ASSISTANCE AGREEMENT (this "Agreement"), dated as of
January 29, 1998, by and between Partners First Holdings, LLC, a Delaware
limited liability company ("Holdings"), ▇▇▇▇▇▇ Trust and Savings Bank, an
Illinois banking corporation (the "Bank").
WHEREAS, simultaneously with the execution and delivery of
this Agreement, the Bank and Holdings have entered into the Contribution
Agreement (as hereinafter defined) pursuant to which the Bank has
contributed to Holdings certain assets relating to the Initial Accounts,
including without limitation, the right to direct the Bank to transfer to
any other party at any time and without consideration the Initial
Cardholder Agreements and other Initial Designated Agreements;
WHEREAS, pursuant to the Contribution Agreement, the Bank
shall continue to hold, be a party to and be entitled to extend credit
under the Initial Cardholder Agreements, subject to the terms and
conditions set forth therein;
WHEREAS, Holdings and the Bank mutually desire to assist
each other in the marketing, solicitation and origination of Accounts (as
hereinafter defined), subject to the terms and conditions set forth
herein;
WHEREAS, upon the origination or acquisition of Additional
Accounts (as hereinafter defined) utilizing the expertise and services of
Holdings on behalf of the Bank, the Bank desires to sell, transfer and
assign the Transferred Assets relating to such Additional Accounts to
Holdings and Holdings is willing to accept such Transferred Assets; and
WHEREAS, the Bank desires to engage the services of
Holdings and such sub-servicer as Holdings may designate to service the
Accounts, subject to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged and intending to be legally bound, the parties hereto hereby
agree as follows:
Article I
Definitions
1.1. Definitions. As used in this Agreement, capitalized
terms used herein without definition shall have the meaning specified in
the Contribution Agreement and the following terms shall have the meaning
specified:
"Accounts" means the Initial Accounts and the Additional
Accounts.
"Account Information" means any and all books and records
of Holdings or the Bank relating solely to the Solicited Applicants,
Applicants, Eligible Applicants, Initial Cardholders, Additional
Cardholders and the Accounts, including, without limitation, all Account
applications, statements, records and correspondence and all customer
lists and other information under Holdings' or the Bank's control
relating solely to each of the foregoing and such Accounts, whether in
paper, microfilm, microfiche or magnetic tape form.
"Accounts Receivable" means any and all amounts payable by
the Cardholders (whether billed or unbilled, posted or not) in connection
with the Accounts, including, without limitation, all principal,
outstanding purchases, cash advances, interest (including accrued but
unbilled interest), annual fees, finance and service charges and other
charges and fees.
"Additional Account" means a Credit Card account originated
or acquired after the date hereof pursuant to Article III hereof.
"Acquisition" has the meaning set forth in Section 3.3.
"Additional Cardholder Agreement" has the meaning set forth
in Section 3.2.
"Additional Designated Agreements" means the Additional
Cardholder Agreements and all rights and privileges under the Additional
Cardholder Agreements, including, without limitation, all rights to
create, enforce and collect Accounts Receivable under the Additional
Cardholder Agreements, all rights to enforce and collect amounts owing
under the Additional Cardholder Agreements and all rights to amend and
modify the Additional Cardholder Agreements and all records and
information necessary for Bank to exercise its rights and privileges
under the Additional Cardholder Agreements.
"Adverse Consequences" means all actions, suits,
proceedings, hearings, investigations, charges, complaints, claims,
demands, injunctions, judgments, orders, rulings, decrees, damages, dues,
penalties, fines, costs, amounts paid in settlement, liabilities,
obligations, liens, losses, expenses, and fees, including court costs and
reasonable attorneys' fees and expenses, and all lost profits and
exemplary, punitive, consequential or other similar damages awarded to
any third party.
"Affiliate" means, with respect to any Person, any other
Person controlling, controlled by or under common control with, such
Person. As used in this definition, (a) "control" (including, with its
correlative meanings, "controlling," "controlled by" and "under common
control with") means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities, by contract
or otherwise, and (b) with respect to any Person other than a Subsidiary
of Holdings, the term "Affiliate" shall not include Holdings or any
Subsidiary of Holdings.
"Agreement" has the meaning in the preamble hereto.
"Applicant" means a Person who applies for a Credit Card.
"Applicant Information" has the meaning set forth in
Section 3.2.
"Assigned Agreements" means the Additional Agreements as
defined in the Contribution Agreement.
"Bank" has the meaning in the preamble hereto.
"Bank International Credit Card Business" means the
provision of unsecured lines of credit accessible by VISA(R) or
MasterCard(R) to consumers located outside of the United States of
America, the servicing of such credit card relationships, and the
provision of services incidental thereto by the Bank and its Affiliates.
"Bank Relationship Credit Card Business" means the Credit
Card Business engaged in by the Bank and its Affiliates with consumers
who are employees, officers or directors of the Bank or the Bank
Affiliates or a family member of any such employees, officers or
directors or with any other Person who maintains at least one other
ongoing customer relationship with the Bank or any of its Affiliates at
the time of reference.
"Bank Required Information" has the meaning set forth in
Section 5.1(e).
"Bank Value-Limited Credit Card Business" means the Credit
Card Business (other than the Bank Relationship Credit Card Business)
engaged in by Bank and its Affiliates (other than pursuant to this
Agreement), to the extent that the aggregate outstanding balance of
credit card accounts comprising such Credit Card Business does not exceed
$250 million.
"Bankmont" means Bankmont Financial Corp., a Delaware
corporation.
"BKB" means BankBoston (NH), National Association, a
national banking association.
"Business Day" means a day other than Saturday, Sunday or
any day on which banks located in the Commonwealth of Massachusetts or
the State of Maryland are authorized or obligated to close.
"Cardholder" means a holder of a Credit Card which is a
party to either an Initial Cardholder Agreement or an Additional
Cardholder Agreement.
"Cardholder Agreement" means the agreement between the
Cardholder or other obligors and the Bank with respect to a Credit Card
including, without limitation, any agreement relating to credit
enhancements provided in connection with such Credit Card, as the same
has been amended or otherwise modified and in effect from time to time.
"Claim Notice" means written notification pursuant to
Section 7.2(a) of a Third Party Claim as to which indemnity under Section
7.1 is sought by an Indemnified Party, enclosing a copy of all papers
served, if any, on the Indemnified Party.
"Clearing Bank Supplement" means the Client Supplement,
substantially in the form of Exhibit C to the Master Services Agreement,
dated as of January 29, 1998, by and among the Bank, Holdings and FDR
relating to the Holdings Credit Card Business, as amended from time to
time in accordance with the terms thereof.
"Closing Date Receivables Purchase and Sale Agreements"
means the Receivables Purchase and Sale Agreement, dated as of January
29, 1998, by and between the Bank and Receivables and the Overdue
Receivables Purchase and Sale Agreement, dated as of January 29, 1998, by
and between the Bank and Receivables, collectively.
"Common Units" means the units designated as "Common Units"
pursuant to the terms of the Operating Agreement.
"Contribution Agreement" means the Contribution Agreement
dated as of January 29, 1998 by and between the Bank and Holdings.
"Credit Card" means a MasterCard(R) or VISA(R) card issued
by the Bank and associated solely with the Holdings Credit Card Business.
"Credit Card Business" means the provision of unsecured
lines of credit accessible by VISA(R) or MasterCard(R) credit cards to
consumers within the United States of America, the servicing of such
credit card relationships, and the provision of services incidental
thereto.
"Credit Date" has the meaning set forth in Section 4.1.
"Credit Event" has the meaning set forth in Section 4.1.
"Credit Policy" means the credit policy, as adopted by the
Bank and acceptable to Holdings used as the basis for determining
whether, when and to what extent to establish an Additional Account or to
extend credit under a Cardholder Agreement or Account, as amended from
time to time in accordance with the terms hereof (a copy of which has
been provided to Holdings on the date hereof).
"Designated Agreements" means the Initial Designated
Agreements and the Additional Designated Agreements.
"Disclosing Party" has the meaning set forth in Article VI.
"Dispute Notice" has the meaning set forth in Section
7.2(c).
"Dispute Period" means the period ending 30 calendar days
following receipt by the Indemnifying Party of an Indemnity Notice.
"Eligible Applicant" has the meaning set forth in Section
3.1(b).
"FA" means First Annapolis Marketing Information Services,
Inc., a Maryland corporation.
"FDR" means First Data Resources Inc.
"Governmental Authority" means may federal, national,
state, municipal, local, territorial or other governmental department,
commission, board, bureau, agency, regulatory authority, instrumentality,
judicial or administrative body, domestic or foreign.
"Holdings" has the meaning in the preamble hereto.
"Holdings Credit Card Business" means the Credit Card
Business of the Bank (other than the Bank Relationship Credit Card
Business, the Bank International Credit Card Business and the Bank
Value-Limited Credit Card Business from and after the date the Bank
notifies Holdings of its election to exclude the same from the Holdings
Credit Card Business, any such exclusion to be prospective only).
"Holdings Required Information" has the meaning set forth
in Section 5.2(d).
"ICA" means the MasterCard(R) Interbank Card Account.
"Indemnified Bank Parties" has the meaning set forth in
Section 7.1(a).
"Indemnified Holdings Parties" has the meaning set forth in
Section 7.1(b).
"Indemnified Parties" has the meaning set forth in Section
7.1(b).
"Indemnifying Party" means any Person against whom a claim
for indemnification is being asserted under any provision of Article VII.
"Indemnity Notice" means written notification pursuant to
Section 7.2(c) of a claim for indemnity under Article VII by an
Indemnified Party, specifying the nature of and basis for such claim,
together with the amount or, if not then reasonably ascertainable, the
estimated amount, determined in good faith, of such claim.
"Information" has the meaning set forth in Article VI.
"Initial Account" means a Credit Card account transferred
to Holdings by the Bank under the Contribution Agreement.
"Initial Cardholder Agreements" means the Cardholder
Agreements as defined in the Contribution Agreement.
"Initial Designated Agreements" means the Designated
Agreements as defined in the Contribution Agreement.
"Interchange" means the contractual agreements, rules,
regulations and procedures governing the relationships between, or the
actions in accordance with the contracts, agreements, rules, regulations
and procedures by, any two or more Persons in connection with Interchange
Settlement.
"Interchange Settlement" means the process by which FDR, on
behalf of the Bank (a) initiates payment for MasterCard(R) and VISA(R)
Transaction Card Tickets presented by "acquirers" (as such term is
defined in MasterCard(R) and VISA(R) regulations) to the Bank, (b)
receives payment for MasterCard(R) and VISA(R) Transaction Card Tickets
presented by the Bank, and (c) remits and receives payments for
chargebacks and other Interchange fees and expenses of or payable by the
Bank.
"Laws" means all laws, statutes, rules, regulations,
ordinances and other pronouncements having the effect of law of the
United States, any foreign country or any domestic or foreign state,
county, city or other political subdivision of any Governmental
Authority.
"Marketing Documents" has the meaning set forth in Section
3.1(a).
"Marketing Plan" has the meaning set forth in Section
3.1(a).
"MasterCard(R)" means MasterCard International
Incorporated.
"Master Services Agreement" means the Master Services
Agreement, dated as of January 29, 1998, by and between Holdings and FDR,
as amended from time to time in accordance with the terms thereof.
"Operating Agreement" means the Limited Liability Company
Agreement, dated as of January 29, 1998, by and among BKB, Bankmont,
▇▇▇▇▇▇ Trust and Savings Bank, an Illinois banking corporation, FA, the
Company, and any of their respective permitted successors and assigns,
and Holdings.
"Origination" has the meaning set forth in Section 3.2.
"Person" means any individual, partnership, corporation,
association, trust, limited liability company, joint venture,
unincorporated organization and any government, governmental department
or agency or political subdivision thereof.
"Qualified Transferee" has the meaning set forth in Section
3.4.
"Receivables" means Partners First Receivables, LLC, a
Delaware limited liability company.
"Receivables Purchase Agreement" means the Receivables
Purchase Agreement, dated as of January 29, 1998, by and between the Bank
and Receivables to effect the daily sale of Accounts Receivable under the
Accounts after the date hereof, as amended from time to time in
accordance with the terms thereof.
"Required Information" means the Bank Required Information
and Holdings Required Information, collectively.
"Resolution Period" means the period ending 30 calendar
days following receipt by an Indemnified Party of a Dispute Notice.
"Series A Units" means the units designated as "Series A
Units" pursuant to the terms of the Operating Agreement.
"Settlement Account" has the meaning set forth in Section
5.2(i).
"Service ▇▇▇▇" has the meaning set forth in Section 2.3.
"Solicited Applicants" means Persons who are solicited to
open an Account pursuant to Section 3.1(b).
"Subsidiary" means any corporation, association, trust, or
other business entity, of which the designated parent shall at any time
own or control directly or indirectly through a Subsidiary of
Subsidiaries at least a majority (by number of votes) of the outstanding
shares of capital stock (or other shares of beneficial interest) entitled
ordinarily to vote for the election of such business entity's directors
(or in the case of a business entity that is not a corporation, for those
Persons exercising functions similar to directors of a corporation).
"Third Party Claim" has the meaning set forth in Section
7.2(a).
"Transferred Assets" means, with respect to the Additional
Accounts, (i) all rights in and to the business relationship between the
Bank and the Cardholder in their capacities as such, including the right
to offer ongoing Credit Card services to Cardholders party to the
Additional Cardholder Agreements and the right to offer and provide other
products and services on a non-exclusive basis to Cardholders, (ii) the
right to designate any other party at any time and from time to time
without further consideration a successor to the Bank (without any
further consideration being payable by the Company and the Bank agrees to
take all such actions as are necessary or required to effect such
designation) under the Additional Designated Agreements provided that (a)
the designee is legally capable of performing the obligations of the Bank
thereunder, (b) such designee expressly assumes the obligations of the
Bank under the Additional Designated Agreements and (c) such designee
expressly acknowledges that its rights thereunder are subject to, and
that it is bound by, the Receivables Purchase Agreement, (iii) any and
all books and records under the Bank's control relating solely to the
Cardholders and the Additional Accounts, including, without limitation,
all Additional Account applications, statements, records and
correspondence and all customer lists and other information under the
Bank's control relating solely to such Cardholders and such Additional
Accounts, whether in paper, microfilm, microfiche or magnetic tape form;
and (iv) the right to assign, license or designate to others any or all
of the foregoing, but excluding any rights or assets transferred or
assigned by the Bank pursuant to the Receivables Purchase Agreement;
provided, however, that Transferred Assets shall not include the
Additional Designated Agreements.
"VISA(R)" means VISA U.S.A., Inc.
1.2. Headings. The headings and subheadings in this
Agreement are included for convenience and identification only and are in
no way intended to describe, interpret, define or limit the scope, extent
or intent of this Agreement or any provision hereof.
1.3. Pronouns. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, neuter, singular or
plural as the identity of the Person may require.
Article II
Authorization/Appointment of Agent
2.1. Use of Assets. Holdings hereby authorizes the Bank to
use, on a non-exclusive basis, subject to the terms and conditions of
this Agreement, Holdings' rights and interest in, to and under the
Contributed Assets and the Transferred Assets to the extent necessary to
enable the Bank to perform its obligations hereunder.
2.2. Appointment of Holdings as Agent.
(a) The Bank shall (i) make the determination whether, when and
upon what terms to originate an Additional Account or to extend credit
under the Accounts, (ii) extend credit under the Accounts, (iii) effect
Interchange Settlement with respect to the Accounts pursuant to and in
accordance with this Agreement and the Clearing Bank Supplement, (iv)
comply with its covenants set forth in Section 5.1 hereof and (v)
maintain all such other licenses, permits or authorizations from
Governmental Authorities as are necessary to perform its obligations
under this Agreement. Except as set forth in the preceding sentence,
Section 3.4 of this Agreement, the Contribution Agreement and the
Receivables Purchase Agreement, the Bank shall have no other obligations
to Holdings with respect to the Accounts or the Designated Agreements;
provided, however that nothing contained herein shall relieve the Bank of
its obligations to Cardholders under the Cardholder Agreements,
Agreements, the Additional Cardholder Agreements.
(b) The Bank hereby appoints Holdings to act as its sole and
exclusive agent, with the power to appoint and retain sub-agents, and
Holdings accepts such appointment, to exercise, at Holdings' sole cost
and expense, all of the Bank's rights and perform all of its obligations
(other than as specified in Section 2.2(a) and subject to this Section
2.2(b)) with respect to the Accounts and under the Initial Designated
Agreements and the Additional Designated Agreements, including, without
limitation, the following:
(i) to make recommendations with respect to the Credit
Policy;
(ii) to administer the Credit Policy and to administer and
manage the Accounts and the Initial Cardholder Agreements and the
Additional Cardholder Agreements, in a manner consistent with the
Credit Policy, applied consistently and in a manner consistent
with past practice;
(iii) to arrange for the billing and collection of any and
all Accounts Receivable with respect to the Accounts;
(iv) to administer and manage all Accounts Receivable
arising under the Accounts, subject to the oversight of the Bank
and consistent with the Credit Policy, applied consistently and
in a manner consistent with past practice;
(v) to undertake and perform such collection, enforcement,
compromise and other activities with respect to the Accounts as
Holdings may deem appropriate;
(vi) to initiate and pursue or defend any suit or other
legal action or proceeding involving the Accounts, provided,
however, that no legal proceeding may be initiated or pursued (A)
in the name of the Bank without its prior written approval, not
to be withheld unreasonably, or (B) which seeks any remedy other
than solely monetary damages;
(vii) to settle, release, compromise or otherwise dispose
of any suit, cause of action, complaint or claim (whether actual,
pending or threatened) involving the Accounts; provided, however,
that such settlement, release, compromise or other disposition
involves solely the payment of monetary damages by Holdings and
no other form of relief;
(viii) to hire and retain such attorneys, consultants and
other service providers as Holdings may deem appropriate in its
sole discretion in furtherance of any activities involving the
Accounts; and
(ix) to perform such other acts as Holdings may deem
necessary, prudent or desirable in its sole discretion to
exercise the rights and perform the obligations of the Bank with
respect to the Accounts and under the Designated Agreements.
2.3. Service ▇▇▇▇ License. Holdings hereby grants to the
Bank the right and license to use the service ▇▇▇▇ "Partners First,"
including all registrations therefor and designs and logos (collectively,
the "Service ▇▇▇▇") in connection with the Bank's obligations under this
Agreement, subject to the following conditions and limitations. Such
license is non-exclusive as a general matter. The term of this license
shall be coextensive with the term of this Agreement. Holdings agrees
that nothing herein shall give to the Bank any right, title or interest
in and to the Service ▇▇▇▇ (except with respect to use in accordance with
the terms of this Agreement), that the Service ▇▇▇▇ is the sole property
of Holdings and that any and all uses of the Service ▇▇▇▇ by the Bank
shall enure to the sole benefit of Holdings. It is expressly agreed and
understood that the Bank is not purchasing or acquiring any right, title
or interest in the Service ▇▇▇▇. The Bank agrees that if any rights in
the Service ▇▇▇▇ accrues to the Bank by operation of law, such rights
will revert to Holdings. The Bank agrees to cooperate with Holdings in
perfecting its right, title and interest in the Service ▇▇▇▇ by providing
written assignment of any rights therein which may have accrued to the
Bank. Except as expressly provided in this Agreement, and except as
otherwise agreed to in writing by Holdings, the Bank will not use the
Service ▇▇▇▇ for any purposes not related to this Agreement. Any use of
the Service ▇▇▇▇ by the Bank shall be conducted in accordance with any
applicable policies and procedures of Holdings which have been disclosed
in writing to the Bank, and shall be presented in a professional manner,
consistent with the image and use of the Service ▇▇▇▇ by Holdings. In all
events, the Bank may rely on use of Service ▇▇▇▇ which has been expressly
approved in writing by the Bank.
Article III
Accounts
3.1. Solicitation.
(a) The Bank hereby appoints Holdings as its sole and exclusive
agent to acquire, solicit and market Accounts with respect to the
Holdings Credit Card Business. Subject to the applicable requirements of
Law and the Credit Policy, Holdings, at its sole cost and expense, shall
develop and evaluate all data, documents and analysis it may determine to
be necessary, in its sole discretion (including without limitation,
developing the matrices for determining the profile type(s) to be
solicited), to formulate and implement a marketing strategy and plan to
solicit Accounts with respect to the Holdings Credit Card Business (the
"Marketing Plan"). Holdings shall also prepare, at its sole cost and
expense, all marketing documentation (including, without limitation,
brochures, advertisements, mailings and announcements) to be used in the
implementation of the Marketing Plan or the generation of Additional
Accounts (collectively, the "Marketing Documents"). The Bank shall assist
Holdings, as is necessary and appropriate, in the development and
preparation of the Marketing Plan and Marketing Documents; and such
Marketing Plan and Marketing Documents shall be subject to the prior
review and approval of the Bank.
(b) Holdings shall, at its sole cost and expense, implement and
administer the Marketing Plan which shall include overseeing and
administering the preparation and mailing of all Marketing Documents,
screening all responses to Marketing Documents and applications received
and providing the Bank with the initial recommendation with respect to
the Persons who qualify, in accordance with the Credit Policy, for the
origination of an Account and issuance of a Credit Card by the Bank (the
"Eligible Applicants"), and notifying Persons of their failure to so
qualify.
3.2. Origination. Holdings shall provide the Bank from
time to time with the names, addresses and all other relevant information
(including credit histories) with respect to each Solicited Applicant,
Applicant and Eligible Applicant (collectively, "Applicant Information").
Unless the Bank shall notify Holdings in writing not to originate an
Account no later than five (5) Business Days after receipt of the
Applicant Information with respect to each Eligible Applicant, Holdings
is hereby authorized to and shall, in the name of and on behalf of the
Bank, solely as agent for the Bank, establish an Additional Account for
an Eligible Applicant, cause the Bank and a Cardholder to enter into a
Cardholder Agreement with such Eligible Applicant (an "Additional
Cardholder Agreement") and provide the Cardholder with a Credit Card
(collectively, an "Origination") to each Eligible Applicant. Holdings
shall bear all costs and expenses of an Origination, including, without
limitation, the cost of issuing and mailing the Credit Card to each
Cardholder, and any VISA(R) or MasterCard(R) costs, as the case may be.
Simultaneously with an Origination, in consideration of the services
performed by Holdings as specified in Section 3.1 above, the Bank hereby
assigns, transfers and delivers to Holdings and Holdings hereby accepts,
assumes, acquires and takes delivery of all of the Bank's interest in the
Transferred Assets relating to the Additional Accounts.
3.3. Acquisition of Accounts. If Holdings acquires (i)
Credit Card accounts and related Cardholder Agreements from the Bank or
any of the Bank's Affiliates pursuant to Section 8.1(a)(ii) or Section
8.1(b) Operating Agreement, or (ii) other consumer line of credit
accounts accessible by VISA(R) or MasterCard(R) and related agreements
from any other Person, on terms mutually agreed to by Holdings and the
Bank (each being an "Acquisition"), then each such account shall
constitute an Additional Account, and each such Cardholder Agreement and
related agreement shall constitute an Additional Cardholder Agreement,
for all purposes hereof (other than Sections 3.1 and 3.2 hereof.
3.4. Additional Designated Agreements. The Bank and the
Company acknowledge that all Receivables and net Interchange fees related
thereto generated by the Bank under the Additional Designated Agreements
are to be sold by the Bank to a wholly owned subsidiary of the Company
pursuant to the Receivables Purchase Agreement. The Bank further
acknowledges that its retention of the Additional Designated Agreements
is subject to the right of the Company to direct the Bank and each and
every subsequent transferee thereof to transfer the Additional Designated
Agreements to whomsoever the Company may elect provided that such
transferee is legally capable of performing the obligations of the Bank
and each and every subsequent transferee thereof under the Additional
Designated Agreements, expressly assumes the obligations of the Bank and
each and every subsequent transferee thereof under the Additional
Designated Agreements and expressly acknowledges that it is taking its
rights subject to and will be bound by the terms of the Receivables
Purchase Agreement (to the extent such agreement is then in effect) (each
being a "Qualified Transferee"). Upon the election of the Company to
terminate the Bank's obligations under this Agreement, the Company shall
direct the Bank to, and upon such direction the Bank shall, transfer
(without payment of any further consideration) the Additional Designated
Agreements to such Qualified Transferee. The Bank agrees to execute such
instruments of assignment and transfer as may be reasonably required by
the Company in order to effectuate the transfer of the Additional
Designated Agreements to a Qualified Transferee designee of the Company.
It is expressly acknowledged and agreed that the right of the Company to
direct the Additional Designated Agreements to be transferred is subject
only to the conditions explicitly herein stated, and is otherwise
absolute and unconditional and that the grant of such right to the
Company is a material inducement to the Company in entering this
Agreement.
3.5. Ownership of Accounts Receivable. Subject to the
Receivables Purchase Agreement, all Accounts Receivable arising under any
of the Accounts shall be the sole and exclusive property of the Bank and
its successors and assigns and Holdings shall not have, and hereby
irrevocably waives and disclaims, any ownership or other property
interest therein whatsoever.
Article IV
Representations and Warranties
4.1. Representations and Warranties of the Bank. The Bank
hereby represents and warrants to Holdings as of the date hereof, and,
except for representations and warranties which by their terms are made
solely as of the date hereof, as of the date of each Origination or
Acquisition and as of the date (a "Credit Date") of each extension of
credit (a "Credit Event") under either an Initial Cardholder Agreement or
Additional Cardholder Agreement that:
(a) Organization; Good Standing; Due Qualification. The Bank is a
banking corporation duly organized and validly existing in good standing
and duly qualified to do business as a banking corporation under the laws
of the State of Illinois and has, in all material respects, full power
and authority to own its properties and conduct its business as presently
owned or conducted, and to execute, deliver and perform its obligations
under this Agreement.
(b) Due Authorization. The execution, delivery and performance of
this Agreement and the consummation of the transactions provided for in
this Agreement have been duly authorized by all necessary action on the
part of the Bank. This Agreement constitutes the legal, valid and binding
obligation of the Bank, enforceable against the Bank in accordance with
its terms, except as enforcement thereof may be limited by receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally, as well as bankruptcy, insolvency, reorganization, moratorium
or similar laws of general applicability relating to or affecting
creditors' rights or general equity principles (regardless of whether
such matters are considered in a proceeding in equity or at law) and the
availability of equitable remedies.
(c) No Conflict. The execution and delivery of this Agreement by
the Bank, the performance by the Bank of the transactions contemplated by
this Agreement, and the fulfillment by the Bank of the terms of this
Agreement will not conflict with, violate or result in any breach of any
of the terms and provisions of, or constitute (with or without notice or
lapse of time or both) a default under, any indenture, contract,
agreement, mortgage, deed of trust, or other instrument to which the Bank
is a party or by which it or any of its properties are bound which would
have a material adverse effect on the Bank's ability to exercise its
rights or perform its obligations hereunder.
(d) No Proceedings. As of the date hereof, there are no
proceedings or investigations pending or, to the best knowledge of the
Bank, threatened against the Bank before any Governmental Authority (i)
asserting the invalidity of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement,
(iii) seeking any determination or ruling that, in the reasonable
judgment of the Bank, would materially and adversely affect the exercise
by the Bank of its rights or performance by the Bank of its obligations
under this Agreement or (iv) seeking any determination or ruling that
would materially and adversely affect the validity or enforceability of
this Agreement.
(e) VISA(R) and MasterCard(R) Membership. As of the date hereof,
the Bank is a member in good standing of VISA(R) and MasterCard(R).
4.2. Representations and Warranties of Holdings. Holdings
hereby represents and warrants to the Bank as of the date hereof and,
except for representations and warranties which by their terms are made
solely as of the date hereof, as of the date of each Origination or
Acquisition and as of each Credit Date:
(a) Organization and Good Standing. Holdings is a limited
liability company duly organized and validly existing in good standing
under the laws of the State of Delaware and has, in all material
respects, full power and authority to own its properties and conduct its
business as presently owned or conducted, and to execute, deliver and
perform its obligations under this Agreement.
(b) Due Qualification. Holdings is duly qualified to do business
and is in good standing (or is exempt from any requirements to so
qualify) and has obtained all necessary licenses and approvals from
Governmental Authorities, in each jurisdiction which requires such
qualification except where the failure to so qualify or obtain licenses
or approvals would not have a material adverse effect on its ability to
perform its obligations under this Agreement.
(c) Due Authorization. The execution, delivery and performance of
this Agreement, and the consummation of the transactions provided for in
this Agreement have been duly authorized by all necessary action on the
part of Holdings. This Agreement constitutes the legal, valid and binding
obligation of Holdings, enforceable against Holdings in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws of general
applicability relating to or affecting creditors's rights or general
equity principles (regardless of whether such matters are considered in a
proceeding in equity or at law) and the availability of equitable
remedies.
(d) No Conflict. The execution and delivery of this Agreement by
Holdings, the performance by Holdings of the transactions contemplated by
this Agreement, and the fulfillment by Holdings of the terms of this
Agreement will not conflict with, violate or result in any breach of any
of the terms and provisions of, or constitute (with or without notice or
lapse of time or both) a default under, any indenture, contract,
agreement, mortgage, deed of trust, or other instrument to which Holdings
is a party or by which it or any of its properties are bound which would
have a material adverse effect on Holdings' ability to perform its
obligations hereunder or thereunder.
(e) No Proceedings. As of the date hereof, there are no
proceedings or investigations pending or, to the best knowledge of
Holdings, threatened against Holdings before any Governmental Authority
(i) asserting the invalidity of this Agreement, (ii) seeking to prevent
the consummation of any of the transactions contemplated by this
Agreement, (iii) seeking any determination or ruling that, in the
reasonable judgment of Holdings, would materially and adversely affect
the performance by Holdings of its obligations under this Agreement, or
(iv) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement.
Article V
Additional Covenants
5.1. The Bank. The Bank covenants and agrees with Holdings
that it shall:
(a) do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence as a banking
corporation organized under the laws of the State of Illinois or such
other organization with all power and authority necessary to perform the
Bank's obligations hereunder;
(b) use its reasonable best efforts to preserve, renew, extend
and keep in full force and effect and in good standing its membership in
each of VISA(R) and MasterCard(R);
(c) comply with all applicable Laws, rules, regulations, decrees
and orders of Governmental Authorities as is necessary to perform its
obligations under this Agreement;
(d) not take any action in violation of the terms and conditions
of the Credit Policy and the Initial Cardholder Agreements and the
Additional Cardholder Agreements with respect to each Origination or
Acquisition and Credit Event;
(e) maintain all records and information, in its possession or
control, in accordance with applicable Laws, in connection with the
operation of the Holdings Credit Card Business including the Accounts and
the Assigned Agreements (collectively, "Bank Required Information"),
subject to the authority of the Board of Governors of the Federal Reserve
System, the Illinois Office of Banks and Real Estate and all other
applicable Governmental Authorities to inspect and/or copy such records
and information upon reasonable notice;
(f) provide to Holdings or to FDR, upon request by Holdings, and
upon reasonable prior notice, such Bank Required Information (or
reasonable access thereto) as shall be reasonably requested by Holdings
in connection with the operation of the Holdings Credit Card Business;
(g) not, without prior notice to and consultation with Holdings,
amend, modify, waive or terminate any of the terms and conditions of the
Credit Policy, the Initial Cardholder Agreements, the Additional
Cardholder Agreements or the Assigned Agreements;
(h) provide Holdings notice of any proceedings or investigations
pending or, to the best knowledge of the Bank, threatened against the
Bank before any Governmental Authority (i) asserting the invalidity of
this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, (iii) seeking any
determination or ruling that, in the reasonable judgment of the Bank,
would materially and adversely affect the performance by the Bank of its
obligations under this Agreement, or (iv) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Agreement; and
(i) remit to Holdings, upon request by Holdings, any excess funds
in the Settlement Account relating to the Accounts.
5.2. Holdings. Holdings hereby covenants and agrees with
the Bank that it shall:
(a) do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence as a limited
liability company organized under the laws of the State of Delaware;
(b) comply with all applicable Laws, rules, regulations, decrees
and orders of Governmental Authorities as is necessary to perform its
obligations under this Agreement;
(c) comply with the terms and conditions of the Credit Policy and
the terms and conditions of the Initial Cardholder Agreements and the
Additional Cardholder Agreements with respect to each Origination or
Acquisition and Credit Event;
(d) maintain all records and information, in its possession or
control, in accordance with applicable Laws, in connection with the
operation of the Holdings Credit Card Business including the Accounts and
the Assigned Agreements (collectively, "Holdings Required Information"),
subject to the authority of the Board of Governors of the Federal Reserve
System, the Illinois Office of Banks and Real Estate and all other
applicable Governmental Authorities to inspect and/or copy such records
and information upon reasonable notice;
(e) provide to the Bank or to FDR, upon request by the Bank, and
upon reasonable prior notice, such Holdings Required Information (or
reasonable access thereto) as shall be reasonably requested by the Bank
in connection with the operation of the Holdings Credit Card Business;
(f) not take any action in violation of the terms and conditions
of the Credit Policy and the Initial Cardholder Agreements and the
Additional Cardholder Agreements with respect to each Origination or
Acquisition and Credit Event;
(g) not, without prior approval of the Bank, amend, modify, waive
or terminate any of the terms and conditions of the Initial Cardholder
Agreements, the Additional Cardholder Agreements or the Assigned
Agreements;
(h) provide the Bank notice of any proceedings or investigations
pending or, to the best knowledge of Holdings, threatened against
Holdings before any Governmental Authority (i) asserting the invalidity
of this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, (iii) seeking any
determination or ruling that, in the reasonable judgment of Holdings,
would materially and adversely affect the performance by Holdings of its
obligations under this Agreement, or (iv) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Agreement;
(i) remit to an account maintained by the Bank to pay costs and
expenses to FDR (the "Settlement Account") sufficient funds to pay
settlement charges owed to FDR by the Bank relating to the Accounts
pursuant to the terms and conditions of the Clearing Bank Supplement, by
such time as is necessary so as to enable the Bank to comply with the
terms of the Clearing Bank Supplement;
(j) remit to an account maintained by the Bank to pay costs and
expenses to FDR all amounts owed to FDR by Holdings pursuant to the
Master Services Agreement and relating to the Accounts; and
(k) in connection with the Master Services Agreement, not direct
FDR to take any action inconsistent with the terms of the Credit Policy
or the Cardholder Agreements.
Article VI
Confidentiality
Neither party shall use, or permit any of its Affiliates or any
of its or its Affiliates' directors, officers, employees, agents,
consultants or advisors to use, any data or information concerning the
other, including, without limitation, any information made available to
it in connection with its performance under this Agreement for any
purpose which would be detrimental to the other. Each party shall hold,
and shall cause its respective Affiliates and its directors, officers,
employees, agents, consultants and advisors and those of its respective
Affiliates to hold, in strict confidence, unless disclosure to a banking
or other regulatory authority is necessary in connection with any
necessary regulatory approval or unless compelled to disclose by judicial
or administrative process or, in the written opinion of its counsel, by
other requirement of Law or the applicable requirements of any
Governmental Authority or relevant stock exchange, all non-public
records, books, contracts, reports, instruments, computer data and other
data and information (collectively, "Information") concerning the other
(or, if required under a contract with a third party, such third party)
furnished or made available to it by such Person or its representatives
pursuant to this Agreement, except to the extent that such Information
can be shown to have been (a) previously known by such party on a
nonconfidential basis, (b) available to such party on a nonconfidential
basis from a source other than the disclosing party, (c) in the public
domain through no fault of such party or (d) later lawfully acquired from
other sources by the party to which it was furnished, and no party shall
release or disclose such Information to any other Person, except its
auditors, attorneys, financial advisors, bankers, other consultants and
advisors and, to the extent permitted above, to banking and other
regulatory authorities. In the event that a party to this Agreement
receives notice that it will be compelled to disclose any Information in
connection with any necessary regulatory approval or by judicial or
administrative process, such party shall provide the Person who provided
such Information (the "Disclosing Party") with prompt prior written
notice of such requirement so that the Disclosing Party may seek a
protective order or other appropriate remedy and/or waive the terms of
any confidentiality agreement by and among any of the parties. In the
event that such protective order, other remedy or waiver is not obtained,
only that portion of the Information which is legally required to be
disclosed shall be so disclosed.
Article VII
Indemnification
7.1. Indemnification Provisions for Benefit of the Bank.
(a) It is the intent and purpose of this Agreement that except as
explicitly hereinafter set forth, the Indemnified Bank Parties (as
hereinafter defined) shall bear no risk in connection with the
transactions contemplated hereby and by the other agreements referred to
in clause (iii) below. Accordingly, Holdings shall indemnify and hold
harmless the Bank and its Affiliates from and against any Adverse
Consequences that any of the Bank and its Affiliates (determined, in each
case, assuming that Holdings is not is an Affiliate of the Bank following
the date hereof) and their respective officers, employees, directors,
representatives and agents (collectively, the "Indemnified Bank Parties")
shall suffer or incur to the extent resulting from, arising out of or
relating to: (i) any breach by Holdings of any of its representations or
warranties contained in Section 4.2 hereof or any of its covenants
contained herein and with respect to the BIN and ICA numbers, (ii) any
breach by the Bank of its obligations under this Agreement, the Initial
Cardholder Agreements, the Additional Cardholder Agreements or the
Assigned Agreements, except to the extent caused by the gross negligence
or willful misconduct of the Bank or any Indemnified Bank Party or (iii)
this Agreement, the Accounts, the Initial Cardholder Agreements, the
Additional Cardholder Agreements, the Assigned Agreements, the
Receivables Purchase Agreement, the Master Services Agreement or the
Clearing Bank Supplement (including, without limitation, resulting from,
arising out of or relating to breaches, acts or omissions by any party
(including the Bank) to any of the foregoing agreements), except to the
extent caused by (y) the gross negligence or willful misconduct of the
Bank or any Indemnified Bank Party or (z) the failure of the Bank to
obtain all licenses, permits, franchises or authorizations from all
Governmental Authorities necessary for the Bank to enter into and to
perform its obligations under this Agreement.
(b) Indemnification Provisions for Benefit of Holdings. The Bank
shall indemnify and hold harmless Holdings and its Affiliates from and
against any Adverse Consequences that Holdings and its Affiliates
(determined, in each case, assuming that the Bank and its Subsidiaries
are not Affiliates of Holdings) and their respective officers, employees,
directors, members of its management committee, representatives and
agents (collectively, the "Indemnified Holdings Parties" and, together
with the Indemnified Bank Parties, the "Indemnified Parties") shall
suffer resulting from, arising out of or relating to any breach by the
Bank of any of its representations or warranties contained in Section 4.1
hereof (other than the second sentence of Section 4.1(b)), or any of its
covenants contained herein, provided, however, indemnification for breach
of covenants shall be provided only to the extent that such Adverse
Consequences are caused by the gross negligence or willful misconduct of
the Bank or any Indemnified Bank Party.
7.2. Method of Asserting Claims. All claims for
indemnification by any Indemnified Party under Section 7.1 will be
asserted and resolved as follows:
(a) In order for an Indemnified Party to be entitled to any
indemnification provided or under Section 7.2 in respect of, arising out
of or involving a claim or demand made by any Person not a party to this
Agreement against the Indemnified Party (a "Third Party Claim"), the
Indemnified Party must deliver a Claim Notice to the Indemnifying Party
promptly after receipt by such Indemnified Party of written notice of the
Third Party Claim; provided, however, that failure to give such Claim
Notice shall not affect the indemnification provided hereunder except to
the extent the Indemnifying Party shall have been actually prejudiced as
a result of such failure. The Indemnifying Party shall promptly mitigate
any such prejudice to the extent possible.
(b) If a Third Party Claim is made against an Indemnified Party,
the Indemnifying Party shall be entitled to participate in the defense
thereof and, if it so chooses, to assume the defense thereof with counsel
selected by the Indemnifying Party, which counsel must be reasonably
satisfactory to the Indemnified Party. Should the Indemnifying Party so
elect to assume the defense of a Third Party Claim, the Indemnifying
Party shall not be liable to the Indemnified Party for legal expenses
subsequently incurred by the Indemnified Party in connection with the
defense thereof, but shall continue to pay for any expenses of
investigation or any Adverse Consequence suffered. If the Indemnifying
Party assumes such defense, the Indemnified Party shall have the right to
participate in the defense thereof and to employ counsel, at its own
expense, separate from the counsel employed by the Indemnifying Party. If
(i) the Indemnifying Party shall not assume the defense of a Third Party
Claim with counsel satisfactory to the Indemnified Party within five
Business Days after delivery of any Claim Notice, or (ii) legal counsel
for the Indemnified Party notifies the Indemnifying Party that there are
or may be legal defenses available to the Indemnified Party or to other
Indemnified Parties which are different from or additional to those
available to the Indemnifying Party, which, if the Indemnified Party and
the Indemnifying Party were to be represented by the same counsel, would
constitute a conflict of interest for such counsel or prejudice
prosecution of the defenses available to such Indemnified Party, or (iii)
if the Indemnifying Party shall assume the defense of a Third Party Claim
and fail to diligently prosecute such defense, then in each such case the
Indemnified Party, by notice to the Indemnifying Party, may employ its
own counsel and control the defense of the Third Party Claim and the
Indemnifying Party shall be liable for the reasonable fees, charges and
disbursements of counsel employed by the Indemnified Party; and the
Indemnified Party shall be promptly reimbursed for any such fees, charges
and disbursements, as and when incurred. Whether the Indemnifying Party
or the Indemnified Party controls the defense of any Third Party Claim,
the parties hereto shall cooperate in the defense thereof. Such
cooperation shall include the retention and provision to the counsel of
the controlling party of records and information which are reasonably
relevant to such Third Party Claim, and making employees available on a
mutually convenient basis to provide additional information and
explanation of any material provided hereunder. The Indemnifying Party
shall have the right to settle, compromise or discharge a Third Party
Claim (other than any such Third Party Claim in which criminal conduct is
alleged) without the Indemnified Party's consent if such settlement,
compromise or discharge (i) constitutes a complete and unconditional
discharge and release of the Indemnified Party, and (ii) provides for no
relief other than the payment of monetary damages and such monetary
damages are paid in full by the Indemnifying Party.
(c) In the event any Indemnified Party should have a claim under
Section 7.1 against any Indemnifying Party that does not involve a Third
Party Claim, the Indemnified Party shall deliver an Indemnity Notice with
reasonable promptness to the Indemnifying Party. The failure by any
Indemnified Party to give the Indemnity Notice shall not impair such
party's rights hereunder except to the extent that an Indemnifying Party
demonstrates that it has been irreparably prejudiced thereby. The
Indemnifying Party shall promptly mitigate any such prejudice to the
extent practicable. If the Indemnifying Party notifies the Indemnified
Party that it does not dispute the claim described in such Indemnity
Notice or fails to notify the Indemnified Party within the Dispute Period
whether the Indemnifying Party disputes the claim described in such
Indemnity Notice, the Adverse Consequences in the amount specified in the
Indemnity Notice will be conclusively deemed a liability of the
Indemnifying Party under Section 7.1 and the Indemnifying Party shall pay
the amount of such Adverse Consequences to the Indemnified Party on
demand. If the Indemnifying Party has delivered notice disputing its
liability to the Indemnified Party (a "Dispute Notice") within the
Dispute Period, the Indemnifying Party and the Indemnified Party will
proceed in good faith to negotiate a resolution of such dispute, and if
not resolved through negotiations within the Resolution Period, such
dispute shall be resolved by litigation in a court of competent
jurisdiction.
(d) Holdings obligations under Section 7.1(a) shall be secured by
the guarantee of each of Bankmont, BKB and FA (and its Affiliates),
severally, as evidenced by each such party's execution and delivery of a
Guarantee Agreement, in the form attached hereto as Exhibit A.
(e) Notwithstanding the termination of this Agreement, a claim
for indemnity may be made under the provisions of this Article VII until
the expiration of the applicable statute of limitations with respect to
such claim.
Article VIII
Payment
8.1. Payment. The Bank shall pay a monthly fee equal to
$1,000 for the rights it has been authorized to use pursuant to Section
2.1 hereof. Holdings shall pay a monthly fee equal to $1,000 for the
Transferred Assets relating to Additional Accounts transferred to it
pursuant to Section 3.2 hereof. All such fees shall be due and payable in
arrears on or before the fifth (5th) Business Day of the next succeeding
calendar month.
8.2. Expenses. Holdings shall reimburse the Bank for all
reasonable costs and expenses incurred by the Bank in connection with the
performance of its obligations hereunder within ten (10) Business Days
after receipt by Holdings from the Bank of an invoice therefor. Holdings
shall be responsible for payment of all costs and expenses incurred by it
hereunder. This Section 8.2 shall survive the termination of this
Agreement.
Article IX
Miscellaneous
9.1. Notices. All notices, demands and other
communications hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally or if mailed by certified mail,
return receipt requested, postage prepaid or if sent by overnight courier
or sent by facsimile (answerback confirmed), as follows:
If to the Bank:
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. - General Counsel
and
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
and
Bank of Montreal
3300 Bloor Street West
12th Floor West Tower
Toronto, Ontario Canada
M8X 2X2
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy sent contemporaneously to:
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to Holdings:
Partners First Holdings, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
and
Partners First Holdings, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
or such other address or to the attention of such other Person as the
recipient party shall have specified by prior written notice to the
sending party. Any such communication shall be deemed to have been
received (i) when delivered, if personally delivered, sent by
nationally-recognized overnight courier or sent via facsimile or (ii) on
the third Business Day following the date on which the piece of mail
containing such communication is posted, if sent by registered mail.
9.2. Entire Agreement. This Agreement (including the
Exhibits and Schedules hereto) contains the entire understanding of the
parties hereto and supersedes all prior agreements and understandings
relating to the subject matter hereof. Each of the parties hereto further
acknowledges and agrees that, in entering into this Agreement, they have
not in any way relied upon any oral or written agreements, statements,
promises, information, arrangements, understandings, representations or
warranties, express or implied, not specifically set forth in this
Agreement.
9.3. Remedies. Subject to the terms of this Agreement, the
parties will be entitled to enforce their rights under this Agreement
specifically (without posting a bond or other security), to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights existing in their favor. The parties hereto
agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that any party may
in its sole discretion apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief in order
to enforce or prevent any violation of the provisions of this Agreement.
In the event of any dispute involving the terms of this Agreement, the
prevailing party shall be entitled to collect reasonable fees and
expenses incurred by the prevailing party in connection with such dispute
from the other parties to such dispute. Except for the remedies of
specific performance and injunctive relief, the remedies provided by
Article VII hereof are the sole and exclusive remedies available to the
parties under this Agreement.
9.4. Governing Law. This Agreement shall be governed by,
and construed and enforced in accordance with, the laws of the State of
Delaware without regard to its conflict of laws rules.
9.5. Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Neither this Agreement nor the rights
and obligations of any party hereunder shall be assignable or
transferable by such party without the prior written consent of the other
party hereto.
9.6. No Implied Rights or Remedies. Except as otherwise
expressly provided herein, nothing herein expressed or implied is
intended or shall be construed to confer upon or to give any Person,
except the parties hereto, any rights or remedies under or by reason of
this Agreement.
9.7. Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
9.8. Construction. The language used in this Agreement
will be deemed to be the language chosen by the parties to express their
mutual intent, and no rule of strict construction will be applied against
any party.
9.9. Severability. The invalidity or unenforceability of
any particular provision of this Agreement shall not affect the other
provisions hereof, and this Agreement shall be construed in all respects
as if such invalid or unenforceable provision was omitted.
9.10. Consent to Jurisdiction. Each of the parties hereto
agrees that any suit, action or proceeding instituted against such party
under or in connection with this Agreement may be brought in a court of
competent jurisdiction in the State of Delaware. By execution hereof,
each party hereto irrevocably waives any objection to, and any right of
immunity on the grounds of improper venue, the convenience of the forum,
the personal jurisdiction of such courts or the execution of judgments
resulting therefrom. Each party hereto irrevocably accepts and submits to
the jurisdiction of such courts in any such action, suit or proceeding.
9.11. Term. The term of this Agreement shall commence on
the date hereof and continue until the earlier of (i) Holdings' election
to terminate this Agreement by notice given at least sixty (60) days
prior to such termination date; provided, however, that Holdings shall
only exercise such right of termination if the Designated Agreements and
all rights and obligations of the Bank hereunder shall be assigned to an
organization with all power and authority necessary to hold the
Designated Agreements and to perform the Bank's obligations hereunder,
(ii) [the Series 1998-1 Termination Date] and (iii) Holdings' or the
Bank's election to terminate this Agreement or any portion thereof, if
required by any Governmental Authority, by notice given at least ten (10)
Business Days or such shorter period as may be otherwise required by such
Governmental Authority prior to such termination. Upon any such
termination of this Agreement, neither party shall have any further
obligations under this Agreement, except (y) as provided in Article VII,
Section 3.4 or Section 8.2 hereof and (z) the Bank's obligations under
Section 2.2(a)(ii) and 5.1(i) and Holdings' obligations under Section
5.2(i) shall survive any termination of this Agreement pursuant to clause
(i) of the immediately preceding sentence (other than on account of
action taken by any Governmental Authority) for a reasonable period of
time after the applicable termination date in order to permit the
Holdings or its designated transferee of the Designated Agreements to
become a member of VISA and Mastercard.
9.12. Further Assurances. On and after the date hereof,
each of the Bank and Holdings shall, at the sole cost and expense of
Holdings, cooperate with the other in good faith to give effect to the
terms hereof and execute, acknowledge and deliver all such
acknowledgments, documents and other instruments; provide, subject to the
requirements of applicable Laws and Article VI hereof, the other with all
information relating to such party or the Accounts; and take such further
action as the other party may reasonably request to enable such party to
exercise its rights or perform its obligations under, or to fully and
completely effectuate, the terms, conditions and intent of this
Agreement.
9.13. Force Majeure and Restricted Performance.
(a) If performance by the Bank of any obligation under this
Agreement or the Client Supplement is prevented, restricted, delayed or
interfered with by reason of labor disputes, strikes, acts of God,
floods, lightning, severe weather, shortages of materials, rationing,
utility or communication failures, failure of MasterCard(R) or VISA(R) or
their settlement system (including Interchange or settlement banks),
failure or delay in receiving electronic data, earthquakes, war,
revolution, civil commotion, acts of public enemies, blockade, embargo or
any Law, or any other act or omission whatsoever other than by the gross
negligence or wilful misconduct of the Bank, whether similar or
dissimilar to those referred to in this clause, which is or are beyond
the reasonable control of the Bank, the Bank shall provide written notice
to Holdings identifying the cause of the prevention, restriction, delay
or interference and the Bank shall be excused from the performance to the
extent of the prevention, restriction, delay or interference, so long as
the Bank is taking reasonable action to accomplish such performance as
promptly as possible under the circumstances.
(b) If performance by Holdings of any service or obligation under
this Agreement is prevented, restricted, delayed or interfered with by
reason of labor disputes, strikes, acts of God, floods, lightning, severe
weather, shortages or materials, rationing, utility or communication
failures, failure of MasterCard(R) or VISA(R), failure or delay in
receiving electronic data, earthquakes, war, revolution, civil commotion,
acts of public enemies, blockade, embargo, or any Law, or any other act
or omission whatsoever, whether similar or dissimilar to those referred
to in this clause, which is or are beyond the reasonable control of
Holdings, Holdings shall be excused from the performance to the extent of
the prevention, restriction, delay or interference, so long as it is
taking reasonable actions to accomplish such performance as promptly as
possible under the circumstances.
9.14. Amendment. This Agreement may be amended,
supplemented or modified only by a written instrument duly executed by or
on behalf of each party hereto.
9.15. WAIVER OF RIGHT TO JURY TRIAL. EACH OF THE PARTIES
HERETO HEREBY WAIVES ITS RIGHTS TO A TRIAL BY JURY IN ANY LITIGATION IN
ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF, THIS
AGREEMENT OR THE VALIDITY, INTERPRETATION OR ENFORCEMENT HEREOF OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above stated.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
PARTNERS FIRST HOLDINGS, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
__________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
