions of this Section 9.1. With the written
consent of the Required Class B Owners and the Required Class B Purchasers,
the Agent, the Transferor and the Servicer may, from time to time, enter into
written amendments, supplements, waivers or modifications hereto for the
purpose of adding any provisions to this Agreement or changing in any manner
the rights of any party hereto or waiving, on such terms and conditions as may
be specified in such instrument, any of the requirements of this Agreement;
PROVIDED, HOWEVER, that no such amendment, supplement, waiver or modification
shall (i) reduce the amount of or extend the maturity of any Class B
Certificate or reduce the rate or extend
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the time of payment of interest thereon, or reduce or alter the timing of any
other amount payable to any Class B Purchaser hereunder or under the Supplement,
in each case without the consent of the Class B Purchaser affected thereby, (ii)
amend, modify or waive any provision of this Section 9.1, or, if such amendment
would have a material adverse effect on the Class B Purchasers, the definition
of "Class B Invested Amount", or reduce the percentage specified in the
definition of Required Class B Owners or Required Class B Purchasers, in each
case without the written consent of all Class B Purchasers or (iii) amend,
modify or waive any provision of Section 7 of this Agreement without the written
consent of the Agent, the Administrative Agent, the Required Class B Owners and
Required Class B Purchasers. Any waiver of any provision of this Agreement shall
be limited to the provisions specifically set forth therein for the period of
time set forth therein and shall not be construed to be a waiver of any other
provision of this Agreement.
Each party hereto agrees, at the request of the Agent from
time to time to enter into or to consent to, as applicable, any amendments or
other modifications to this Agreement or the Related Documents, other than those
requiring the consent of all Class B Purchasers as provided above in this
subsection, and the Transferor agrees to cause its Certificate of Incorporation
and Bylaws to be amended or otherwise modified, as shall reasonably be
determined by the Agent to be required for any initial Class B Purchaser which
is a Structured Purchaser to obtain or maintain an informal rating of the Class
B Certificates which will permit such Structured Purchaser's commercial paper
notes to maintain at least the rating from Standard & Poor's and Xxxxx'x as in
effect immediately prior to such Structured Purchaser's becoming a Class B
Purchaser after giving effect to its initial purchase of the Class B
Certificates and to purchases from time to time by such Structured Purchaser of
VFC Additional Class B Invested Amounts as contemplated by this Agreement,
without giving effect to any increase in any letter of credit or other
enhancement provided to such Structured Purchaser (other than liquidity support
provided to such Structured Purchaser by Affected Parties).
The Administrative Agent may cast any vote or give any
direction under the Pooling and Servicing Agreement on behalf of the Class B
Certificateholders if it has been directed to do so by (i) the Required Class B
Owners, (ii) the Required Class B Purchasers, and (iii) by the Class A
Purchasers (as defined in the Class A Certificate Purchase Agreement) required
under the terms of Section 9.1 of the Class A Certificate Purchase Agreement.
9.2 NOTICES. (a) All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy, telegraph or telex), and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered by hand, or, in
the case of mail or telecopy notice, when received, or, in the case of
telegraphic notice, when delivered to the telegraph company, or, in the case of
telex notice, when sent, answer back received, addressed as follows or, with
respect to a Class B Purchaser, as set forth in its respective Joinder
Supplement or Transfer Supplement, or to such other address as may be hereafter
notified by the respective parties hereto:
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The Transferor: Prime II Receivables Corporation
0000 Xxxx Xxxxxxxxx
Xxxxx, Xxxx 00000
Attention: President
Telephone: (000) 000-0000
Telefax: (000) 000-0000
The Servicer: FDS National Bank
0000 Xxxx Xxxxxxxxx
Xxxxx, Xxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telefax: (000) 000-0000
With a copy to:
Federated Department Stores, Inc.
0 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telefax: (000) 000-0000
The Trustee: The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trustee Administration
Department
Telephone: (000) 000-0000
Telefax: (000) 000-0000
The Agent Credit Suisse First Boston, New York Branch
or the Eleven Xxxxxxx Xxxxxx
Xxxxxxxxxxxxxx Xxx Xxxx, Xxx Xxxx 00000
Agent: Attention: Asset Finance Department
Telephone: (000) 000-0000
Telefax: (000) 000-0000
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Moody's:. Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Xxxxxxxxxx Xxxxxxxxxx, 0xx Xxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Standard. Standard & Poor's Ratings Services
& Poor's: 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset-Backed Surveillance Department
Telephone: (000) 000-0000
Telefax: (000) 000-0000
(b) All payments to be made to the Agent or any Class B
Purchaser hereunder shall be made in United States dollars and in immediately
available funds not later than 2:30 p.m. New York City time on the date payment
is due, and, unless otherwise specifically provided herein, shall be made to the
Agent, for the account of one or more of the Class B Purchasers or for its own
account, as the case may be. Unless otherwise directed by the Agent, all
payments to it shall be made by federal wire (ABA #0260-0917-9) and telegraph
name (CR SUISSE NY), to account number 930539-05, reference Prime Credit Card
Master Trust II, Series 1997-1, with telephone notice (including federal wire
number) to the Asset Finance Department of Credit Suisse (212-325-9077).
9.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Agent or any Class B Purchaser,
any right, remedy, power or privilege hereunder or under any of the other
Related Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder or under
any of the other Related Documents preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges provided herein and in the other
Related Documents are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.
9.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the Transferor, the Servicer, the Agent, the
Administrative Agent, the Class B Purchasers, any Assignee and their respective
successors and assigns, except that the Transferor and the Servicer may not
assign or transfer any of their respective rights or obligations under this
Agreement except, as provided herein and in the Pooling and Servicing Agreement,
without the prior written consent of the Required Class B Owners and the
Required Class B Purchasers.
9.5 SUCCESSORS TO SERVICER. (a) In the event that a transfer
of servicing occurs under Article VIII or Article X of the Pooling and Servicing
Agreement, (i) from and after the effective date of such transfer, the Successor
Servicer shall be the successor in all respects to the Servicer and shall be
responsible for the performance of all functions to be performed by the Servicer
from and after such date, except as provided in the Pooling and Servicing
Agreement, and shall be subject to
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all the responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions hereof, and all references in this
Agreement to the Servicer shall be deemed to refer to the Successor Servicer,
and (ii) as of the date of such transfer, the Successor Servicer shall be deemed
to have made with respect to itself the representations and warranties made by
the Servicer in Section 4.2 (in the case of subsection 4.2(a) with appropriate
factual changes); PROVIDED, HOWEVER, that the references to the Servicer
contained in Section 5.1 of this Agreement shall be deemed to refer to the
Servicer with respect to responsibilities, duties and liabilities arising out of
an act or acts, or omission, or an event or events giving rise to such
responsibilities, duties and liabilities and occurring during such time that the
Servicer was Servicer under this Agreement and shall be deemed to refer to the
Successor Servicer with respect to responsibilities, duties and liabilities
arising out of an act or acts, or omission, or an event or events giving rise to
such responsibilities, duties and liabilities and occurring during such time
that the Successor Servicer acts as Servicer under this Agreement; PROVIDED,
HOWEVER, to the extent that an obligation to indemnify the Class B Purchasers
under Section 2.7 arises as a result of any act or failure to act of any
Successor Servicer in the performance of servicing obligations under the Pooling
and Servicing Agreement or the Supplement, such indemnification obligation shall
be of the Successor Servicer and not FDSNB. Upon the transfer of servicing to a
Successor Servicer, such Successor Servicer shall furnish to the Agent copies of
its audited annual financial statements for each of the three preceding fiscal
years or if the Trustee or any other banking institution becomes the Successor
Servicer, such Successor Servicer shall provide, in lieu of the audited
financial statements required in the immediately preceding clause, complete and
correct copies of the publicly available portions of its Consolidated Reports of
Condition and Income as submitted to the Federal Deposit Insurance Corporation
for the two most recent year end periods.
(b) In the event that any Person becomes the
successor to the Transferor pursuant to Article VII of the Pooling and Servicing
Agreement, from and after the effective date of such transfer, such successor to
the Transferor shall be the successor in all respects to the Transferor and
shall be responsible for the performance of all functions to be performed by the
Transferor from and after such date, except as provided in the Pooling and
Servicing Agreement, and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Transferor by the terms and
provisions hereof, and all references in this Agreement to the Transferor shall
be deemed to refer to the successor to the Transferor; PROVIDED, HOWEVER, that
the references to the Transferor contained in Sections 2.5, 2.7 and 5.1 of this
Agreement shall be deemed to refer to Prime II Receivables Corporation with
respect to responsibilities, duties and liabilities arising out of an act or
acts, or omission, or an event or events giving rise to such responsibilities,
duties and liabilities and occurring during such time that Prime II Receivables
Corporation was Transferor under this Agreement and shall be deemed to refer to
the successor to Prime II Receivables Corporation as Transferor with respect to
responsibilities, duties and liabilities arising out of an act or acts, or
omission, or an event or events giving rise to such responsibilities, duties and
liabilities and occurring during such time that the successor to Prime II
Receivables Corporation acts as Transferor under this Agreement.
9.6 COUNTERPARTS. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument.
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9.7 SEVERABILITY. Any provisions of this Agreement which are
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provisions in any other jurisdiction.
9.8 INTEGRATION. This Agreement and the Class B Fee Letter
represent the agreement of the Agent, the Administrative Agent, the Transferor,
the Servicer and the Class B Purchasers with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by the Class B Purchasers, the Agent or the Administrative Agent relative to
subject matter hereof not expressly set forth or referred to herein or therein.
FDSNB shall retain a copy of each of the above-referenced agreements as part of
its official records.
9.9 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.10 TERMINATION. This Agreement shall remain in full force
and effect until the earlier to occur of (a) payment in full of the Class B
Repayment Amount and all other amounts payable to the Class B Purchasers, the
Agent and the Administrative Agent hereunder and the termination of all
Commitments and (b) the Series 1997-1 Termination Date; PROVIDED, HOWEVER, that
if the Class B Repayment Amount and all other amounts payable to the Class B
Purchasers hereunder are paid in full and all Commitments have terminated prior
to the Series 1997-1 Termination Date, the Agent shall notify the Trustee that
thereafter all amounts otherwise payable to the Class B Purchasers hereunder
shall be payable to the Transferor or any Person designated thereby; and
PROVIDED, FURTHER, that the provisions of Sections 2.4, 2.5, 2.6, 2.7 and 7.7
and subsections 9.12(a) and 9.12(b) shall survive termination of this Agreement
and amounts payable to the Class B Purchasers thereunder shall remain payable to
the Class B Purchasers.
9.11 ACTION BY SERVICER. Wherever the Trustee or the Trust is
authorized or required to take an action or give a notice pursuant to this
Agreement and if the Trustee fails timely to take such action or give such
notice pursuant to this Agreement after being requested to do so by the
Servicer, the Servicer shall take such action or give such notice on behalf of
the Trustee or the Trust.
9.12 LIMITED RECOURSE; NO PROCEEDINGS. (a) The obligations of
the Transferor and the Servicer under this Agreement are several (except as
specifically provided herein) and are solely the corporate obligations of the
Transferor and the Servicer. No recourse shall be had for the payment of any fee
or other obligation or claim arising out of or relating to this Agreement or any
other agreement, instrument, document or certificate executed and delivered or
issued by the Transferor and the Servicer or any officer of any of them in
connection therewith, against any stockholder, employee, officer, director or
incorporator of the Transferor or the Servicer, and neither the Agent nor any
Class B Purchaser shall look to any property or assets of the Transferor, other
than to (a) amounts payable to the Transferor under the Receivables Purchase
Agreement, any Supplement or the Pooling and Servicing Agreement and (b) any
other assets of the Transferor not pledged to third parties or otherwise
encumbered in any manner permitted by the Transferor's
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Certificate of Incorporation. Each Class B Purchaser and the Agent hereby agrees
that to the extent such funds are insufficient or unavailable to pay any amounts
owing to it by the Transferor pursuant to this Agreement, prior to the earlier
of the Trust Termination Date or the commencement of a bankruptcy or insolvency
proceeding by or against the Transferor, it shall not constitute a claim against
the Transferor. Nothing in this paragraph shall limit or otherwise affect the
liability of the Servicer with respect to any amounts owing by it hereunder or
the right of the Agent or any Class B Purchaser to enforce such liability
against the Servicer or any of its assets.
(b) Each of the Transferor, the Servicer and the
Trustee hereby agrees that it shall not institute or join against any Structured
Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other proceeding under any federal or state bankruptcy or similar
law, for one year and a day after the latest maturing commercial paper note,
medium term note or other debt security issued by such Structured Lender is
paid. The foregoing shall not limit the Transferor's, the Servicer's or the
Trustee's right to file any claim in or otherwise take any action with respect
to any such bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding that was instituted by any Person other than the Transferor, the
Servicer or the Trustee.
9.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement, the purchase of the Class B
Certificates hereunder and the termination of this Agreement.
9.14 SUBMISSION TO JURISDICTION; WAIVERS. EACH OF THE
TRANSFEROR, THE ADMINISTRATIVE AGENT, THE SERVICER, THE TRUST, THE TRUSTEE, THE
AGENT AND EACH CLASS B PURCHASER HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT TO WHICH IT IS A PARTY,
OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE
COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT
IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS
BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR
CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH
-47-
51
ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY
THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY
SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO SUCH
PARTY AT ITS ADDRESS SET FORTH IN SECTION 9.2 OR AT SUCH
OTHER ADDRESS OF WHICH THE AGENT SHALL HAVE BEEN NOTIFIED
PURSUANT THERETO; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION.
9.15 WAIVERS OF JURY TRIAL. THE TRANSFEROR, THE SERVICER, THE
TRUST, THE TRUSTEE, THE AGENT AND THE CLASS B PURCHASERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER DOCUMENT OR INSTRUMENT RELATED HERETO AND FOR ANY
COUNTERCLAIM THEREIN.
-48-
52
IN WITNESS WHEREOF, the parties hereto have caused this
Certificate Purchase Agreement to be duly executed by their respective officers
as of the day and year first above written.
PRIME II RECEIVABLES CORPORATION,
as Transferor
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman of the Board
FDS NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH,
as Agent and as Administrative Agent
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Associate
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate
53
EXHIBIT A
---------
FORM OF INVESTMENT LETTER
-------------------------
[Date]
Prime II Receivables Corporation
0000 Xxxx Xxxxxxxxx
Xxxxx, Xxxx 00000
Attention: President
Re Prime Credit Card Master Trust II Class B
Variable Funding Certificates, Series 1997-1
--------------------------------------------
Ladies and Gentlemen:
This letter (the "Investment Letter") is delivered by the
undersigned (the "Purchaser") pursuant to subsection 8.1(a) of the Class B
Certificate Purchase Agreement dated as of January 22, 1997 (as in effect, the
"Certificate Purchase Agreement"), among the Transferor, FDS National Bank, as
Servicer, the Class B Purchasers parties thereto and Credit Suisse First Boston,
New York Branch, as Agent and Administrative Agent. Capitalized terms used
herein without definition shall have the meanings set forth in the Certificate
Purchase Agreement. The Purchaser represents to and agrees with the Transferor
as follows:
(a) The Purchaser is authorized [to enter into the Certificate
Purchase Agreement and to perform its obligations thereunder and to
consummate the transactions contemplated thereby] [to purchase a
participation in obligations under the Certificate Purchase Agreement].
(b) The Purchaser has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of its investment in the Class B Certificates and is
able to bear the economic risk of such investment. The Purchaser has
been afforded the opportunity to ask such questions as it deems
necessary to make an investment decision, and has received all
information it has requested in connection with making such investment
decision. The Purchaser has, independently and without reliance upon
the Agent, the Administrative Agent or any other Class B Purchaser, and
based on such documents and information as it has deemed appropriate,
made is own appraisal of and investigation into the business,
operations, property, financial and other condition and
creditworthiness of the Trust, the Transferor and the Servicer and made
its own decision to purchase its interest in the Class B Certificates,
and will, independently and without reliance upon the Agent, the
Administrative Agent or any other Class B Purchaser, and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own analysis, appraisals and decisions
54
in taking or not taking action under the Certificate Purchase
Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and
other condition and creditworthiness of the Trust, the Transferor and
the Servicer.
(c) The Purchaser is an "accredited investor", as defined in
Rule 501, promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), or is a sophisticated institutional investor. The
Purchaser understands that the offering and sale of the Class B
Certificates has not been and will not be registered under the
Securities Act and has not and will not be registered or qualified
under any applicable "Blue Sky" law, and that the offering and sale of
the Class B Certificate has not been reviewed by, passed on or
submitted to any federal or state agency or commission, securities
exchange or other regulatory body.
(d) The Purchaser is acquiring an interest in Class B
Certificates without a view to any distribution, resale or other
transfer thereof except, with respect to any Class B Purchaser Interest
or any interest or participation therein, as contemplated in the
following sentence. The Purchaser will not resell or otherwise transfer
any interest or participation in the Class B Purchaser Interest, except
in accordance with Sections 8.1 of the Certificate Purchase Agreement
and (i) in a transaction exempt from the registration requirements of
the Securities Act of 1933, as amended, and applicable state securities
or "blue sky" laws; (ii) to the Transferor or any affiliate of the
Transferor; or (iii) to a person who the Purchaser reasonably believes
is a qualified institutional buyer (within the meaning thereof in Rule
144A under the Securities Act) that is aware that the resale or other
transfer is being made in reliance upon Rule 144A. In connection
therewith, the Purchaser hereby agrees that it will not resell or
otherwise transfer the Class B Certificates or any interest therein
unless the purchaser thereof provides to the addressee hereof a letter
substantially in the form hereof.
[(e) The Purchaser hereby certifies to the Transferor, the
Servicer and the Trustee that it has neither acquired nor will it sell,
trade or transfer any interest in a Class B Certificate or cause an
interest in a Class B Certificate to be marketed on or through an
"established securities market" within the meaning of Section
7704(b)(1) of the Internal Revenue Code of 1986, as amended (the
"Code") and any proposed, temporary or final treasury regulation
thereunder, including, without limitation, an over-the-counter-market
or an interdealer quotation system that regularly disseminates firm buy
or sell quotations. In addition, the Purchaser hereby certifies that it
is not and, for so long as it holds any interest in a Class B
Certificate will not become a partnership, Subchapter S corporation or
grantor trust for U.S. federal income tax purposes. The Purchaser
acknowledges that the opinion of counsel to the effect that the Trust
will not be treated as a publicly traded partnership taxable as a
corporation is dependent in part on the accuracy of the certifications
described in this paragraph.][To be included only if required by
Section 6.18 of the Pooling and Servicing Agreement.]
A-2
55
[(e)][(f)] This Investment Letter has been duly executed and
delivered and constitutes the legal, valid and binding obligation of
the Purchaser, enforceable against the Purchaser in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable
principles affecting the enforcement of creditors' rights generally and
general principles of equity.
Very truly yours,
[NAME OF PURCHASER]
By:
---------------------------------
Name:
Title:
A-3
56
EXHIBIT B
---------
FORM OF JOINDER SUPPLEMENT
JOINDER SUPPLEMENT, dated as of the date set forth in Item 1
of Schedule I hereto, among Prime II Receivables Corporation (the "TRANSFEROR"),
the Class B Purchaser set forth in Item 2 of Schedule I hereto (the "ADDITIONAL
CLASS B PURCHASER"), and Credit Suisse First Boston, New York Branch, as Agent
for the Class B Purchasers under, and as defined in, the Certificate Purchase
Agreement described below (in such capacity, the "AGENT").
W I T N E S S E T H:
WHEREAS, this Supplement is being executed and delivered in
accordance with subsection 2.2(d) of the Class B Certificate Purchase Agreement,
dated as of January 22, 1997, among the Transferor, FDS National Bank, as
Servicer, the Class B Purchasers parties thereto, the Agent and Credit Suisse
First Boston, New York Branch, as Administrative Agent (as from time to time
amended, supplemented or otherwise modified in accordance with the terms
thereof, the "CERTIFICATE PURCHASE AGREEMENT"; unless otherwise defined herein,
terms defined in the Certificate Purchase Agreement are used herein as therein
defined); and
WHEREAS, the Additional Class B Purchaser (if it is not
already a Class B Purchaser party to the Certificate Purchase Agreement) wishes
to become a Class B Purchaser party to the Certificate Purchase Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
(a) Upon receipt by the Agent of five counterparts of this
Supplement, to each of which is attached a fully completed Schedule I and
Schedule II, each of which has been executed by the Additional Class B
Purchaser, the Transferor and the Agent, the Agent will transmit to the
Servicer, the Transferor, the Trustee, the Administrative Agent and the
Additional Class B Purchaser a Joinder Effective Notice, substantially in the
form of Schedule III to this Supplement (a "JOINDER EFFECTIVE NOTICE"). Such
Joinder Effective Notice shall be executed by the Agent and shall set forth,
INTER ALIA, the date on which the transfer effected by this Supplement shall
become effective (the "JOINDER EFFECTIVE DATE"). From and after the Joinder
Effective Date, the Additional Class B Purchaser shall be a Class B Purchaser
party to the Certificate Purchase Agreement for all purposes thereof and shall
be a Noncommitted Class B Purchaser or Committed Class B Purchaser, as the case
may be, as set forth in Schedule II hereto, having an initial Noncommitted
Purchaser Percentage or Commited Purchaser Percentage, as applicable, and a
Commitment, if applicable, as set forth in such Schedule II.
(b) Concurrently with the execution and delivery hereof, the
Additional Class B Purchaser will deliver to the Transferor and the Trustee an
executed Investment Letter in the form of Exhibit A to the Certificate Purchase
Agreement.
57
(c) Each of the parties to this Supplement agrees and
acknowledges that at any time and from time to time upon the written request of
any other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Supplement.
(d) By executing and delivering this Supplement, the
Additional Class B Purchaser confirms to and agrees with the Agent, the
Administrative Agent and the Class B Purchasers as follows: (i) neither the
Agent, the Administrative Agent nor any other Class B Purchaser makes any
representation or warranty or assumes any responsibility with respect to any
statements, warranties or representations made in or in connection with the
Certificate Purchase Agreement (other then representations or warranties made by
such respective parties) or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Certificate Purchase Agreement or any
other instrument or document furnished pursuant thereto, or with respect to the
Trust, the financial condition of the Servicer, the Transferor or the Trustee,
or the performance or observance by the Servicer, the Transferor or the Trustee
of any of their respective obligations under the Certificate Purchase Agreement
or the Pooling and Servicing Agreement or any other instrument or document
furnished pursuant hereto; (ii) the Additional Class B Purchaser confirms that
it has received a copy of such documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Supplement; (iii) the Additional Class B Purchaser will, independently and
without reliance upon the Agent, the Administrative Agent or any other Class B
Purchaser and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Certificate Purchase Agreement; (iv) each Purchasing
Class B Purchaser appoints and authorizes the Agent and the Administrative Agent
to take such action as agent on its behalf and to exercise such powers under the
Certificate Purchase Agreement and the Supplement as are delegated to the Agent
or the Administrative Agent, as applicable, by the terms thereof, together with
such powers as are reasonably incidental thereto, all in accordance with Section
7 of the Certificate Purchase Agreement; and (vi) the Additional Class B
Purchaser agrees (for the benefit of the Agent, the Administrative Agent, the
other Class B Purchasers, the Trustee, the Servicer and the Transferor) that it
will perform in accordance with their terms all of the obligations which by the
terms of the Certificate Purchase Agreement are required to be performed by it
as a Class B Purchaser which is a Noncommitted Class B Purchaser or Committed
Class B Purchaser, as the case may be, as specified in Schedule II hereto.
(e) Schedule II hereto sets forth the Commitment and the
Commitment Expiration Date, if applicable, and the initial Investing Office of
the Additional Class B Purchaser, as well as administrative information with
respect to the Additional Class B Purchaser.
(f) This Supplement shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplement to be executed by their respective duly authorized officers on
Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
B-2
58
SCHEDULE I TO
JOINDER SUPPLEMENT
------------------
COMPLETION OF INFORMATION AND
SIGNATURES FOR JOINDER SUPPLEMENT
Re: Class B Certificate Purchase Agreement, dated as of January
22, 1997, among Prime II Receivables Corporation, as
Transferor, FDS National Bank, as Servicer, the Class B
Purchasers party thereto and Credit Suisse First Boston, New
York Branch, as Agent and as Administrative Agent.
Item 1: Date of Joinder Supplement:
Item 2: Additional Class B Purchaser:
Item 3: Signatures of Parties to Agreement:
-------------------------------------
as Additional Class B Purchaser
By:
--------------------------------
Name:
Title:
[By:
--------------------------------
Name:
Title:]
PRIME II RECEIVABLES CORPORATION,
as Transferor
By:
--------------------------------
Name:
Title:
B-3
59
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH, as Agent
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
ACCEPTED BY:
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Administrative Agent
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
FDS NATIONAL BANK, as Servicer
By:
--------------------------------
Name:
Title:
B-4
60
SCHEDULE II TO
JOINDER SUPPLEMENT
------------------
LIST OF INVESTING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT
--------------------------
[Additional Class B Purchaser]
------------------------------
Noncommitted Class B Purchaser: Yes/No
-----------
Initial Noncommitted Purchaser Percentage: _______%
(if applicable)
Committed Class B Purchaser: Yes/No
-------------
Initial Committed Purchaser Percentage: _______%
(if applicable)
Commitment: $____________
Commitment Expiration Date: _____________
Address for Notices:
--------------------
Investing Office:
-----------------
X-0
00
XXXXXXXX XXX TO
JOINDER SUPPLEMENT
------------------
FORM OF
JOINDER EFFECTIVE NOTICE
------------------------
To: [Name and address of
Transferor, Servicer, Trustee, Administrative
Agent and Additional Class B Purchaser]
The undersigned, as Agent under the Class B Certificate
Purchase Agreement, dated as of January 22, 1997, among Prime II Receivables
Corporation, as Transferor, FDS National Bank, as Servicer, the Class B
Purchasers parties thereto and Credit Suisse First Boston, New York Branch, as
Agent for the Class B Purchasers and as Administrative Agent thereunder,
acknowledges receipt of five executed counterparts of a completed Joinder
Supplement. [Note: attach copies of Schedules I and II from such Agreement.]
Terms defined in such Supplement are used herein as therein defined.
Pursuant to such Supplement, you are advised that the Joinder
Effective Date will be _____________, 199_.
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCK, as Agent
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
B-6
62
EXHIBIT C
---------
FORM OF TRANSFER SUPPLEMENT
TRANSFER SUPPLEMENT, dated as of the date set forth in Item 1
of Schedule I hereto, among the Transferor Class B Purchaser set forth in Item 2
of Schedule I hereto (the "TRANSFEROR CLASS B PURCHASER"), the Purchasing Class
B Purchaser set forth in Item 3 of Schedule I hereto (the "PURCHASING CLASS B
PURCHASER"), and Credit Suisse First Boston, New York Branch, as Agent for the
Class B Purchasers under, and as defined in, the Certificate Purchase Agreement
described below (in such capacity, the "AGENT").
W I T N E S S E T H:
WHEREAS, this Supplement is being executed and delivered in
accordance with subsection 8.1(e) of the Class B Certificate Purchase Agreement,
dated as of January 22, 1997, among Prime II Receivables Corporation, as
Transferor, FDS National Bank, as Servicer, the Class B Purchasers parties
thereto, the Agent and Credit Suisse First Boston, New York Branch, as
Administrative Agent (as from time to time amended, supplemented or otherwise
modified in accordance with the terms thereof, the "CERTIFICATE PURCHASE
AGREEMENT"; unless otherwise defined herein, terms defined in the Certificate
Purchase Agreement are used herein as therein defined);
WHEREAS, the Purchasing Class B Purchaser (if it is not
already a Class B Purchaser party to the Certificate Purchase Agreement) wishes
to become a Class B Purchaser party to the Certificate Purchase Agreement and
the Purchasing Class B Purchaser wishes to acquire and assume from the
Transferor Class B Purchaser, certain of the rights, obligations and commitments
under the Certificate Purchase Agreement; and
WHEREAS, the Transferor Class B Purchaser wishes to sell and
assign to the Purchasing Class B Purchaser, certain of its rights, obligations
and commitments under the Certificate Purchase Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
(a) Upon receipt by the Agent of five counterparts of this
Supplement, to each of which is attached a fully completed Schedule I and
Schedule II, each of which has been executed by the Transferor Class B
Purchaser, the Purchasing Class B Purchaser and the Agent, the Agent will
transmit to the Servicer, the Transferor, the Trustee, the Transferor Class B
Purchaser and the Purchasing Class B Purchaser a Transfer Effective Notice,
substantially in the form of Schedule III to this Supplement (a "TRANSFER
EFFECTIVE NOTICE"). Such Transfer Effective Notice shall be executed by the
Agent and shall set forth, INTER ALIA, the date on which the transfer effected
by this Supplement shall become effective (the "TRANSFER EFFECTIVE DATE").
Subject to the prior written consent, if applicable, of the Transferor and the
Servicer to such transfer in the form of Schedule IV to this Supplement, from
and after the Transfer Effective Date the Purchasing Class B Purchaser shall be
a Class B Purchaser party to the Certificate
63
Purchase Agreement for all purposes thereof as a Noncommitted Class B Purchaser
or Committed Class B Purchaser, as specified on Schedule II to this Supplement.
(b) At or before 12:00 Noon, local time of the Transferor
Class B Purchaser, on the Transfer Effective Date, the Purchasing Class B
Purchaser shall pay to the Transferor Class B Purchaser, in immediately
available funds, an amount equal to the purchase price, as agreed between the
Transferor Class B Purchaser and such Purchasing Class B Purchaser (the
"PURCHASE PRICE"), of the portion set forth on Schedule II hereto being
purchased by such Purchasing Class B Purchaser of the outstanding Class B
Invested Amount under the Class B Variable Funding Certificate owned by the
Transferor Class B Purchaser (such Purchasing Class B Purchaser's "PURCHASE
PERCENTAGE") and other amounts owing to the Transferor Class B Purchaser under
the Certificate Purchase Agreement or otherwise in respect of the Class B
Variable Funding Certificates. Effective upon receipt by the Transferor Class B
Purchaser of the Purchase Price from the Purchasing Class B Purchaser, the
Transferor Class B Purchaser hereby irrevocably sells, assigns and transfers to
the Purchasing Class B Purchaser, without recourse, representation or warranty,
and the Purchasing Class B Purchaser hereby irrevocably purchases, takes and
assumes from the Transferor Class B Purchaser, the Purchasing Class B
Purchaser's Purchase Percentage of (i) the presently outstanding Class B
Invested Amount under the Class B Variable Funding Certificates owned by the
Transferor Class B Purchaser and other amounts owing to the Transferor Class B
Purchaser in respect of the Class B Variable Funding Certificates, together with
all instruments, documents and collateral security pertaining thereto, and (ii)
the Purchasing Purchaser's Purchase Percentage of (A) if the Transferor Class B
Purchaser is a Noncommitted Class B Purchaser, the Noncommitted Purchaser
Percentage of the Transferor Class B Purchaser and the other rights and duties
of the Transferor Class B Purchaser under the Certificate Purchase Agreement, or
(B) if the Transferor Class B Purchaser is a Committed Class B Purchaser, the
Committed Purchaser Percentage and the Commitment of the Transferor Class B
Purchaser and other rights, duties and obligations of the Transferor Class B
Purchaser under the Certificate Purchase Agreement. This Supplement is intended
by the parties hereto to effect a purchase by the Purchasing Class B Purchaser
and sale by the Transferor Class B Purchaser of interests in the Class B
Variable Funding Certificates, and it is not to be construed as a loan or a
commitment to make a loan by the Purchasing Class B Purchaser to the Transferor
Class B Purchaser. The Transferor Class B Purchaser hereby confirms that the
amount of the Class B Invested Amount is $____ and its Percentage Interest
thereof is ___%, which equals $____ as of ______________, 199_. Upon and after
the Transfer Effective Date (until further modified in accordance with the
Certificate Purchase Agreement), the Noncommitted Purchaser Percentage or
Commited Purchaser Percentage, as applicable of the Transferor Class B
Purchaser and the Purchasing Class B Purchaser and the Commitment, if any, of
the Transferor Class B Purchaser and the Purchasing Class B Purchaser shall be
as set forth in Schedule II to this Supplement.
(c) The Transferor Class B Purchaser has made arrangements
with the Purchasing Class B Purchaser with respect to (i) the portion, if any,
to be paid, and the date or dates for payment, by the Transferor Class B
Purchaser to the Purchasing Class B Purchaser of any fees heretofore received by
the Transferor Class B Purchaser pursuant to the Certificate Purchase Agreement
prior to the Transfer Effective Date and (ii) the portion, if any, to be paid,
and the date or dates for payment, by the Purchasing Class B Purchaser to the
Transferor Class B
C-2
64
Purchaser of fees or interest received by the Purchasing Class B Purchaser
pursuant to the Certificate Purchase Agreement or otherwise in respect of the
Class B Variable Funding Certificates from and after the Transfer Effective
Date.
(d) (i) All principal payments that would otherwise be payable
from and after the Transfer Effective Date to or for the account of the
Transferor Class B Purchaser in respect of the Class B Variable Funding
Certificates shall, instead, be payable to or for the account of the Transferor
Class B Purchaser and the Purchasing Class B Purchaser, as the case may be, in
accordance with their respective interests as reflected in this Supplement.
(ii) All interest, fees and other amounts that
would otherwise accrue for the account of the Transferor Class B Purchaser
from and after the Transfer Effective Date pursuant to the Certificate
Purchase Agreement or in respect of the Class B Variable Funding Certificates
shall, instead, accrue for the account of, and be payable to or for the
account of, the Transferor Class B Purchaser and the Purchasing Class B
Purchaser, as the case may be, in accordance with their respective interests as
reflected in this Supplement. In the event that any amount of interest, fees or
other amounts accruing prior to the Transfer Effective Date was included in the
Purchase Price paid by the Purchasing Class B Purchaser, the Transferor Class B
Purchaser and the Purchasing Class B Purchaser will make appropriate
arrangements for payment by the Transferor Class B Purchaser to the Purchasing
Class B Purchaser of such amount upon receipt thereof from the Agent.
(e) Concurrently with the execution and delivery hereof, the
Purchasing Class B Purchaser will deliver to the Transferor and the Trustee an
executed Investment Letter in the form of Exhibit A to the Certificate Purchase
Agreement.
(f) Each of the parties to this Supplement agrees and
acknowledges that (i) at any time and from time to time upon the written request
of any other party, it will execute and deliver such further documents and do
such further acts and things as such other party may reasonably request in order
to effect the purposes of this Supplement, and (ii) the Agent shall apply each
payment made to it under the Certificate Purchase Agreement, whether in its
individual capacity or as Agent, in accordance with the provisions of the
Certificate Purchase Agreement, as appropriate.
(g) By executing and delivering this Supplement, the
Transferor Class B Purchaser and the Purchasing Class B Purchaser confirm to and
agree with each other, the Administrative Agent and the Agent and the Class B
Purchasers as follows: (i) other than the representation and warranty that it is
the legal and beneficial owner of the interest being assigned hereby free and
clear of any adverse claim, the Transferor Class B Purchaser makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Certificate Purchase Agreement or the Pooling and Servicing Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Certificate Purchase Agreement or any other instrument or document
furnished pursuant thereto; (ii) the Transferor Class B Purchaser makes no
representation or warranty and assumes no responsibility with respect to the
Trust, the financial condition of the Servicer, the Transferor or the Trustee,
or the performance or observance by the
C-3
65
Servicer, the Transferor or the Trustee of any of their respective obligations
under the Certificate Purchase Agreement, the Pooling and Servicing Agreement or
any other instrument or document furnished pursuant hereto; (iii) each
Purchasing Class B Purchaser confirms that it has received a copy of such
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Supplement; (iv) each Purchasing Class
B Purchaser will, independently and without reliance upon the Agent, the
Transferor Class B Purchaser or any other Class B Purchaser and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the
Certificate Purchase Agreement or the Pooling and Servicing Agreement; (v) each
Purchasing Class B Purchaser appoints and authorizes the Agent and the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Certificate Purchase Agreement and the Pooling and
Servicing Agreement as are delegated to the Agent or the Administrative Agent,
as the case may be, by the terms thereof, together with such powers as are
reasonably incidental thereto, all in accordance with Section 7 of the
Certificate Purchase Agreement; and (vi) each Purchasing Class B Purchaser
agrees (for the benefit of the Transferor Class B Purchaser, the Agent, the
Administrative Agent, the Class B Purchasers, the Trustee, the Servicer and the
Transferor) that it will perform in accordance with their terms all of the
obligations which by the terms of the Certificate Purchase Agreement are
required to be performed by it as a Class B Purchaser.
(h) Schedule II hereto sets forth the revised Noncommitted
Purchaser Percentage or the revised Committed Purchaser Percentage and
Commitment of the Transferor Class B Purchaser, as applicable, the Noncommitted
Purchaser Percentage or the Committed Purchaser Percentage, Commitment and
Commitment Expiration Date of the Purchasing Class B Purchaser, as applicable,
and the initial Investing Office of the Purchasing Class B Purchaser, as well as
administrative information with respect to the Purchasing Class B Purchaser.
(i) This Supplement shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplement to be executed by their respective duly authorized officers on
Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
C-4
66
SCHEDULE I TO
TRANSFER SUPPLEMENT
-------------------
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Re: Class B Certificate Purchase Agreement, dated as of January
22, 1997, among Prime II Receivables Corporation, as
Transferor, FDS National Bank, as Servicer, the Class B
Purchasers party thereto and Credit Suisse First Boston, New
York Branch, as Agent and as Administrative Agent.
Item 1: Date of Transfer Supplement:
Item 2: Transferor Class B Purchaser:
Item 3: Purchasing Class B Purchaser:
Item 4: Signatures of Parties to Agreement:
--------------------------------
as Transferor Class B Purchaser
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
C-5
67
--------------------------------
as Purchasing Class B Purchaser
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
ACCEPTED BY:
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Agent
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
C-6
68
SCHEDULE II TO
TRANSFER SUPPLEMENT
-------------------
LIST OF INVESTING OFFICES, ADDRESSES
FOR NOTICES, ASSIGNED INTEREST,
PURCHASE PERCENTAGE AND PURCHASE PRICE
--------------------------------------
[Transferor Class B Purchaser]
A. Noncommitted Class B Purchaser: Yes/No
-----------
If applicable:
Noncommitted Purchaser Percentage:
----------------------------------
Transferor Class B Purchaser
Noncommitted Purchaser Percentage
Prior to Sale: _____%
Noncommitted Purchaser Percentage Sold: _____%
Noncommitted Purchaser Percentage Retained: _____%
B. Committed Class B Purchaser: Yes/No
-----------
If applicable:
Committed Purchaser Percentage:
-------------------------------
Transferor Class B Purchaser
Committed Purchaser Percentage
Prior to Sale: _____%
Committed Purchaser Percentage Sold: _____%
Committed Purchaser Percentage Retained: _____%
Commitment:
-----------
Transferor Class B Purchaser Commitment
Prior to Sale: $________
Commitment Sold: $________
X-0
00
Xxxxxxxxxx Xxxxxxxx: $________
C. Class B Invested Amount:
------------------------
Transferor Class B Purchaser
Class B Invested Amount Prior to Sale: $________
Class B Invested Amount Sold: $________
Class B Invested Amount Retained: $________
D. Purchase Percentage: _____%
-------------------
[Purchasing Class B Purchaser]
A. Noncommitted Class B Purchaser: Yes/No
--------
If applicable:
Initial Noncommitted Purchaser Percentage: _____%
------------------------------------------
B. Committed Class B Purchaser: Yes/No
--------
If applicable:
Committed Purchaser Percentage: _____%
-------------------------------
Commitment: $________
----------
Commitment Expiration Date: ____________
C. Class B Invested Amount Owned Immediately
-----------------------------------------
After Sale: $________
----------
Address for Notices:
--------------------
Investing Office:
-----------------
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70
SCHEDULE III TO
TRANSFER SUPPLEMENT
-------------------
Form of
Transfer Effective Notice
-------------------------
To: [Name and address of
Transferor, Servicer, Trustee, the Transferor Class B
Purchaser and the Purchasing Class B Purchaser]
The undersigned, as Agent under the Class B Certificate
Purchase Agreement, dated as of January 22, 1997, among Prime II Receivables
Corporation, as Transferor, FDS National Bank, as Servicer, the Class B
Purchasers parties thereto and Credit Suisse First Boston, New York Branch, as
Agent for the Class B Purchasers and as Administrative Agent thereunder,
acknowledges receipt of five executed counterparts of a completed Transfer
Supplement. [Note: attach copies of Schedules I and II from such Agreement.]
Terms defined in such Supplement are used herein as therein defined.
Pursuant to such Supplement, you are advised that the Transfer
Effective Date will be _____________, 199_.
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCK, as Agent
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
C-9
71
SCHEDULE IV TO
TRANSFER SUPPLEMENT
-------------------
Form of
Consent of Transferor
---------------------
To: The Chase Manhattan Bank, as Trustee
Credit Suisse First Boston, New York Branch, as Agent
The undersigned hereby consents to the transfer, as of the
Transfer Effective Date, of a [Noncommitted Purchaser Percentage/Committed
Purchaser Percentage] equal to ____% [representing a Commitment in the amount of
$__________] and a Class B Invested Amount under the Prime Credit Card Master
Trust II Class B Variable Funding Certificates, Series 1997-1, in the amount of
$_________, by _______________ to _______________, pursuant to the Class B
Certificate Purchase Agreement, dated as of January 22, 1997, among Prime II
Receivables Corporation, FDS National Bank, as Servicer, the Class B Purchasers
parties thereto and Credit Suisse First Boston, New York Branch, as Agent and as
Administrative Agent.
Very truly yours,
PRIME II RECEIVABLES
CORPORATION
By:_______________________
Name:
Title:
FDS NATIONAL BANK,
as Servicer
By:________________________
Name:
Title:
Dated: _________________
cc: Purchasing Class B Purchaser
C-10
