EXECUTION COPY
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UNIVERSAL BANK, N.A.
and
CITIBANK (SOUTH DAKOTA), N.A.
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RECEIVABLES PURCHASE AGREEMENT
Dated as of October 5, 2001
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions..................................................1
Section 1.02. Other Definitional Provisions................................3
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase.....................................................4
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price...............................................5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of Universal Bank
Relating to Universal Bank...................................5
Section 4.02. Representations and Warranties of Universal Bank
Relating to the Agreement and the Receivables................6
Section 4.03. Representations and Warranties of Citibank
(South Dakota)...............................................7
ARTICLE V
COVENANTS
Section 5.01. Covenants of Universal Bank..................................9
Section 5.02. Covenants of Citibank (South Dakota)........................11
1
Page
ARTICLE VI
TERM AND PURCHASE TERMINATION
Section 6.01. Term........................................................11
Section 6.02. Purchase Termination........................................11
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment...................................................12
Section 7.02. Governing Law...............................................12
Section 7.03. Notices.....................................................13
Section 7.04. Severability of Provisions..................................13
Section 7.05. Assignment..................................................13
Section 7.06. Acknowledgment and Agreement of Universal Bank..............14
Section 7.07. Further Assurances..........................................14
Section 7.08. No Waiver; Cumulative Remedies..............................14
Section 7.09. Counterparts................................................14
Section 7.10. Binding; Third-Party Beneficiaries..........................14
Section 7.11. Merger and Integration......................................15
Section 7.12. Headings....................................................15
Section 7.13. Schedules and Exhibits......................................15
Section 7.14. Survival of Representations and Warranties..................15
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RECEIVABLES PURCHASE AGREEMENT, dated as of October 5, 2001, by and
between CITIBANK (SOUTH DAKOTA), N.A., a national banking association organized
under the laws of the United States of America ("Citibank (South Dakota)"), and
UNIVERSAL BANK, N.A., a national banking association organized under the laws of
the United States of America ("Universal Bank").
W I T N E S S E T H:
WHEREAS, Citibank (South Dakota) desires to purchase Receivables
(hereinafter defined) arising under certain credit card accounts of Universal
Bank;
WHEREAS, it is contemplated that certain of the Receivables purchased
hereunder will be transferred by Citibank (South Dakota) to the Master Trust
(hereinafter defined) in connection with the issuance of certain asset-backed
securities; and
WHEREAS, Universal Bank agrees that all covenants and agreements made
by Universal Bank herein with respect to the Designated Accounts (hereinafter
defined) and Receivables, to the extent such Designated Accounts and Receivables
therein have been designated for the Master Trust, shall also be for the benefit
of the Master Trust Trustee (hereinafter defined) and all beneficiaries of the
Master Trust, including holders of the Certificates.
NOW, THEREFORE, it is hereby agreed by and between Universal Bank and
Citibank (South Dakota) as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Capitalized words and phrases used herein or
in any certificate or document, or Conveyance Paper made or delivered pursuant
hereto, and not otherwise defined herein or therein, shall have the meaning
ascribed thereto in the Pooling and Servicing Agreement; in addition, the
following words and phrases shall have the following meanings:
"Agreement" shall mean this Receivables Purchase Agreement and all
amendments hereof and supplements hereto.
"Appointment Date" shall have the meaning set forth in Section 6.02.
"Certificateholder" shall have the meaning set forth in the Pooling and
Servicing Agreement.
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"Citibank (Nevada)" shall mean Citibank (Nevada), National Association,
a national banking association organized under the laws of the United States of
America, its successors and permitted assigns.
"Citibank (South Dakota)" shall mean Citibank (South Dakota), N.A., a
national banking association organized under the laws of the United States of
America, its successors and permitted assigns.
"Closing Date" shall mean October 5, 2001.
"Conveyance" shall have the meaning set forth in subsection 2.01(a).
"Conveyance Papers" shall have the meaning set forth in Section
4.01(c).
"Designated Accounts" shall mean each MasterCard(R) and VISA(R) account
established pursuant to a Credit Card Agreement between Universal Bank and any
person, which account is designated in Annex I to this Agreement or otherwise
agreed (whether by microfiche, computer file or otherwise) between Citibank
(South Dakota) and Universal Bank as being subject to this Agreement.
"Dissolution Event" shall have the meaning set forth in Section 6.02.
"Due Period" shall have the meaning set forth in the Pooling and
Servicing Agreement.
"Excluded Receivables" shall mean all amounts payable by cardholders
under any Designated Account which are recorded on the books and records of
Universal Bank as "Charges" as defined under the Telecommunications Card Service
Agreement.
"Finance Charge Receivables" shall mean all Receivables in the
Designated Accounts which would be treated as "Finance Charge Receivables" in
accordance with the definition for such term in the Pooling and Servicing
Agreement.
"Interchange" shall mean interchange fees payable to Universal Bank in
its capacity as credit card issuer, through VISA or MasterCard in connection
with cardholder charges for goods and services.
"Master Trust" shall mean Citibank Credit Card Master Trust I created
by the Pooling and Servicing Agreement.
"Master Trust Trustee" shall mean Bankers Trust Company, a New York
banking corporation, the institution executing the Pooling and Servicing
Agreement as, and acting in the capacity of trustee thereunder, or its successor
in interest, or any successor trustee appointed as provided in the Pooling and
Servicing Agreement.
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"Obligor" shall mean, with respect to each Designated Account, each
person that would be treated as an "Obligor" in accordance with the definition
for such term in the Pooling and Servicing Agreement.
"Pooling and Servicing Agreement" shall mean the Pooling and Servicing
Agreement, dated as of May 29, 1991, among Citibank (South Dakota) as Seller and
Servicer, Citibank Nevada, as Seller and the Master Trust Trustee, as amended to
the date hereof and as such agreement may be amended from time to time
hereafter, including as amended and restated as of October 5, 2001.
"Principal Receivables" shall mean all Receivables in the Designated
Accounts which would be treated as "Principal Receivables" in accordance with
the definition for such term in the Pooling and Servicing Agreement.
"Purchase Price" shall have the meaning set forth in Section 3.01.
"Purchased Assets" shall have the meaning set forth in subsection
2.01(a).
"Receivables" shall mean all amounts shown on the Servicer's records as
amounts payable by Obligors on any Designated Account from time to time, other
than Excluded Receivables.
"Recoveries" shall have the meaning set forth in the Pooling and
Servicing Agreement except that references in such definition (or in defined
terms related to such definition) to "Receivables" shall mean "Receivables" as
defined in this Agreement.
"Servicer" shall mean the Servicer from time to time under the Pooling
and Servicing Agreement.
"Telecommunications Card Service Agreement" shall mean the
Telecommunications Card Service Agreement, dated as of April 2, 1998, between
Citicorp and AT&T Corp., as amended to the date hereof and as such agreement may
be amended from time to time hereafter.
"Universal Bank" shall mean Universal Bank, N.A., a national banking
association organized under the laws of the United States of America, and its
successors and permitted assigns.
Section 1.02. Other Definitional Provisions.
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(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate, other document, or made or delivered pursuant
hereto unless otherwise defined therein.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement or any Conveyance Paper shall refer to this
Agreement as a whole and not to any particular provision of this Agreement; and
Section, Subsection, Schedule and Exhibit
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references contained in this Agreement are references to Sections, Subsections,
Schedules and Exhibits in or to this Agreement unless otherwise specified.
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase.
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(a) By execution of this Agreement, Universal Bank does hereby sell,
transfer, assign, set over and otherwise convey to Citibank (South Dakota)
(collectively, the "Conveyance"), without recourse except as provided herein,
all its right, title and interest in, to and under the Receivables existing on
the date hereof and hereafter created from time to time until the termination of
this Agreement pursuant to Article VI hereof and all monies due and or to become
due and all amounts received with respect thereto and all proceeds (including,
without limitation, "proceeds" as defined in the UCC) thereof and the right to
receive Interchange and Recoveries with respect to such Receivables (the
"Purchased Assets").
(b) In connection with such Conveyance, Universal Bank agrees (i) to
record and file, at its own expense, any financing statements (and continuation
statements with respect to such financing statements when applicable) with
respect to the Receivables, meeting the requirements of applicable state law in
such manner and in such jurisdictions as are necessary to perfect, and maintain
perfection of, the Conveyance of such Purchased Assets from Universal Bank to
Citibank (South Dakota), (ii) that such financing statements shall name
Universal Bank, as seller, and Citibank (South Dakota), as purchaser, of the
Receivables and (iii) to deliver a file-stamped copy of such financing
statements or other evidence of such filings (excluding such continuation
statements, which shall be delivered as filed) to Citibank (South Dakota) (or to
the Master Trust Trustee, if Citibank (South Dakota) so directs) as soon as is
practicable after filing. Universal Bank also authorizes Citibank (South Dakota)
to record and file any of such financing statements and continuation statements.
(c) In connection with such Conveyance, Universal Bank and Citibank
(South Dakota) further agree that they will, at their own expense, on or before
the Closing Date, indicate in their computer files or microfiche lists that the
Receivables created in connection with the Designated Accounts have been
conveyed to Citibank (South Dakota) in accordance with this Agreement.
(d) The parties hereto intend that the conveyance of Universal Bank's
right, title and interest in and to the Receivables shall constitute a sale,
conveying good title free and clear of any liens, claims, encumbrances or rights
of others from Universal Bank to Citibank (South Dakota) and that the
Receivables shall not be part of Universal Bank's estate in the event of the
insolvency of Universal Bank or a conservatorship, receivership or similar event
with respect to Universal Bank. It is the intention of the parties hereto that
the arrangements with respect to the Receivables shall constitute a purchase and
sale of such Receivables and not a loan. If, however, it were to be determined
that the transactions evidenced hereby constitute a loan and not a
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purchase and sale, it is the intention of the parties hereto that this Agreement
shall constitute a security agreement under applicable law, and that Universal
Bank shall be deemed to have granted to Citibank (South Dakota) a first priority
perfected security interest in all of Universal Bank's right, title and
interest, whether now owned or hereafter acquired, in, to and under the
Receivables and other Purchased Assets.
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price. The "Purchase Price" for the
Receivables will be an amount as separately agreed between the parties hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of Universal Bank Relating
to Universal Bank. Universal Bank hereby represents and warrants to, and agrees
with, Citibank (South Dakota) as of the Closing Date, that:
(a) Organization and Good Standing; Affiliate. Universal Bank is a
national banking association duly organized and validly existing in good
standing under the laws of the United States of America and has, in all material
respects, full power and authority to own its properties and conduct its
business as such properties are presently owned and such business is presently
conducted, and to execute, deliver and perform its obligations under this
Agreement. Universal Bank is an Affiliate of Citibank (South Dakota) within the
meaning of the Pooling and Servicing Agreement.
(b) Due Qualification. Universal Bank is duly qualified to do business
and is in good standing as a foreign corporation (or is exempt from such
requirements) and has obtained all necessary licenses and approvals, in each
jurisdiction in which failure to so qualify or to obtain such licenses and
approvals would (i) render any credit card agreement relating to a Designated
Account or any Receivable unenforceable by Universal Bank, Citibank (South
Dakota) or the Master Trust or (ii) have a material adverse effect on Citibank
(South Dakota) or the Certificateholders.
(c) Due Authorization. The execution, delivery and performance of this
Agreement and each other document or instrument delivered pursuant hereto, if
any (such other documents or instruments, collectively, the "Conveyance Papers")
and the consummation of the transactions provided for in this Agreement and the
Conveyance Papers have been duly authorized by Universal Bank by all necessary
corporate action on the part of Universal Bank.
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(d) No Conflict. The execution and delivery of this Agreement and the
Conveyance Papers by Universal Bank, the performance of the transactions
contemplated by this Agreement and the Conveyance Papers, and the fulfillment of
the terms of this Agreement and the Conveyance Papers applicable to Universal
Bank will not conflict with, violate or result in any breach of any of the
material teams and provisions of, or constitute (with or without notice or lapse
of time or both) a material default under, any indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which Universal Bank is a party
or by which it or any of its properties are bound.
(e) No Violation. The execution, delivery and performance of this
Agreement and the Conveyance Papers by Universal Bank and the fulfillment of the
terms contemplated herein and therein applicable to Universal Bank will not
conflict with or violate any Requirements of Law applicable to Universal Bank.
(f) No Proceedings. There are no proceedings or investigations pending
or, to the best knowledge of Universal Bank, threatened against Universal Bank,
before any Governmental Authority (i) asserting the invalidity of this Agreement
or the Conveyance Papers, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or the Conveyance Papers, (iii)
seeking any determination or ruling that, in the reasonable judgment of
Universal Bank, would materially and adversely affect the performance by
Universal Bank of its obligations under this Agreement or the Conveyance Papers
or (iv) seeking any determination or ruling that would materially and adversely
affect the validity or enforceability of this Agreement or the Conveyance
Papers.
(g) All Consents. All authorizations, consents, orders or approvals of
or registrations or declarations with any Governmental Authority required to be
obtained, effected or given by Universal Bank in connection with the execution
and delivery by Universal Bank of this Agreement and the Conveyance Papers and
the performance of the transactions contemplated by this Agreement and the
Conveyance Papers by Universal Bank have been duly obtained, effected or given
and are in full force and effect.
(h) No Adverse Selection. No selection procedures believed by Universal
Bank to be adverse to the interests of Citibank (South Dakota) or the Investor
Certificateholders have been used in selecting the Designated Accounts.
Upon discovery by either Universal Bank or Citibank (South Dakota) of a
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give written notice to the other party and the
Master Trust Trustee within three Business Days following such discovery.
Section 4.02. Representations and Warranties of Universal Bank
Relating to the Agreement and the Receivables.
(a) Representations and Warranties. Universal Bank hereby represents
and warrants to Citibank (South Dakota) as of the date of this Agreement and as
of the Closing Date, that:
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(i) this Agreement and any Conveyance Paper each constitutes a
legal, valid and binding obligation of Universal Bank enforceable
against Universal Bank in accordance with its terms, except as such
enforceability may be limited by applicable conservatorship,
receivership, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and national banking
associations in particular from time to time in effect or general
principles of equity;
(ii) each Receivable has been conveyed to Citibank (South
Dakota) free and clear of any Lien on such Receivable;
(iii) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required
to be obtained, effected or given by Universal Bank in connection with
the conveyance of Receivables to Citibank (South Dakota) have been duly
obtained, effected or given and are in full force and effect; and
(iv) this Agreement constitutes a valid sale, transfer and
assignment to Citibank (South Dakota) of all right, title and interest
of Universal Bank in the Receivables and the proceeds thereof and the
Interchange payable pursuant to this Agreement and the Recoveries
payable pursuant to this Agreement, or, if this Agreement does not
constitute a sale of such property, it constitutes a grant of a first
priority perfected "security interest" (as defined in the UCC) in such
property to Citibank (South Dakota), which, in the case of existing
Receivables and the proceeds thereof and said Interchange, is
enforceable upon execution and delivery of this Agreement and which
will be enforceable with respect to such Receivables hereafter created
and the proceeds thereof upon such creation. Upon the filing of the
financing statements and, in the case of Receivables hereafter created
and the proceeds thereof, upon the creation thereof, Citibank (South
Dakota) shall have a first priority perfected security or ownership
interest in such property and proceeds.
(b) Notice of Breach. Upon discovery by either Universal Bank or
Citibank (South Dakota) of a breach of any of the representations and warranties
set forth in this Section 4.02, the party discovering such breach shall give
written notice to the other party and the Master Trust Trustee within three
Business Days following such discovery; provided that the failure to give notice
within three Business Days does not preclude subsequent notice. Universal Bank
hereby acknowledges that Citibank (South Dakota) intends to rely on the
representations hereunder in connection with representations made by Citibank
(South Dakota) to secured parties, assignees or subsequent transferees including
but not limited to transfers made by Citibank (South Dakota) to the Master Trust
pursuant to the Pooling and Servicing Agreement.
Section 4.03. Representations and Warranties of Citibank (South
Dakota). As of the Closing Date, Citibank (South Dakota) hereby represents and
warrants to, and agrees with, Universal Bank that:
(a) Organization and Good Standing; Affiliate. Citibank (South
Dakota) is a national banking association duly organized and validly existing
under the laws of the United States of America and has, in all material
respects, full power and authority to own its properties and
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conduct its business as such properties are presently owned and such business is
presently conducted and to execute, deliver and perform its obligations under
this Agreement. Citibank (South Dakota) is an Affiliate of Universal Bank within
the meaning of the Pooling and Servicing Agreement.
(b) Due Authorization. The execution and delivery of this Agreement and
the Conveyance Papers and the consummation of the transactions provided for in
this Agreement and the Conveyance Papers have been duly authorized by Citibank
(South Dakota) by all necessary corporate action on the part of Citibank (South
Dakota).
(c) No Conflict. The execution and delivery of this Agreement and the
Conveyance Papers by Citibank (South Dakota), the performance of the
transactions contemplated by this Agreement and the Conveyance Papers, and the
fulfillment of the terms of this Agreement and the Conveyance Papers applicable
to Citibank (South Dakota), will not conflict with, result in any breach of any
of the material terms and provisions of, or constitute (with or without notice
or lapse of time or both) a material default under, any indenture, contract,
agreement, mortgage, deed of trust or other instrument to which Citibank (South
Dakota) is a party or by which it or any of its properties are bound.
(d) No Violation. The execution, delivery and performance of this
Agreement and the Conveyance Papers by Citibank (South Dakota) and the
fulfillment of the terms contemplated herein and therein applicable to Citibank
(South Dakota) will not conflict with or violate any Requirements of Law
applicable to Citibank (South Dakota).
(e) No Proceedings. There are no proceedings or investigations pending
or, to the best knowledge of Citibank (South Dakota), threatened against
Citibank (South Dakota), before any court, regulatory body, administrative
agency, or other tribunal or Governmental Authority (i) asserting the invalidity
of this Agreement or the Conveyance Papers, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or the
Conveyance Papers, (iii) seeking any determination or ruling that, in the
reasonable judgment of Citibank (South Dakota), would materially and adversely
affect the performance by Citibank (South Dakota) of its obligations under this
Agreement or the Conveyance Papers or (iv) seeking any determination or ruling
that would materially and adversely affect the validity or enforceability of
this Agreement or the Conveyance Papers.
(f) All Consents. All authorizations, consents, orders or approvals of
or registrations or declarations with any Governmental Authority required to be
obtained, effected or given by Citibank (South Dakota) in connection with the
execution and delivery by Citibank (South Dakota) of this Agreement and the
Conveyance Papers and the performance of the transactions contemplated by this
Agreement and the Conveyance Papers have been duly obtained, effected or given
and are in full force and effect.
Upon discovery by Citibank (South Dakota) or Universal Bank of a breach
of any of the foregoing representations and warranties, the party discovering
such breach shall give prompt written notice to the other party.
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ARTICLE V
COVENANTS
Section 5.01. Covenants of Universal Bank. Universal Bank hereby
covenants and agrees with Citibank (South Dakota) as follows:
(a) Receivables Not To Be Evidenced by Promissory Notes. Except in
connection with its enforcement or collection of a Designated Account, Universal
Bank will take no action to cause any Receivable to be evidenced by any
instrument (as defined in the UCC).
(b) Security Interests. Except for the conveyances hereunder, Universal
Bank will not sell, pledge, assign or transfer to any other Person, or take any
other action inconsistent with Citibank (South Dakota)'s ownership of the
Receivables and the other Purchased Assets or grant, create, incur, assume or
suffer to exist any Lien on, any Receivable, whether now existing or hereafter
created, or any interest therein, and Universal Bank shall not claim any
ownership interest in the Receivables and shall defend the right, title and
interest of Citibank (South Dakota) in, to and under the Receivables and the
other Purchased Assets, whether now existing or hereafter created, against all
claims of third parties claiming through or under Universal Bank.
(c) Designated Account Allocations. (i) With respect to any Obligor
that has incurred Excluded Receivables in any Due Period, an amount of payments
made by or on behalf of such Obligor in the next following Due Period shall be
excluded from amounts of payments allocable to the Designated Accounts. Amounts
paid by or on behalf of any Obligor with respect to any Designated Account will
be attributed first to Excluded Receivables, and then to Receivables. (ii) If
Universal Bank is unable for any reason to transfer the Receivables to Citibank
(South Dakota) in accordance with the provisions of this Agreement (including,
without limitation, by reason of the application of the provisions of Section
6.02 or any order of any Governmental Authority), then, in any such event,
Universal Bank agrees (except as prohibited by any such order) to allocate and
pay to Citibank (South Dakota), after the date of such inability, all
collections with respect to the Receivables, including collections in respect of
the Receivables transferred to Citibank (South Dakota) before the occurrence of
such event, and all amounts which would have constituted such collections but
for Universal Bank's inability to transfer Receivables (up to an aggregate
amount equal to the amount of the outstanding Receivables transferred to
Citibank (South Dakota) on or before such date). For the purpose of the
immediately preceding sentence, Citibank (South Dakota) and Universal Bank shall
treat the first received of such collections with respect to the Designated
Accounts as allocable to Citibank (South Dakota) until Citibank (South Dakota)
shall have been allocated and paid collections in an amount equal to the
aggregate amount of the Principal Receivables as of the date of the occurrence
of such event. If Universal Bank and Citibank (South Dakota) are unable pursuant
to any Requirements of Law to allocate such collections as described above,
Universal Bank and Citibank (South Dakota) agree that, after the occurrence of
such event, payments on each Designated Account with respect to the principal
balance of such Designated Account (other than with respect to the Excluded
Receivables) shall be allocated first to the oldest principal balance of such
Designated Account and shall have such
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payments applied as collections in respect thereof in accordance with the terms
of this Agreement. The parties hereto agree that Finance Charge Receivables,
whenever created, accrued in respect of Principal Receivables which have been
conveyed to Citibank (South Dakota) shall continue to be property of Citibank
(South Dakota) notwithstanding any cessation of the transfer of additional
Principal Receivables to Citibank (South Dakota) and collections with respect
thereto shall continue to be allocated and paid in accordance with this
Agreement.
(d) Delivery of Collections or Recoveries. If Universal Bank receives
collections of Receivables or Recoveries, Universal Bank agrees to pay to
Citibank (South Dakota) all such collections of Receivables and Recoveries as
soon as practicable after receipt thereof.
(e) Notice of Liens. Universal Bank shall notify Citibank (South
Dakota) promptly after becoming aware of any Lien on any Receivable other than
the conveyances hereunder or under the Pooling and Servicing Agreement.
(f) Documentation of Transfer. Universal Bank shall undertake to file
the documents which would be necessary to perfect and maintain the transfer of
the security interest in and to the Purchased Assets.
(g) Periodic Rate Finance Charges. (i) Except (x) as otherwise required by
any Requirements of Law or (y) as is deemed by Universal Bank to be necessary in
order for it to maintain its credit card business on a competitive basis based
on a good faith assessment by it of the nature of the competition with respect
to the credit card business, and only if the change giving rise to such
reduction is made applicable to the comparable segment of revolving credit card
accounts owned or serviced by it which have characteristics similar to the
Designated Accounts which are the subject of such change, it shall not at any
time permit the Portfolio Yield to be less than the Average Rate. (ii) Except as
otherwise required by any Requirements of Law, (A) it shall not permit the
Portfolio Yield to be less than the highest Certificate Rate for any outstanding
Series or Class, and (B) if the amount of surplus finance charge collections for
any Group averaged over any three consecutive Due Periods is not equal to or
greater than the required surplus finance charge amount for such Group for the
last of such three consecutive Due Periods, it will not reduce the Periodic Rate
Finance Charge applicable to any Designated Account to a rate that would result
in the weighted average of the Periodic Rate Finance Charges applicable to all
the Designated Accounts as of the last day of any Due Period being less than the
sum of the weighted average of the Certificate Rates of each outstanding Series
as of such last day and 6%.
(h) Credit Card Agreements and Guidelines. Subject to compliance with
all Requirements of Law and paragraph (g) above, Universal Bank may change the
terms and provisions of the applicable Credit Card Agreements or the applicable
Credit Card Guidelines in any respect (including the calculation of the amount
or the timing of charge-offs and the Periodic Rate Finance Charges to be
assessed thereon) only if such change is made applicable to the comparable
segment of revolving credit card accounts owned or serviced by it which have the
same or substantially similar characteristics as the Designated Accounts which
are the subject of such change. Notwithstanding the above, unless required by
Requirements of Law or as permitted by
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Section 5.01(g), Universal Bank will take no action with respect to the
applicable Credit Card Agreements or the applicable Credit Card Guidelines,
which, at the time of such action Universal Bank reasonably believes will have a
material adverse effect on Citibank (South Dakota) or the Certificateholders.
(i) Official Records. Universal Bank shall maintain this Agreement as
a part of its official records.
(j) MasterCard and VISA. Universal Bank shall use its best efforts to
remain, either directly or indirectly, a member in good standing of the
MasterCard System, the VISA System and any other similar entity's or
organization's system relating to any other type of revolving credit card
accounts included as Designated Accounts.
(k) Pooling and Servicing Agreement Covenants. Universal Bank agrees
to be bound by each covenant applicable to an "Account Owner" set forth in the
Pooling and Servicing Agreement.
Section 5.02. Covenants of Citibank (South Dakota). Citibank (South
Dakota) hereby covenants and agrees with Universal Bank as follows:
(a) Citibank (South Dakota) will provide Universal Bank with such
information as Universal Bank may reasonably request to enable Universal Bank to
determine compliance with the covenants contained in Section 5.01.
(b) Citibank (South Dakota), as Servicer under the Pooling and Servicing
Agreement, will act as Servicer with respect to the Designated Accounts with the
same standard of care as it does with respect to Accounts with respect to which
it is the Account Owner.
ARTICLE VI
TERM AND PURCHASE TERMINATION
Section 6.01. Term. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue until the termination of the
Master Trust as provided in Article XII of the Pooling and Servicing Agreement.
Section 6.02. Purchase Termination. If Universal Bank voluntarily goes
into liquidation or consents to the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceeding of or relating to Universal Bank or of or
relating to all or substantially all its property, or a decree or order of a
court or agency or supervisory authority having jurisdiction in the premises for
the appointment of a conservator, receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceeding, or for the winding-up or liquidation of its affairs, shall have
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been entered against Universal Bank; or Universal Bank shall admit in writing
its inability to pay its debts generally as they become due, file a petition to
take advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors or voluntarily suspend payment of
its obligations (such voluntary liquidation, appointment, entering of such
decree, admission, filing, making or suspension, a "Dissolution Event"),
Universal Bank shall on the day of such appointment, voluntary liquidation,
entering of such decree, admission, filing, making or suspension, as the case my
be (the "Appointment Date"), immediately cease to transfer the Principal
Receivables to Citibank (South Dakota) and shall promptly give notice to
Citibank (South Dakota) and the Master Trust Trustee of such Dissolution Event.
Notwithstanding any cessation of the transfer to Citibank (South Dakota) of
additional Principal Receivables, Principal Receivables transferred to Citibank
(South Dakota) before the occurrence of such Dissolution Event and collections
in respect of such Principal Receivables and Finance Charge Receivables whenever
created, accrued in respect of such Principal Receivables, shall continue to be
property of Citibank (South Dakota) available for transfer by Citibank (South
Dakota) to the Master Trust pursuant to the Pooling and Servicing Agreement.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment. This Agreement and any Conveyance Papers and
the rights and obligations of the parties hereunder may not be changed orally,
but only by an instrument in writing signed by Universal Bank and Citibank
(South Dakota) in accordance with this Section 7.01. This Agreement and any
Conveyance Papers may be amended from time to time by Universal Bank and
Citibank (South Dakota) (i) to cure any ambiguity, (ii) to correct or supplement
any provisions herein which may be inconsistent with any other provisions herein
or in any such other Conveyance Papers, (iii) to add any other provisions with
respect to matters or questions arising under this Agreement or any Conveyance
Papers which shall not be inconsistent with the provisions of this Agreement or
any Conveyance Papers, (iv) to change, modify, delete or add any other
obligation of Citibank (South Dakota) or Universal Bank; provided, however, that
no amendment pursuant to clause (iv) of this Section 7.01 shall be effective
unless Citibank (South Dakota) has been notified in writing that the Rating
Agency Condition has been satisfied with respect thereto and Citibank (South
Dakota) has provided an officer's certificate to the Master Trust Trustee to the
effect that Citibank (South Dakota) reasonably believes that such amendment will
not have an Adverse Effect; provided, further, that such action shall not (as
evidenced by an Opinion of Counsel delivered to the Master Trust Trustee)
adversely affect in any material respect the interests of the Master Trust
Trustee or the Certificateholders, unless the Master Trust Trustee shall consent
thereto. A copy of any amendment to this Agreement shall be sent to the Rating
Agency.
Section 7.02. Governing Law. THIS AGREEMENT AND THE CONVEYANCE
PAPERS SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE
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PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.03. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt requested,
to
(a) in the case of Citibank (South Dakota),
Citibank (South Dakota), N.A.
701 E. 60th Street, North
Sioux Falls, South Dakota 57117
Attention: General Counsel
Telecopy: 605-331-4442 or 7232
(b) in the case of Universal Bank,
Universal Bank, N.A.
200 Brookstone Centre
Suite 110
Columbus, Georgia 31904
Attention: President
Telecopy: (706) 257-1733
(c) in the case of the Master Trust Trustee,
Bankers Trust Company
Four Albany Street, New York
New York 10006
Attention: Corporate Trust and Agency
Group - Structured Finance
Telecopy: (212) 250-6439
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
Section 7.04. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement or any Conveyance
Paper shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions, or terms shall be deemed severable from the remaining
covenants, agreements, provisions, and terms of this Agreement or any Conveyance
Paper and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of any Conveyance Paper.
Section 7.05. Assignment. Notwithstanding anything to the contrary
contained herein, other than any assignment of all or any portion of Citibank
(South Dakota)'s rights, title, and interests in, to, and under this Agreement
to the Master Trust Trustee for the benefit of the
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beneficiaries of the Master Trust including the Certificateholders as
contemplated by the Pooling and Servicing Agreement and Section 7.06, this
Agreement and all other Conveyance Papers may not be assigned by the parties
hereto; provided, however, that Citibank (South Dakota) shall have the right to
assign its rights, title and interests in, to and under this Agreement to (i)
any successor by merger assuming this Agreement, (ii) to any affiliate owned
directly or indirectly by Citigroup Inc. which assumes the obligations of this
Agreement or (iii) to any entity provided that the Rating Agency has advised
Citibank (South Dakota) that the Rating Agency Condition has been satisfied with
respect thereto.
Section 7.06. Acknowledgment and Agreement of Universal Bank. By
execution below, Universal Bank expressly acknowledges and agrees that all or
any portion of Citibank (South Dakota)'s right, title, and interest in, to, and
under this Agreement, including, without limitation, all or any portion of
Citibank (South Dakota)'s right, title, and interest in and to the Receivables
purchased pursuant to this Agreement, may be assigned by Citibank (South Dakota)
to the Master Trust Trustee for the benefit of the Master Trust, including the
Certificateholders, and Universal Bank consents to such assignment. Universal
Bank further agrees that notwithstanding any claim, counterclaim, right of
setoff or defense which it may have against Citibank (South Dakota), due to a
breach by Citibank (South Dakota) of this Agreement or for any other reason, and
notwithstanding the bankruptcy of Citibank (South Dakota) or any other event
whatsoever, Universal Bank's sole remedy shall be a claim against Citibank
(South Dakota) for money damages and in no event shall Universal Bank assert any
claim on or any interest in the Receivables and the other Purchased Assets or
any proceeds thereof or take any action which would reduce or delay receipt by
Certificateholders of collections with respect to the Receivables and the other
Purchased Assets.
Section 7.07. Further Assurances. Universal Bank and Citibank (South
Dakota) agree to do and perform, from time to time, any and all acts and to
execute any and all further instruments required or reasonably requested by the
other party or the Master Trust Trustee more fully to effect the purposes of
this Agreement, the Conveyance Papers and the Pooling and Servicing Agreement
including, without limitation, the execution of any financing statements or
continuation statements or equivalent documents relating to the Receivables for
filing under the provisions of the UCC or other law of any applicable
jurisdiction and prompt notification to the other party of any change of the
principal executive office of either party.
Section 7.08. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of Universal Bank or Citibank (South
Dakota), any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. Subject to Section
7.06, the rights, remedies, powers and privileges herein provided are cumulative
and not exhaustive of any rights, remedies, powers and privileges provided by
law.
Section 7.09. Counterparts. This Agreement and all Conveyance Papers
may be executed in two or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
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Section 7.10. Binding; Third-Party Beneficiaries. This Agreement and
the Conveyance Papers will inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. The Master
Trust Trustee is a third-party beneficiary of this Agreement.
Section 7.11. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement and the Conveyance Papers set forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement and the
Conveyance Papers. This Agreement and the Conveyance Papers may not be modified,
amended, waived or supplemented except as provided herein.
Section 7.12. Headings. The headings are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
Section 7.13. Schedules and Exhibits. The schedules and exhibits
attached hereto and referred to herein shall constitute a part of this Agreement
and are incorporated into this Agreement for all purposes.
Section 7.14. Survival of Representations and Warranties. All
representations, warranties and agreements contained in this Agreement, shall
remain operative and in full force and effect and shall survive conveyance of
the Receivables by Universal Bank to Citibank (South Dakota) and by Citibank
(South Dakota) to the Master Trust Trustee pursuant to the Pooling and Servicing
Agreement.
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IN WITNESS WHEREOF, Universal Bank and Citibank (South Dakota) have
caused this Receivables Purchase Agreement to be duly executed by their
respective officers as of the day and year first above written.
CITIBANK (SOUTH DAKOTA), N.A.
By: /s/ Douglas C. Morrison
--------------------------------------------------
Name: Douglas C. Morrison
Title: Vice President
UNIVERSAL BANK, N.A.
By: /s/ Meridith A. Jarrell
--------------------------------------------------
Name: Meridith A. Jarrell
Title: President and COO
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ANNEX I
DESIGNATED ACCOUNTS
[Intentionally Omitted]
1