EXECUTION COPY
CLASS B CERTIFICATE PURCHASE AGREEMENT
Dated as of July 6, 1999
among
PRIME II RECEIVABLES CORPORATION,
as Transferor,
FDS NATIONAL BANK,
as Servicer,
THE CLASS B PURCHASERS PARTIES HERETO,
and
PNC BANK, NATIONAL ASSOCIATION,
as Agent and Administrative Agent
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 1
1.1 Definitions 1
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 12
2.1 Purchases 12
2.2 Reductions and Increases of Commitments 15
2.3 Fees, Expenses, Payments, Etc 16
2.4 Requirements of Law 18
2.5 Taxes 20
2.6 Non-recourse 22
2.7 Indemnification 23
2.8 Termination Events 25
2.9 Certain Agreements of the Agent 26
SECTION 3. CONDITIONS PRECEDENT 26
3.1 Condition to Initial Purchase 26
3.2 Condition to Additional Purchase 27
SECTION 4. REPRESENTATIONS AND WARRANTIES 28
4.1 Representations and Warranties of the Transferor 28
4.2 Representations and Warranties of FDSNB 30
4.3 Representations and Warranties of the Agent
and the Class B Purchasers 32
SECTION 5. COVENANTS 32
5.1 Covenants of the Transferor and FDSNB 32
SECTION 6. MUTUAL COVENANTS REGARDING CONFIDENTIALITY 36
6.1 Covenants of Transferor, Etc. 36
6.2 Covenants of Class B Purchasers 36
SECTION 7. THE AGENTS 37
7.1 Appointment 37
7.2 Delegation of Duties 37
7.3 Exculpatory Provisions 37
7.4 Reliance by Agent 38
7.5 Notices 38
7.6 Non-Reliance on Agent and Other Class B
Purchasers 38
7.7 Indemnification 39
7.8 Agents in Their Individual Capacities 39
7.9 Successor Agent 40
SECTION 8. SECURITIES LAWS; TRANSFERS; TAX TREATMENT 41
8.1 Transfers of Class B Certificates 41
8.2 Tax Characterization of the Class B Certificates 45
SECTION 9. MISCELLANEOUS 46
9.1 Amendments and Waivers 46
9.2 Notices 47
9.3 No Waiver; Cumulative Remedies 48
9.4 Successors and Assigns 48
9.5 Successors to Servicer 49
9.6 Counterparts 50
9.7 Severability 50
9.8 Integration 50
9.9 Governing Law 50
9.10 Termination 50
9.11 Action by Servicer 50
9.12 Limited Recourse; No Proceedings 51
9.13 Survival of Representations and Warranties 51
9.14 Submission to Jurisdiction; Waivers 51
9.15 WAIVERS OF JURY TRIAL 52
LIST OF EXHIBITS
EXHIBIT A Form of Investment Letter
EXHIBIT B Form of Joinder Supplement
EXHIBIT C Form of Transfer Supplement
EXHIBIT D Form of Notice of Financing
CLASS B CERTIFICATE PURCHASE AGREEMENT, dated as of
July 6, 1999, by and among PRIME II RECEIVABLES CORPORATION, a
Delaware corporation ("Prime II Receivables Corporation"), as
Transferor (the "Transferor"), FDS NATIONAL BANK, a national
banking association ("FDSNB"), as Servicer (the "Servicer"), the
CLASS B PURCHASERS from time to time parties hereto (the "Class B
Purchasers"), and PNC BANK, NATIONAL ASSOCIATION, as Agent for
the Class B Purchasers (in such capacity, the "Agent") and as
Administrative Agent for the Class B Purchasers and the Class A
Purchasers (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, Prime II Receivables Corporation, as
Transferor, FDSNB, as Servicer, and the Trustee are parties to a
certain Pooling and Servicing Agreement dated as of January 22,
1997 (as the same may from time to time be amended or otherwise
modified, the "Master Pooling and Servicing Agreement"), and a
Series 1999-1 Variable Funding Supplement thereto, dated as of
July 6, 1999 (as the same may from time to time be amended or
otherwise modified, the "Supplement" and, together with the
Master Pooling and Servicing Agreement, the "Pooling and
Servicing Agreement");
WHEREAS, the Trust proposes to issue its Class B
Variable Funding Certificates, Series 1999-1 (the "Class B
Certificates") and its Class A Variable Funding Certificates,
Series 1999-1 (the "Class A Certificates" and, together with the
Class B Certificates, the "Series 1999-1 Variable Funding
Certificates") pursuant to the Pooling and Servicing Agreement;
WHEREAS, the Trust also proposes to issue its Class C
Certificates, Series 1999-1 (the "Class C Certificates" and,
together with the Series 1999-1 Variable Funding Certificates,
the "Series 1999-1 Certificates") pursuant to the Pooling and
Servicing Agreement; and
WHEREAS, the Class B Purchasers are willing to purchase
the Class B Certificates on the Closing Date and from time to
time thereafter to purchase VFC Additional Class B Invested
Amounts thereunder on the terms and conditions provided for
herein;
NOW THEREFORE, in consideration of the mutual covenants
herein contained, and other good and valuable consideration, the
receipt and adequacy of which are hereby expressly acknowledged,
the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Definitions. All capitalized terms used herein as
defined terms and not de fined herein shall have the meanings
given to them in the Pooling and Servicing Agreement. Each
capitalized term defined herein shall relate only to the Series
1999-1 Certificates and to no other Series of Certificates issued
by the Trust.
"Act" has the meaning specified in subsection 2.7(a) of
this Agreement.
"Additional Interest Amount" has the meaning assigned
to such term in Section 2.3(g).
"Adjusted Eurodollar Rate" shall mean, for any Fixed
Period (or any shorter period of time agreed to by the Agent and
the Transferor), an interest rate per annum (rounded upward to
the nearest 1/16th of 1%) determined pursuant to the following
formula:
LIBOR
100% - Eurodollar Rate Reserve Percentage
where "Eurodollar Rate Reserve Percentage" means, for any Fixed
Period (or any shorter period of time agreed to by the Agent and
the Transferor), the reserve percentage (expressed as a decimal,
rounded upward to the nearest 1/100th of 1%) applicable during
such Fixed Period or such shorter period (or, if more than one
such percentage shall be so applicable, the daily average of such
percentages for those days in such Fixed Period or such shorter
period during which any such percentage shall be so applicable)
under regulations issued from time to time by the Federal Reserve
Board for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve
requirement) with respect to "Eurocurrency" funding (currently
referred to as "Eurocurrency liabilities") having a term
comparable to such Fixed Period or such shorter period.
"Administrative Agent" has the meaning specified in the
preamble to this Agreement.
"Affected Party" shall mean, (i) the Agent, (ii) the
Administrative Agent, and (iii) with respect to any Structured
Purchaser, any Support Bank of such Structured Purchaser.
"Agent" shall mean PNC, in its capacity as Agent for
the Class B Purchasers, or any successor agent hereunder.
"Agent Base Rate" shall mean, for any day, a
fluctuating interest rate per annum as shall be in effect from
time to time, which rate shall be at all times equal to the
higher of:
(a) the rate of interest in effect for such day as
publicly announced from time to time by PNC in Pittsburgh,
Pennsylvania as its "prime rate." Such "prime rate" is set
by PNC based upon various factors, including PNC's costs and
desired return, general economic conditions and other
factors, and is used as a reference point for pricing some
loans, which may be priced at, above or below such announced
rate, and
(b) 0.50% per annum above the latest Federal Funds
Rate.
"Agreement" shall mean this Class B Certificate
Purchase Agreement, as amended, modified or otherwise
supplemented from time to time.
"Alternate Rate" shall mean, for any Fixed Period (or,
with respect to the Adjusted Eurodollar Rate, a shorter period of
time agreed to by the Agent and the Transferor) with respect to
the portion of the Class B Investor Principal Balance owed to a
Class B Purchaser, an interest rate per annum equal to, at the
Transferor's option: (a) the Applicable Margin, plus the Adjusted
Eurodollar Rate for such Fixed Period or such shorter period, or
(b) the Agent Base Rate for such Fixed Period; provided, however,
that in the case of:
(i) any Fixed Period (or, with respect to the Adjusted
Eurodollar Rate, any such shorter period) on or prior to the
date on which such Class A Purchaser shall have notified the
Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful,
or any central bank or other Governmental Authority asserts
that it is unlawful for such Class B Purchaser (or, in the
case of a Structured Purchaser, for any entity providing
funds to such Structured Purchaser at an interest rate
determined by reference to the Adjusted Eurodollar Rate or a
similar rate) to fund such portion of the Class B Investor
Principal Balance at the Alternate Rate described above (and
such Class A Purchaser shall not have subsequently notified
the Agent that such circumstances no longer exist),
(ii) any Fixed Period of less than 30 days; provided,
that the Agent and the Transferor may agree that the
Adjusted Eurodollar Rate may apply to a period of less than
30 days,
(iii) any Fixed Period as to which: (A) the Agent does
not receive notice before 4:00 p.m. (Pittsburgh,
Pennsylvania time) on: (1) the Business Day immediately
preceding the first day of such Fixed Period that the
Transferor desires the related portion of the Class B
Investor Principal Balance to be funded at the Commercial
Paper Rate, or (2) the third Business Day preceding the
first day of such Fixed Period, or the second Business Day
preceding the last day of any shorter period agreed to by
the Agent and the Transferor, in either case, that the
Transferor desires that the related portion of the Class B
Investor Principal Balance to be funded at the Alternate
Rate and based on the Adjusted Eurodollar Rate, or (B) the
Agent shall have notified the Transferor that funding the
related portion of the Class B Investor Principal Balance at
the Commercial Paper Rate for any period of time is (in the
Agent's sole discretion) economically inadvisable to the
related Class B Purchaser, the Agent or the Transferor, or
such Class B Purchaser is not permitted to issue commercial
paper notes for any period of time to fund the Class B
Investor Principal Balance hereunder, or
(iv) any Fixed Period relating to a Class B Investor
Principal Balance that is less than $5,000,000,
the "Alternate Rate" for each such Fixed Period shall be an
interest rate per annum equal to the Agent Base Rate in effect on
each day of such Fixed Period.
"Applicable Margin" means, with respect to any purchase
for which Yield is calculated based on the Adjusted Eurodollar
Rate and the applicable Class B Purchaser is (a) Market Street
Capital Corp., 0.0%, or (b) any other Class B Purchaser, 0.75%.
"Assignee" and "Assignment" have the respective
meanings specified in subsection 8.1(e) of this Agreement.
"Business Day" means any day on which (i) banks are not
authorized or required to close in New York City or Pittsburgh,
Pennsylvania, and (ii) if such term is used in connection with
the Adjusted Eurodollar Rate, dealings are carried out in the
London interbank market.
"Class A Certificates" has the meaning specified in the
recitals to this Agreement.
"Class B Certificates" has the meaning specified in the
recitals to this Agreement.
"Class B Fee Letter" shall mean that certain letter
agreement, designated therein as the Series 1999-1 Class B Fee
Letter and dated as of the date hereof, among the Agent, the
Transferor and the Servicer, as such letter agreement may be
amended or otherwise modified from time to time.
"Class B Investor Principal Balance" shall mean, when
used with respect to any Business Day, an aggregate amount equal
to (a) the Class B Initial Invested Amount, plus (b) the
aggregate VFC Additional Class B Invested Amounts purchased by
the Class A Certificateholders through the end of the preceding
Business Day pursuant to Section 6.15 of the Pooling and
Servicing Agreement, minus (c) the aggregate amount of principal
payments made to the Class A Certificateholders prior to such
Business Day.
"Class B Owners" shall mean, with respect to any Class
B Certificate held by the Agent hereunder for the benefit of
Class B Purchasers, the owners of the Class B Invested Amount
represented by such Class B Certificate as reflected on the books
of the Class A Agent in accordance with this Agreement.
"Class B Program Fee" shall mean the ongoing fees
payable to the Agent or the Class B Purchasers in the amounts and
on the dates set forth in the Class B Fee Letter.
"Class B Purchasers" has the meaning specified in the
preamble to this Agreement.
"Class B Repayment Amount" shall mean the sum of all
amounts payable with respect to the principal amount of the Class
B Certificates and interest on the Class B Certificates and all
other amounts (other than amounts payable pursuant to subsection
2.3(b) or (c), the last sentence of subsection 2.6(a) and Section
2.7 hereof unless such amounts are not paid by the Servicer
pursuant to this Agreement) owing to the Class B Purchasers
hereunder.
"Class C Certificates" has the meaning specified in the
recitals to this Agreement.
"Closing Date" shall mean July 6, 1999.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Commercial Paper Rate" shall mean, for any Fixed
Period for any portion of the Class B Investor Principal Balance,
to the extent a Structured Purchaser funds such portion for such
Fixed Period by issuing commercial paper notes, a rate calculated
by the Agent equal to: (a) the rate (or if more than one rate,
the weighted average of the rates) at which commercial paper
notes of such Structured Purchaser on each day during such Fixed
Period have been outstanding such Structured Purchaser; provided,
that if such rate(s) is a discount rate(s), then the Commercial
Paper Rate shall be the rate (or if more than one rate, the
weighted average of the rates) resulting from converting such
discount rate(s) to an interest-bearing equivalent rate, plus (b)
the commissions and charges charged by such placement agent or
commercial paper dealer with respect to such commercial paper
notes, expressed as a percentage of the face amount of such
commercial paper notes and converted to an interest-bearing
equivalent rate per annum.
"Committed Class B Purchaser" shall mean any Class B
Purchaser which has a Commitment, as set forth in its respective
Joinder Supplement and any Assignee of such Class B Purchaser to
the extent of the portion of such Commitment assumed by such
Assignee pursuant to its respective Transfer Supplement.
"Commitment" shall mean, for any Committed Class B
Purchaser, the maximum amount of such Committed Class B
Purchaser's commitment to purchase a portion the Class B Invested
Amount, as set forth in the Joinder Supplement or the Transfer
Supplement by which such Committed Class B Purchaser became a
party to this Agreement or assumed the Commitment (or a portion
thereof) of another Committed Class B Purchaser, as such amount
may be adjusted from time to time pursuant to Transfer
Supplement(s) executed by such Committed Class B Purchaser and
its Assignee and delivered pursuant to Section 8.1 of this
Agreement or pursuant to Section 2.2 of this Agreement.
"Commitment Expiration Date" shall mean, for each
Committed Class B Purchaser, the earlier to occur of (i) the date
set forth in the Joinder Supplement or the Transfer Supplement by
which such Committed Class B Purchaser became a party to this
Agreement or assumed the Commitment (or a portion thereof) of
another Committed Class B Purchaser, as such date may be extended
from time to time by mutual agreement of all Class B Purchasers,
the Agent and the Transferor, and (ii) the date that the
commitment of any Support Bank to such Committed Class B
Purchaser terminates under any liquidity agreement or credit
agreement which relates to this Agreement.
"Commitment Percentage" shall mean, for a Committed
Class B Purchaser, such Class B Purchaser's Commitment as a
percentage of the aggregate Commitments of all Committed Class B
Purchasers.
"Defaulting Purchaser" has the meaning specified in
subsection 2.1(e) of this Agreement.
"Downgraded Purchaser" has the meaning specified in
subsection 8.1(k).
"Eligible Assignee" shall mean PNC and each other
Person listed in a letter from the Agent to the Transferor dated
the Closing Date, as such list may be augmented from time to time
with the consent of the Agent and the Transferor.
"Excluded Taxes" has the meaning specified in
subsection 2.5(a) of this Agreement.
"FDSNB" has the meaning specified in the preamble to
this Agreement.
"Federal Funds Rate" means, for any day, the per annum
rate set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal
Reserve Board (including any such successor, "H.15(519)") for
such day opposite the caption "Federal Funds (Effective)." If on
any relevant day such rate is not yet published in H.15(519), the
rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m.
Quotations for U.S. Government Securities, or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor, the "Composite 3:30 p.m.
Quotations") for such day under the caption "Federal Funds
Effective Rate." If on any relevant day the appropriate rate is
not yet published in either H.15(519) or the Composite 3:30 p.m.
Quotations, the rate for such day will be the arithmetic mean as
determined by the Agent of the rates for the last transaction in
overnight Federal funds arranged before 9:00 a.m. (New York time)
on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Agent.
"Federal Reserve Board" means the Board of Governors of
the Federal Reserve System, or any entity succeeding to any of
its principal functions.
"Fixed Period" shall mean, with respect to a Class B
Purchaser and any portion of the Class B Investor Principal
Balance owed to such Class B Purchaser, a period from and
including a Distribution Date to, but excluding, the next
succeeding Distribution Date; provided that (i) the first Fixed
Period shall commence on the Closing Date and end on the first
Distribution Date, (ii) in the case of any Fixed Period for any
portion of the Class B Principal Balance which commences before
the Termination Date and would otherwise end on a date occurring
after the Termination Date, such Fixed Period shall end on the
Termination Date and the duration of each Fixed Period which
commences on or after the Termination Date shall be of such
duration as shall be selected by the Agent, and (iii) upon the
occurrence, and during the continuance, of an event described in
clause (iii)(B) of the definition of Alternate Rate, the Agent
may, upon notice to the Transferor, terminate any Fixed Period
then in effect if Yield for such Fixed Period is calculated on
the basis of the Commercial Paper Rate. Any portion of the Class
B Investor Principal Balance allocated to any such terminated
Fixed Period shall (i) initially be reallocated to a Fixed Period
beginning on such date of termination and ending on (but
excluding) the third Business Day immediately succeeding such
date of termination and the Yield during such Fixed Period shall
be calculated based on the Alternate Rate as set forth in the
definition thereof, and (ii) then be reallocated to a Fixed
Period beginning on such third Business Day and ending on (but
excluding) the immediately succeeding Distribution Date and the
Yield during such Fixed Period shall be calculated based on the
Alternate Rate as set forth in the definition thereof.
"Governmental Authority" shall mean any nation or
government, any state or other political subdivision thereof and
any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Indemnitee" has the meaning specified in subsection
2.7(a) of this Agreement.
"Indemnifying Party" has the meaning specified in
subsection 2.7(b) of this Agreement.
"Investing Office" shall mean, with respect to any
Affected Party, any office of such Affected Party which is a
beneficial holder of a portion of the Class B Certificates.
"Investment Letter" has the meaning specified in
subsection 8.1(a) of this Agreement.
"Joinder Supplement" has the meaning specified in
subsection 2.2(d) of this Agreement.
"LIBOR" shall mean, with respect to any Fixed Period
(or any shorter period agreed to by the Agent and the Transferor)
for any Class B Investor Amount to be funded at the Adjusted
Eurodollar Rate, the rate of interest per annum determined by the
Agent to be the arithmetic mean (rounded upward to the nearest
1/16th of 1%) of the rates of interest per annum notified to the
Agent by the Reference Bank as the rate of interest at which
dollar deposits in the approximate amount of such Class B
Investor Principal Amount to be funded at the Adjusted Eurodollar
Rate during such Fixed Period or such shorter period would be
offered by major banks in the London interbank market to the
Reference Bank at its request at or about 11:00 a.m. (London
time) on the second Business Day before the commencement of such
Fixed Period or such shorter period.
"Liquidation Day" shall mean, for any Class B Purchaser
and any portion of the Class B Investor Principal Balance owed to
such Purchaser (a) any day other than a Distribution Date or a
Business Day on which a decrease in the Class B Investor
Principal occurs pursuant to, and in accordance with, Section
2.3(h), on which a reduction of such portion of the Class B
Investor Principal Balance occurs, (b) any Purchase Date on which
the conditions set forth in Sections 3.2 of the Agreement are not
satisfied, and (c) any day on which the Agent reallocates any
portion of the Class B Investor Principal Balance as the result
of the termination of a Fixed Period pursuant to clause (iii)(B)
of the definition thereof.
.
"Liquidation Fee" shall mean, for any Class B Purchaser
and for any Liquidation Day, the amount, if any, by which (i)
the additional Yield (calculated without taking into account any
Liquidation Fee) which would have accrued during the current
Fixed Period or, with respect to the Adjusted Eurodollar Rate,
any shorter period agreed to by the Agent and the Transferor
(without giving effect to any termination of such Fixed Period or
such shorter period) on the portion of the Class B Investor
Principal Balance owed to such Class B Purchaser, exceeds (ii)
the income, if any, received by such Class B Purchaser from
investing the proceeds of such reduction of the Class B Investor
Principal Balance.
"Master Pooling and Servicing Agreement" has the
meaning specified in the recitals to this Agreement.
"Moody's" shall mean Moody's Investors Service, Inc.
"Noncommitted Class B Purchaser" shall mean a Class B
Purchaser which is not a Committed Class B Purchaser.
"Noncommitted Purchaser Percentage" shall mean for each
Class B Purchaser which is not a Committed Class B Purchaser, the
percentage set forth in its Joinder Supplement or the Transfer
Supplement by which such Class B Purchaser became a party to this
Agreement, as such percentage may be adjusted from time to time
pursuant to Transfer Supplement(s) executed by such Class B
Purchaser and any Assignee and delivered pursuant to Section 8.1
of this Agreement.
"Nondefaulting Purchaser" has the meaning specified in
subsection 2.1(e) of this Agreement.
"Participant" has the meaning specified in subsection
8.1(d) of this Agreement.
"Participation" has the meaning specified in subsection
8.1(d) of the Agreement.
"Percentage Interest" shall mean, for a Class B
Purchaser, (a) the sum of (i) the portion of the Class B Initial
Invested Amount (if any) purchased by such Class B Purchaser,
plus (ii) the aggregate VFC Additional Class B Invested Amounts
(if any) purchased by such Class A Purchaser through the end of
the preceding Business Day pursuant to Section 6.15 of the
Pooling and Servicing Agreement, plus (iii) any portion of the
Class B Investor Principal Balance acquired by such Class B
Purchaser as an Assignee from another Class B Purchaser pursuant
to a Transfer Supplement executed and delivered pursuant to
Section 8.1 of this Agreement, minus (iv) the aggregate amount of
principal payments made to such Class A Purchaser prior to such
Business Day, minus (v) any portion of the Class B Investor
Principal Balance assigned by such Class B Purchaser to an
Assignee pursuant to a Transfer Supplement executed and delivered
pursuant to Section 8.1 of this Agreement, as a percentage of (b)
the aggregate Class B Investor Principal Balance.
"PNC" shall mean PNC Bank, National Association.
"Pooling and Servicing Agreement" has the meaning
specified in the recitals to this Agreement.
"Prime II Receivables Corporation" has the meaning
specified in the preamble to this Agreement.
"Purchase Date" shall mean the Closing Date and each
date on which a purchase of a VFC Additional Class B Invested
Amount is to occur in accordance with Section 6.15 of the Pooling
and Servicing Agreement and Section 2.1 hereof.
"Purchase Request" shall have the meaning assigned to
such term in Section 2.1(c).
"Rating Agency" shall mean each of Moody's and Standard
& Poor's.
"Reference Bank" means PNC.
"Reduction Amount" has the meaning specified in
subsection 2.6(a) of this Agreement.
"Regulatory Change" shall mean (i) as to each Class B
Purchaser, any change occurring after the date of the execution
and delivery of the Joinder Supplement or the Transfer Supplement
by which it became party to this Agreement, or, in the case of a
Participant, the date on which its Participation became
effective, or (ii) as to any Affected Party, the date it became
such an Affected Party, in any (or the adoption after such date
of any new):
(i) United States Federal or state law or foreign law
applicable to such Class B Purchaser, Affected Party or
Participant; or
(ii) regulation, interpretation, directive, guideline
or request (whether or not having the force of law)
applicable to such Class B Purchaser, Affected Party or
Participant of any court or other judicial authority or any
Governmental Authority charged with the interpretation or
administration of any law referred to in clause (i) or of
any fiscal, monetary or other authority or central bank
having jurisdiction over such Class B Purchaser, Affected
Party or Participant.
"Related Documents" shall mean, collectively, this
Agreement (including the Class B Fee Letter and all Joinder
Supplements and Transfer Supplements), the Master Pooling and
Servicing Agreement, the Supplement, the Series 1999-1
Certificates, and the Receivables Purchase Agreement.
"Replacement Purchaser" has the meaning specified in
subsection 2.4(c) of this Agreement.
"Required Class B Owners" shall mean, at any time,
Class B Purchasers having Percentage Interests aggregating at
least 50.1%.
"Required Class B Purchasers" shall mean, at any time,
Committed Class B Purchasers having Commitments aggregating at
least 50.1% of the aggregate Commitments of all Committed Class B
Purchasers.
"Requirement of Law" shall mean, as to any Person, any
law, treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, in each case applicable to
or binding upon such Person or to which such Person is subject,
whether federal, state or local (including, without limitation,
usury laws, the Federal Truth in Lending Act and Regulation Z and
Regulation B of the Board of Governors of the Federal Reserve
System).
"Reserve Account Increase Notice" shall mean a notice
delivered by the Administrative Agent in accordance with Section
2.8 hereof.
"Series 1999-1 Certificates" has the meaning specified
in the recitals to this Agreement.
"Series 1999-1 Variable Funding Certificates" has the
meaning specified in the recitals to this Agreement.
"Servicer" has the meaning specified in the preamble to
this Agreement.
"Standard & Poor's" shall mean Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies, Inc.
"Structured Purchaser" shall mean (i) Market Street
Capital Corp., and (ii) any Class B Purchaser whose principal
business consists of issuing commercial paper, medium term notes
or other securities to fund its acquisition and maintenance of
receivables, accounts, instruments, chattel paper, general
intangibles and other similar assets or interests therein and
which is required by any nationally recognized rating agency
which is rating such securities to obtain from its principal
debtors an agreement such as that set forth in subsection 9.12(b)
of this Agreement in order to maintain such rating.
"Supplement" has the meaning specified in the recitals
to this Agreement.
"Support Bank" shall mean any Person extending or
having a commitment to extend funds to or for the account of any
Structured Purchaser, including by agreement to (i) purchase an
assignment of, or participation in Class B Certificates under a
liquidity or credit support agreement which relates to this
Agreement, (ii) provide one or more letters of credit for the
account of such Structured Purchaser, and (iii) issue one or more
surety bonds under which such Structured Purchaser is obligated
to repay such Person for any drawings thereunder.
"Taxes" has the meaning specified in subsection 2.5(a)
of this Agreement.
"Termination Date" shall mean the Amortization Period
Commencement Date.
"Termination Event" has the meaning specified in
Section 2.8 hereof.
"Transfer" has the meaning specified in subsection
8.1(c) of this Agreement.
"Transfer Supplement" has the meaning specified in
subsection 8.1(e) of this Agreement.
"Transferor" has the meaning specified in the preamble
to this Agreement.
"Trust" shall mean the Prime Credit Card Master Trust
II.
"Trustee" shall mean The Chase Manhattan Bank, a
banking corporation organized and existing under the laws of the
State of New York, in its capacity as Trustee under the Pooling
and Servicing Agreement, together with its successors in such
capacity.
"written" or "in writing" (and other variations
thereof) shall mean any form of written communication or a
communication by means of telex, telecopier device, telegraph or
cable.
"Yield" shall mean, for any Business Day the aggregate
of the following amounts:
(i) for each portion of the Class B Investor
Principal Balance owed to a Structured Purchaser to the
extent that such Structured Purchaser has funded such
portion through the issuance of commercial paper notes on
the immediately preceding Business Day,
PB x CPR x ED + LF + AI
360
and
(ii) for each remaining portion of the Class B
Investor Principal Balance,
PB x AR x ED + LF + AI
TD
where:
PB = the relevant portion of the Class B
Investor Principal Balance
CPR = the Commercial Paper Rate then
applicable to the relevant portion of the Class B
Investor Principal Balance
AR = the Alternate Rate then applicable
to the relevant portion of the Class B Investor
Principal Balance
ED = the number of days elapsed since
the immediately preceding Business Day
TD = 360 if AR is the Adjusted
Eurodollar Rate, or 365 or 366, as applicable, if
AR is the Agent Base Rate
LF = the Liquidation Fee, if any, for
such Business Day
AI = the Additional Interest Amount, if
any, for such Business Day.
If during any Fixed Period any portion of the Class B
Invested Principal Balance is funded through the issuance of
commercial paper notes, the Servicer shall make daily allocations
of Class B Interest based on the Commercial Paper Rate applicable
to the immediately preceding Fixed Period (or, in the event that
no portion of the Class B Investor Principal Balance accrued
Yield at the Commercial Paper Rate during such immediately
preceding Fixed Period, the Agent will on the first day of the
related Fixed Period provide the Servicer an estimate of the
Commercial Paper Rate applicable to such portion of the Class B
Investor Principal Balance and such Fixed Period). It is
understood and agreed that (i) the Commercial Paper Rate
described in the immediately preceding sentence will be used
solely for purposes of making daily allocations of Class B
Interest under the Supplement, and (ii) any resulting differences
between such estimated daily allocations and the actual Yield for
such Fixed Period shall be reconciled as set forth in the
definitions of Class B Carrying Costs.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Purchases. (a) On and subject to the terms and
conditions of this Agreement, each Noncommitted Class B Purchaser
which is a party hereto on the Closing Date, severally, agrees to
acquire its Noncommitted Purchaser Percentage of the Class B
Certificates on the Closing Date for a purchase price equal to
its Noncommitted Purchaser Percentage of the Initial Class B
Invested Amount, which shall not be less than $500,000, and each
Committed Class B Purchaser which is a party hereto on the
Closing Date, severally, agrees to acquire its Commitment
Percentage of the Class B Certificates not so acquired by
Noncommitted Class B Purchasers on the Closing Date for a
purchase price equal to the portion of the Initial Class B
Invested Amount represented thereby on the Closing Date. Such
purchase price shall be made available to the Transferor on the
Closing Date, subject to the satisfaction of the conditions
specified in Section 3 hereof, by wire transfer at or prior to
2:00 p.m. Pittsburgh, Pennsylvania time on the Closing Date at an
account of the Transferor specified in writing by the Transferor
to the Agent in funds immediately available to the Transferor;
provided, that, in any event, the Agent shall notify the
Transferor at or prior to 1:00 p.m. Pittsburgh, Pennsylvania
time, if such wire transfer will not be initiated at or prior to
2:00 p.m. Pittsburgh, Pennsylvania time on the Closing Date. The
Class B Purchasers hereby direct that the Class B Certificates be
registered in the name of the Agent, on behalf of the Class B
Owners from time to time hereunder.
(b) On and subject to the terms and conditions of this
Agreement and prior to the Termination Date, (i) each
Noncommitted Class B Purchaser may purchase its Noncommitted
Purchaser Percentage of any VFC Additional Class B Invested
Amount offered for purchase by the Transferor pursuant to Section
6.15 of the Pooling and Servicing Agreement in an amount of not
less than $500,000, and (ii) each Committed Class B Purchaser,
severally, agrees to purchase a portion of such VFC Additional
Class B Invested Amount which is not purchased by Noncommitted
Class B Purchasers pursuant to clause (i) in an amount equal to
the lesser of (A) its Commitment Percentage thereof, or (B) the
excess of its Commitment over its Percentage Interest of the
Class B Investor Principal Balance (determined prior to giving
effect to such purchase), in either case for a purchase price
equal to the VFC Additional Class B Invested Amount so purchased.
Such purchase price shall be made available to the Trustee in
immediately available funds, by wire transfer at or prior to 2:00
p.m. Pittsburgh, Pennsylvania time on the applicable Purchase
Date for the account of the Transferor, subject to the
satisfaction of the conditions specified in Section 3 hereof, on
the applicable Purchase Date specified pursuant to subsection
2.1(c), for deposit in the Proceeds Account held by the Trustee
pursuant to the Supplement; provided, that, in any event, the
Agent shall notify the Transferor at or prior to 1:00 p.m.
Pittsburgh, Pennsylvania time, if such wire transfer will not be
initiated at or prior to 2:00 p.m. Pittsburgh, Pennsylvania time
on such Purchase Date. Each Noncommitted Class B Purchaser which
is a Structured Purchaser confirms by becoming a party to this
Agreement that, subject to the terms and conditions of this
Agreement, it currently intends to purchase its Noncommitted
Purchaser Percentage of any VFC Additional Class B Invested
Amount offered for purchase by the Transferor pursuant to Section
6.15 of the Pooling and Servicing Agreement to the extent that,
at the time of such purchase, it is permitted and able in the
ordinary course of its business to issue commercial paper which
is rated not lower than the respective ratings assigned by
Moody's and Standard & Poor's on the date on which such
Structured Purchaser became a Class B Purchaser (without
increasing or otherwise modifying any letter of credit or other
enhancement provided to such Structured Purchaser or any
liquidity support provided to such Structured Purchaser by
Affected Parties) in sufficient amounts fully to fund such
purchase.
(c) The purchase of the Initial Class B Invested
Amount and each purchase of any VFC Additional Class B Invested
Amount shall be made on prior written notice in the form of
Exhibit D (a "Purchase Request") from the Transferor to the Agent
received by the Agent not later than 4:00 p.m. Pittsburgh,
Pennsylvania time (i) in the case of a purchase to be funded at
the Alternate Rate based upon the Adjusted Eurodollar Rate, on
the third Business Day immediately preceding the applicable
Purchase Date (or, in the case of the initial purchase, the
Closing Date), (ii) in the case of a purchase to be funded at the
Commercial Paper Rate on the Business Day immediately preceding
the applicable Purchase Date (or, in the case of the initial
purchase, the Closing Date), or (iii) in the case of a purchase
to be funded at the Alternate Base Rate based upon the Agent Base
Rate, on the Business Day (or, in the event that Market Street
Capital Corporation is the applicable Class B Purchaser, the
second Business Day) immediately preceding the applicable
Purchase Date (or, in the case of the initial purchase, the
Closing Date). Each such Purchase Request shall be irrevocable
and shall specify (i) the aggregate Initial Class B Invested
Amount or VFC Additional Class B Invested Amount, as the case may
be, to be purchased and (ii) the applicable Purchase Date (which
shall be a Business Day). The Agent shall promptly forward a
copy of such Purchase Request to each Class B Purchaser. In the
case of the purchase of a VFC Additional Class B Invested Amount,
each Noncommitted Class B Purchaser shall notify the Agent by
10:45 a.m., Pittsburgh, Pennsylvania time, on the applicable
Purchase Date whether it has determined to make such purchase
and, if so, whether all of the terms specified by the Transferor
are acceptable to such Noncommitted Class B Purchaser. In the
event that a Noncommitted Class B Purchaser shall not have timely
provided such notice, it shall be deemed to have determined not
to make such purchase. The Agent shall notify the Transferor and
each Committed Class B Purchaser on or prior to 11:00 a.m.,
Pittsburgh, Pennsylvania time, on the applicable Purchase Date of
whether each Noncommitted Class B Purchaser has so determined to
purchase its share of such VFC Additional Class B Invested Amount
and, in the event that Noncommitted Class B Purchasers have not
determined to purchase the entire VFC Additional Class B Invested
Amount, the Agent shall specify in such notice (i) the portion of
the VFC Additional Class B Invested Amount to be purchased by
each Committed Class B Purchaser, (ii) the applicable Purchase
Date (which shall be a Business Day). Notwithstanding anything
else herein to the contrary, if the Transferor has requested that
the purchase be funded at the Commercial Paper Rate, the Agent
shall notify the Transferor no later than 12:00 (noon)
Pittsburgh, Pennsylvania time on the applicable Purchase Date,
whether the Agent has exercised its discretion not to fund such
purchase with the issuance of commercial paper notes as described
in clause (iii)(B) of the definition of Commercial Paper Rate, in
which case the Transferor shall be deemed to have requested that
the purchase be funded at the Alternate Base Rate and be based
upon the Agent Base Rate.
(d) In no event may the Transferor offer any VFC
Additional Class B Invested Amount for purchase hereunder or
under Section 6.15 of the Pooling and Servicing Agreement, nor
shall any Committed Class B Purchaser be obligated to purchase
any VFC Additional Class B Invested Amount, to the extent that
such VFC Additional Class B Invested Amount, when aggregated with
the Class B Investor Principal Balance determined prior to giving
effect to the issuance thereof, would exceed the aggregate
Commitments.
(e) In the event that one or more Committed Class B
Purchasers (the "Defaulting Purchasers") fails to fund its
Committed Percentage of any purchase of a VFC Additional Class B
Invested Amount by 1:00 p.m., Pittsburgh, Pennsylvania time, on
the applicable Purchase Date and the Servicer shall have notified
the Agent of such failure by not later than 1:30 p.m.,
Pittsburgh, Pennsylvania time, on such Purchase Date, the Agent
shall so notify each of the other Committed Class B Purchasers
(the "Nondefaulting Purchasers") not later than 2:30 p.m.,
Pittsburgh, Pennsylvania time, on such Purchase Date, and each
Nondefaulting Purchaser shall, subject to the satisfaction of the
conditions specified in Section 3 hereof, purchase a portion of
the aggregate VFC Additional Class B Invested Amount which was to
be purchased by the Defaulting Purchasers equal to the lesser of
(i) its Commitment Percentage thereof as a percentage of the
aggregate Commitment Percentages of all Nondefaulting Purchasers,
and (ii) the excess of its Commitment over its Percentage
Interest of the Class B Investor Principal Balance (determined
prior to giving effect to such purchase), in either case for a
purchase price equal to the VFC Additional Class B Invested
Amount so purchased, by making such purchase price available to
the Trustee for the account of the Transferor on such Purchase
Date for deposit in the Proceeds Account in immediately available
funds. No such purchase by Nondefaulting Purchasers shall
relieve any Defaulting Purchaser of its obligations to make
purchases hereunder, and each Defaulting Purchaser shall from and
after the applicable Purchase Date be obligated to purchase the
portion of any VFC Additional Class B Invested Amount which such
Defaulting Purchaser was required to purchase hereunder and which
was purchased by a Nondefaulting Purchaser from such
Nondefaulting Purchaser at a purchase price equal to (i) the
portion of the Class B Investor Principal Balance represented
thereby, plus (ii) accrued and unpaid interest thereon at the
applicable Class B Certificate Rate, plus (iii) an amount
calculated at the rate of 1.0% per annum from the applicable
Purchase Date for such VFC Additional Class B Invested Amount
through the date of such purchase by the Defaulting Purchaser.
The Transferor shall have the right to replace any Defaulting
Purchaser hereunder with a Replacement Purchaser, and the Agent,
acting at the request of the Required Class B Purchasers, shall
have the right to replace such Defaulting Purchaser with a
Replacement Purchaser which is an Eligible Assignee or is
otherwise reasonably acceptable to the Transferor; provided, that
(x) such replacement shall not affect the Defaulting Purchaser's
right to receive any amounts otherwise owed to it hereunder, when
and as the same would have been due and payable without regard to
such replacement (subject to the rights of the other parties
hereto with respect to such Defaulting Purchaser), and (y) such
Replacement Purchaser shall, concurrently with its becoming a
Committed Class B Purchaser hereunder, purchase the portion of
any VFC Additional Class B Invested Amount at the time required
to be purchased by the Defaulting Purchaser pursuant to the
preceding sentence for a purchase price equal to (i) the portion
of the Class B Investor Principal Balance represented thereby,
plus (ii) accrued and unpaid interest thereon at the applicable
Class B Certificate Rate; provided further, that upon any such
replacement and purchase by a Replacement Purchaser, any amounts
owing to Nondefaulting Purchasers by such Defaulting Purchaser
under clause (iii) of the preceding sentence shall remain an
obligation of such Defaulting Purchaser.
(f) The Class B Certificates shall be paid as provided
in the Pooling and Servicing Agreement. The Agent shall allocate
each payment in reduction of the Class B Investor Principal
Balance to the Class B Owners pro rata based on their respective
Percentage Interests, and shall allocate each payment of Class B
Interest for any Business Day to the Class B Owners pro rata
based on the Yield on such Class B Owner's portion of the Class B
Investor Principal Balance for such Business Day. Amounts so
allocated by the Agent shall be distributed by the Agent to the
respective Class B Owners when and as received by the Agent from
the Trust.
2.2 Reductions and Increases of Commitments. (a) At
any time the Transferor may, upon at least five Business Days'
prior written notice to the Agent, terminate in whole or reduce
in part the portion of the Commitments which exceed the then
outstanding Class B Investor Principal Balance (after adjustments
thereto occurring on the date of such termination or reduction).
Each such partial reduction shall be in an aggregate amount of
$10,000,000 or integral multiples thereof. On the Termination
Date, the aggregate Commitments shall automatically reduce to an
amount equal to the Class B Investor Principal Balance on such
day, and on each Business Day thereafter shall be further reduced
by an amount equal to the reduction in the Class B Investor
Principal Balance (if any) on such day. Reductions of the
aggregate Commitments pursuant to this subsection 2.2(a) shall be
allocated to the pro rata to the Commitments of each Committed
Class A Purchaser based on its respective Commitment Percentage.
(b) The Transferor may, upon at least two Business
Days' prior written notice to the Agent, terminate in whole or
reduce in part the Commitment of any Defaulting Purchaser or
Downgraded Purchaser to an amount not less than such Class B
Purchaser's Percentage Interest of the Class B Investor Principal
Balance. Each such partial reduction shall be in an aggregate
amount of 1,000,000 or integral multiples thereof. No such
termination of reduction shall relieve such Defaulting Purchaser
of its obligations to Nondefaulting Purchasers pursuant to
subsection 2.1(e) hereof.
(c) The aggregate Commitments of the Committed Class B
Purchasers may be increased from time to time through the
increase of the Commitment of one or more Committed Class B
Purchasers; provided, however, that no such increase shall have
become effective unless (i) the Agent and the Transferor shall
have given their written consent thereto, (ii) such increasing
Committed Class B Purchaser shall have entered into an
appropriate amendment or supplement to this Agreement reflecting
such increased Commitment and (iii) such conditions, if any, as
the Agent shall have required in connection with its consent
(including, without limitation, the delivery of legal opinions
with respect to such Committed Class B Purchaser, the agreement
of such Committed Class B Purchaser to become a Support Bank for
one or more Structured Purchasers having a support commitment
corresponding to its Commitment hereunder and approvals from the
Rating Agency) shall have been satisfied. The Transferor may
also increase the aggregate Commitments of the Committed Class B
Purchasers from time to time by adding additional Committed Class
B Purchasers in accordance with subsection 2.2(d).
(d) Subject to the provisions of subsections 8.1(a)
and 8.1(b) applicable to initial purchasers of Class B
Certificates, a Person having short-term credit ratings of not
lower than P-1 from Moody's and A-1 from Standard & Poor's may
from time to time with the consent of the Agent and the
Transferor become a party to this Agreement as an initial or an
additional Noncommitted Class B Purchaser or an initial or an
additional Committed Class B Purchaser by (i) delivering to the
Transferor an Investment Letter and (ii) entering into an
agreement substantially in the form attached hereto as Exhibit B
hereto (a "Joinder Supplement"), with the Agent and the
Transferor, acknowledged by the Servicer, which shall specify (A)
the name and address of such Person for purposes of Section 9.2
hereof, (B) whether such Person will be a Noncommitted Class B
Purchaser or Committed Class B Purchaser and, if such Person will
be a Committed Class B Purchaser, its Commitment, and (C) the
other information provided for in such form of Joinder
Supplement. Upon its receipt of a duly executed Joinder
Supplement, the Agent shall on the effective date determined
pursuant thereto give notice of such effectiveness to the
Transferor, the Servicer and the Trustee, and the Servicer will
provide notice thereof to each Rating Agency (if required). If,
at the time the effectiveness of the Joinder Supplement for an
additional Committed Class B Purchaser, the other Committed Class
B Purchasers are Class B Owners, it shall be a condition to such
effectiveness that such additional Committed Class B Purchaser
purchase from each other Class B Purchaser an interest in the
Class B Certificates in an amount equal to (i) such other Class B
Purchaser's Percentage Interest of the Class B Investor Principal
Balance, times (ii) a fraction, the numerator of which equals the
Commitment of such additional Class B Purchaser, and the
denominator of which equals the aggregate Commitments of the
Class B Purchasers (determined after giving effect to the
additional Commitment of the additional Class B Purchaser as set
forth in such Joinder Supplement), for a purchase price equal to
the portion of the Class B Investor Principal Balance purchased.
2.3 Fees, Expenses, Payments, Etc. (a) Subject to
the provisions of subsection 9.12(a) hereof, the Transferor
agrees to pay to the Agent for the account of the Class B
Purchasers the fees set forth in the Class B Fee Letter at the
times specified therein.
(b) Subject to the provisions of subsection 9.12(a)
hereof in the case of the Transferor, the Transferor and FDSNB,
jointly and severally, shall be obligated to pay on demand to (i)
the Agent and the initial Class B Purchasers all reasonable costs
and expenses in connection with the preparation, execution,
delivery and administration (including any requested amendments,
waivers or consents of any of the Related Documents) of this
Agreement, and the other documents to be delivered hereunder or
in connection herewith, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the
Agent and each of the initial Class B Purchasers with respect
thereto and (ii) the Agent and each Class B Purchaser, all
reasonable costs and expenses, if any, in connection with the
enforcement of any of the Related Documents, and the other
documents delivered thereunder or in connection therewith.
(c) Subject to the provisions of subsection 9.12(a)
hereof in the case of the Transferor, the Transferor and FDSNB,
jointly and severally, shall be obligated to pay on demand any
and all stamp and other taxes (other than Taxes covered by
Section 2.5) and fees payable in connection with the execution,
delivery, filing and recording of this Agreement, the Class B
Certificates, any of the other Related Documents or the other
documents and agreements to be delivered hereunder and
thereunder, and agree to save each Class B Purchaser and the
Agent harmless from and against any liabilities with respect to
or resulting from any delay by the Transferor or FDSNB in paying
or omission to pay such taxes and fees.
(d) Yield calculated by reference to the Adjusted
Eurodollar Rate shall be calculated on the basis of a 360-day
year for the actual days elapsed. Any Yield or interest accruing
at the Agent Base Rate shall be calculated on the basis of a 365-
or 366-day year, as applicable, for the actual days elapsed.
Fees or other periodic amounts payable hereunder shall be
calculated, unless otherwise specified in the Class B Fee Letter,
on the basis of a 360-day year and for the actual days elapsed.
(e) Each determination of Yield by the Agent pursuant
to any provision of this Agreement shall be conclusive and
binding on the Class B Purchasers, the Transferor, the Servicer
and the Trustee in the absence of manifest error.
(f) All payments to be made hereunder, whether on
account of principal, interest, fees or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 2:30
p.m., Pittsburgh, Pennsylvania time, on the due date thereof to
the Agent's account specified in subsection 9.2(b) hereof, in
United States dollars and in immediately available funds.
Notwithstanding anything herein to the contrary, if any payment
due hereunder becomes due and payable on a day other than a
Business Day, the payment date thereof shall be extended to the
next succeeding Business Day and interest shall accrue thereon at
the applicable rate during such extension. To the extent that
(i) the Trustee, FDSNB, the Transferor or the Servicer makes a
payment to the Agent or a Class B Purchaser or (ii) the Agent or
a Class B Purchaser receives or is deemed to have received any
payment or proceeds for application to an obligation, which
payment or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other
party under any bankruptcy or insolvency law, state or Federal
law, common law, or for equitable cause, then, to the extent such
payment or proceeds are set aside, the obligation or part thereof
intended to be satisfied shall be revived and continue in full
force and effect, as if such payment or proceeds had not been
received or deemed received by the Agent or the Class B
Purchaser, as the case may be.
(g) If on any Distribution Date the amount on deposit
in the Interest Funding Account is less than the amount of Class
B Interest and Class A Interest payable with respect to the Class
B Certificates and Class A Certificates on such Distribution
Date, an additional amount equal to the product of (i) such
interest shortfall (or portion thereof which has not been paid to
the Class B Certificateholder), times (ii) (A) a fraction, the
numerator of which is the actual number of days in the period
from and including the preceding Distribution Date to but
excluding such Distribution Date and the denominator of which is
360, times (B) the applicable rate of interest on each day, shall
be payable as provided in the Supplement with respect to the
Class B Certificates, on each Distribution Date following such
Distribution Date to and including the Distribution Date on which
such interest shortfall is paid to the Class B Certificateholder
(any such amount being referred to herein as an "Additional
Interest Amount"). Notwithstanding anything to the contrary
herein, any Additional Interest Amount shall only be payable or
distributed to the Class B Certificateholder to the extent
permitted by applicable law.
(h) Subject to the terms and conditions of this
Agreement and the Supplement (including, without limitation,
Section 4.6(f) thereof), the Transferor may decrease the Class B
Investor Principal Balance in whole or in part on any Business
Day by giving the Class B Agent prior written notice of such
decrease no later than 4:00 p.m. (Pittsburgh, Pennsylvania time)
on (i) in the case of a decrease in the Class B Investor
Principal Balance of $10,000,000 or less, the Business Day
immediately preceding the Business Day on which such decrease
shall occur, (ii) in the case of a decrease in the Class B
Investor Principal Balance of more than $10,000,000 but less than
$30,000,000, the third Business Day immediately preceding the
Business Day on which such decrease shall occur, and (iii) in the
case of a decrease in the Class B Investor Principal Balance of
$30,000,000 or more, the fifth Business Day immediately preceding
the Business Day on which such decrease shall occur; provided,
however, that each such decrease in the Class B Investor
Principal Balance shall be in a minimum amount of $500,000 and
integral multiples of $100,000 in excess thereof.
2.4 Requirements of Law. (a) In the event that any
Affected Party shall have reasonably determined that any
Regulatory Change shall:
(i) subject such Affected Party to any tax of any
kind whatsoever with respect to this Agreement, its
Commitment or its beneficial interest in the Class B
Certificates, or change the basis of taxation of payments in
respect thereof (except for Taxes covered by Section 2.5 and
taxes included in the definition of Excluded Taxes in
subsection 2.5(a) and changes in the rate of tax on the
overall net income of such Affected Party);
(ii) impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or
for the account of, advances, loans or other extensions of
credit by, or any other acquisition of funds by, such
Affected Party; or
(iii) impose on such Affected Party any other
condition.
and the result of any of the foregoing is to increase the cost to
such Affected Party, by an amount which such Affected Party, in
its reasonable judgment, deems to be material, of maintaining its
Commitment or its beneficial interest in the Class B Certificates
or to reduce any amount receivable in respect thereof, then, in
any such case, after submission by such Affected Party to the
Agent of a written request therefor and the submission by the
Agent to the Transferor, the Trustee and the Servicer of such
written request therefor, (subject to subsection 9.12(a) hereof)
the Transferor shall pay to the Agent for the account of such
Affected Party any additional amounts necessary to compensate
such Affected Party for such increased cost or reduced amount
receivable, together with interest on each such amount from the
day which is ten Business Days after the date such request for
compensation under this subsection 2.4(a) is received by the
Transferor until payment in full thereof (after as well as before
judgment) at the Agent Base Rate in effect from time to time.
(b) In the event that any Affected Party shall have
reasonably determined that any Regulatory Change regarding
capital adequacy has the effect of reducing the rate of return on
such Affected Party's capital or on the capital of any
corporation controlling such Affected Party as a consequence of
its obligations hereunder or its maintenance of its Commitment or
its beneficial interest in the Class B Certificates to a level
below that which such Affected Party or such corporation could
have achieved but for such Regulatory Change (taking into
consideration such Affected Party's or such corporation's
policies with respect to capital adequacy) by an amount
reasonably deemed by such Affected Party to be material, then,
from time to time, after submission by such Affected Party to the
Agent of a written request therefor and submission by the Agent
to the Transferor and the Servicer of such written request
therefor, (subject to subsection 9.12(a) hereof) the Transferor
shall pay to the Agent for the account of such Affected Party
such additional amount or amounts as will compensate such
Affected Party for such reduction, together with interest on each
such amount from the day which is ten Business Days after the
date such request for compensation under this subsection 2.4(b)
is received by the Transferor until payment in full thereof
(after as well as before judgment) at the Agent Base Rate in
effect from time to time.
(c) Each Affected Party agrees that it shall use its
reasonable efforts to reduce or eliminate any claim for
compensation pursuant to subsections 2.4(a) and 2.4(b), including
but not limited to designating a different Investing Office for
its Class B Certificates (or any interest therein) if such
designation will avoid the need for, or reduce the amount of, any
increased amounts referred to in subsection 2.4(a) or 2.4(b) and
will not, in the reasonable opinion of such Affected Party, be
disadvantageous to such Affected Party or inconsistent with its
policies or result in an unreimbursed cost or expense to such
Affected Party or in an increase in the aggregate amount payable
under both subsections 2.4(a) and 2.4(b). If any increased
amounts referred to in subsection 2.4(a) or 2.4(b) shall not be
eliminated or reduced by the designation of a different Investing
Office and payment thereof hereunder shall not be waived by such
Affected Party, the Transferor shall have the right to replace
such Affected Party hereunder with a new purchaser reasonably
acceptable to the Agent ("Replacement Purchaser") that shall
succeed to the rights of such Affected Party under this Agreement
and such Affected Party shall assign its beneficial interest in
the Class B Certificates to such Replacement Purchaser in
accordance with the provisions of Section 8.1, provided, that (i)
such Affected Party shall not be replaced here under with a new
investor until such Affected Party has been paid in full its
Percentage Interest of the Class B Investor Principal Balance and
all accrued and unpaid Yield (including any Liquidation Fee
determined for the replacement date) thereon by such new investor
and all other amounts (including all amounts owing under this
Section 2.4) owed to it pursuant to this Agreement and (ii) if
the Affected Party to be replaced is the Agent, the
Administrative Agent or any Support Bank or, unless the Agent and
the Administrative Agent otherwise agree, a Structured Purchaser
sponsored or administered by the Administrative Agent or the
Agent (in its individual capacity), a replacement Agent or
Administrative Agent, as the case may be, shall have been
appointed in accordance with Section 7.9 and the Agent or
Administrative Agent, as the case may be, to be replaced shall
have been paid all amounts owing to it as Agent or Administrative
Agent, as the case may be, pursuant to this Agreement; provided,
further, that the Transferor shall pro vide such Affected Party
with an Officer's Certificate stating that such new investor is
not subject to, or has agreed not to seek, such increased amount.
(d) Each Affected Party claiming increased amounts
described in subsection 2.4(a) or 2.4(b) will furnish to the
Agent (together with its request for compensation) a certificate
setting forth any actions taken by such Affected Party to reduce
or eliminate such increased amounts pursuant to subsection 2.4(c)
and the basis and the calculation of the amount (in reasonable
detail) of each request by such Affected Party for any such
increased amounts referred to in subsection 2.4(a) or 2.4(b),
such certificate to be conclusive as to the factual information
set forth therein absent manifest error.
2.5 Taxes. (a) All payments made to the Class B
Purchasers or the Agent under this Agreement and the Pooling and
Servicing Agreement (including all amounts payable with respect
to the Class B Certificates) shall, to the extent allowed by law,
be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority (collectively,
"Taxes"), excluding (i) income taxes (including, without
limitation, branch profit taxes, minimum taxes and taxes computed
under alternative methods, at least one of which is based on or
measured by net income), franchise taxes (imposed in lieu of
income taxes), or any other taxes based on or measured by the net
income of the Class B Purchaser or the gross receipts or income
of the Class B Purchaser; (ii) any Taxes that would not have been
imposed but for the failure of such Class B Purchaser or the
Agent, as applicable, to provide and keep current (to the extent
legally able) any certification or other documentation required
to qualify for an exemption from, or reduced rate of, any such
Taxes or required by this Agreement to be furnished by such Class
B Purchaser or the Agent, as applicable; (iii) any Taxes imposed
as a result of a change by any Class B Purchaser of the Investing
Office (other than changes mandated by this Agreement, including
subsection 2.4(c) hereof, or required by law); and (iv) any Taxes
imposed as a result of the Transfer by any Class B Purchaser of
its interest hereunder other than in accordance with Section 8.1
(all such excluded taxes being hereinafter called "Excluded
Taxes"). If any Taxes, other than Excluded Taxes, are required
to be withheld from any amounts payable to a Class B Purchaser or
the Agent hereunder or under the Pooling and Servicing Agreement,
then after sub mission by any Class B Purchaser to the Agent (in
the case of an amount payable to a Class B Purchaser) and by the
Agent to the Transferor and the Servicer of a written request
therefor, the amounts so payable to such Class B Purchaser or the
Agent, as applicable, shall be increased and the Transferor shall
be liable to pay to the Agent for the account of such Class B
Purchaser or for its own account, as applicable, the amount of
such increase) to the extent necessary to yield to such Class B
Purchaser or the Agent, as applicable (after payment of all such
Taxes) interest or any such other amounts payable hereunder or
thereunder at the rates or in the amounts specified in this
Agreement and the Pooling and Servicing Agreement; provided,
however, that the amounts so payable to such Class B Purchaser or
the Agent shall not be increased pursuant to this subsection
2.5(a) if such requirement to withhold results from the failure
of such Person to comply with subsection 2.5(c) hereof. Whenever
any Taxes are payable on or with respect to amounts distributed
to a Class B Purchaser or the Agent, as promptly as possible
thereafter the Servicer shall send to the Agent, on behalf of
such Class B Purchaser (if applicable), a certified copy of an
original official receipt showing payment thereof. If the
Trustee, upon the direction of the Servicer, fails to pay any
Taxes when due to the appropriate taxing authority or fails to
remit to the Agent, on behalf of such Class B Purchaser (if
applicable), the required receipts or other required documentary
evidence, subject to subsection 9.12(a), the Transferor shall pay
to the Agent on behalf of such Class B Purchaser or for its own
account, as applicable, any incremental taxes, interest or
penalties that may become payable by such Class B Purchaser or
the Agent, as applicable, as a result of any such failure. If
any increased amounts payable under this subsection 2.5(a) shall
not be waived by the applicable Class B Purchaser, the Transferor
shall have the right to replace the Class B Purchaser hereunder
with a Replacement Purchaser that will succeed to the rights of
such Class B Purchaser under this Agreement; provided, that (i)
such Class B Purchaser shall not be replaced hereunder with a new
investor until such Class B Purchaser has been paid in full its
Percentage Interest of the Class B Investor Principal Balance and
all accrued and unpaid Yield (including any Liquidation Fee
determined for the replacement date) thereon and all other
amounts (including all amounts owing under this Section 2.5) owed
to it pursuant to this Agreement and (ii) if the Class B
Purchaser to be replaced is the Agent or Administrative Agent,
or, unless the Agent and the Administrative Agent otherwise
agree, a Structured Purchaser sponsored or administered by the
Administrative Agent or the Agent (in its individual capacity), a
replacement Agent or Administrative Agent, as the case may be,
shall have been appointed in accordance with Section 7.9 and the
Agent or Administrative Agent, as the case may be, to be replaced
shall have been paid all amounts owing to it as Agent or
Administrative Agent, as the case may be, pursuant to this
Agreement; provided, further, that the Transferor shall provide
such Class B Purchaser with an Officer's Certificate stating that
such new investor is not subject to such Taxes or that such new
investor is subject to a lesser amount of Taxes than the Class B
Purchaser.
(b) A Class B Purchaser claiming increased amounts
under subsection 2.5(a) for Taxes paid or payable by such Class B
Purchaser (or the Agent for its own account) will furnish to the
Agent who will furnish to the Transferor and the Servicer a
certificate, setting forth the basis and amount of each request
by such Class B Purchaser for such Taxes, such certificate to be
conclusive as to the factual information set forth therein absent
manifest error. All such amounts shall be due and payable to the
Agent on behalf of such Class B Purchaser or for its own account,
as the case may be, on the succeeding Distribution Date following
receipt by the Transferor of such certificate at least 10 days
prior to such Distribution Date, in each case if then incurred by
such Class B Purchaser and otherwise shall be due and payable on
the following Distribution Date (or, if earlier, on the Series
1999-1 Termination Date).
(c) Each Class B Purchaser and each Participant
holding an interest in Class B Certificates agrees that prior to
the date on which the first interest payment hereunder is due
thereto, it will deliver to the Servicer and the Trustee, if such
Class B Purchaser or Participant is not incorporated under the
laws of the United States or any State thereof (i) two duly
completed copies of the U.S. Internal Revenue Service Form 4224
or successor applicable forms required to evidence that the Class
B Purchaser's or Participant's income from this Agreement or the
Class B Certificates is "effectively connected" with the conduct
of a trade or business in the United States as the case may be
and (ii) a U.S. Internal Revenue Service Form W-8 or W-9 or
successor applicable or required forms. Each Class B Purchaser
or Participant holding an interest in Class B Certificates also
agrees to deliver to the Servicer and the Trustee two further
copies of said Form 4224 and Form W-8 or W-9, or such successor
applicable forms or other manner of certification, as the case
may be, on or before the date that any such form expires or
becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the
Servicer and the Trustee, and such extensions or renewals thereof
as may reasonably be requested by the Servicer, unless in any
such case, solely as a result of a change in treaty, law or
regulation occurring prior to the date on which any such delivery
would otherwise be required, and assuming that Section 1446 of
the Code does not apply, the Class B Purchaser is no longer
eligible to deliver the then-applicable form set forth above.
Each Class B Purchaser certifies, represents and warrants and
each Participant acquiring an interest in a Class B Certificate
or Class B Purchaser which is an Assignee shall certify,
represent and warrant as a condition of acquiring its
Participation or beneficial interest in the Class B Certificates
(x) that its income from this Agreement or the Class B
Certificates is effectively connected with a United States trade
or business and (y) that it is entitled to an exemption from
United States backup withholding tax. Further, each Class B
Purchaser covenants and each Participant acquiring an interest in
a Class B Certificate that for so long as it shall hold such
Participation or Class B Certificates it shall be held in such
manner that the income therefrom shall be effectively connected
with the conduct of a United States trade or business. The
Servicer and the Trustee shall be entitled to withhold or cause
such withholding, and additional amounts in respect of Taxes need
not be paid to a Class B Purchaser or Participant in the event of
a breach of the certifications, representations, warranties or
covenants set forth in this subsection 2.5(c) by such Class B
Purchaser or Participant.
(d) In the event that any Class B Purchaser or
Participant holding an interest in Class B Certificates shall
breach the certifications, representations, warranties or
covenants set forth in this Section 2.5, the Transferor shall
have the right to replace such Class B Purchaser or such
Participant's lead Class B Purchaser hereunder with a Replacement
Purchaser that shall succeed to the rights of such Class B
Purchaser under this Agreement and, subject to compliance with
the provisos to the last sentence of subsection 2.5(a), such
Class B Purchaser shall assign its interest in this Agent and any
Class B Certificates owned by it to such Replacement Purchaser in
accordance with the provisions of Section 8.1.
2.6 Non-recourse. (a) Except to the extent provided
in this Section 2.6, the obligation to repay the Class B
Repayment Amount shall be without recourse to the Transferor, the
Servicer (or any Person acting on behalf of any of them), the
Holder of the Exchangeable Transferor Certificate, the Trust
(except to the extent specifically provided for herein or in the
Pooling and Servicing Agreement), the Trustee, the
Certificateholders or any Affiliate of any of them, and shall be
limited solely to amounts payable to the Series 1999-1
Certificateholders under the Pooling and Servicing Agreement. To
the extent that such amounts are insufficient to pay the Class B
Repayment Amount, the obligation to pay the Class B Repayment
Amount shall not constitute a claim against the Transferor, the
Servicer (or any Person acting on behalf of any of them), the
Holder of the Exchangeable Transferor Certificate, the Trust
(except to the extent specifically provided for herein or in the
Pooling and Servicing Agreement), the Trustee, the
Certificateholders or any Affiliate of any of them.
Notwithstanding anything to the contrary contained herein, if the
Transferor or the Servicer shall fail to make any payment,
deposit or transfer relating to the Series 1999-1 Certificates
required to be made pursuant to the Pooling and Servicing
Agreement and, as a result of such failure, the amount available
to be applied to the Class B Certificates pursuant to the Pooling
and Servicing Agreement is reduced to an amount which is less
than the amount which otherwise would have been available had
such payment, deposit or transfer been made (the amount of any
such reduction hereinafter referred to as a "Re duction Amount"),
the Transferor or the Servicer, as the case may be, shall repay
the Class B Investor Principal Balance, together with interest
due thereon in accordance with the Pooling and Servicing
Agreement, to the extent of (i) such Reduction Amount and (ii)
interest on the portion of the Class B Investor Charge-Offs, if
any, which results from the existence of any Reduction Amount at
the Agent Base Rate plus 2.00% per annum.
(b) Subject to and without limiting the foregoing
provisions of this Section 2.6, the obligations of the Transferor
and the Servicer under this Agreement shall be absolute,
unconditional and irrevocable and shall be performed strictly in
accordance with the terms of this Agreement, irrespective of any
of the following circumstances:
(i) any lack of validity or enforceability of this
Agreement, the Pooling and Servicing Agreement, the Series
1999-1 Certificates or the Supplement;
(ii) any amendment to or waiver of, or consent to
or departure from, this Agreement, the Series 1999-1
Certificates, the Pooling and Servicing Agreement or the
Supplement, unless agreed to by the Required Class B Owners
and the Required Class B Purchasers or all the Class B
Owners and the Required Class B Purchasers if required
hereunder;
(iii) the existence of any claim, setoff, defense
or other right which the Transferor, the Servicer or the
Trustee may have at any time against each other, the Agent,
the Administrative Agent or any Class B Purchaser, as the
case may be, or any other Person, whether in connection with
this Agreement, the Class B Certificates, the Pooling and
Servicing Agreement or any unrelated transactions;
(iv) the bankruptcy or insolvency of the Trust or
with respect to any party jointly and severally liable with
another party hereto, of such other party; or
(v) any other circumstances or happening
whatsoever, whether or not similar to any of the foregoing;
provided, that, with respect to obligations owing to any
Class B Purchaser, the same shall not have constituted gross
negligence or willful misconduct of such Class B Purchaser.
2.7 Indemnification. () Subject to subsection
9.12(a) hereof in the case of the Transferor, the Transferor and
FDSNB, jointly and severally, agree to indemnify and hold
harmless the Agent, the Administrative Agent, each Support Bank
and each Class B Purchaser and any directors, officers,
employees, attorneys, auditors or accountants of such Agent, the
Administrative Agent, Support Bank or Class B Purchaser (each
such person being referred to as an "Indemnitee") from and
against any and all claims, damages, losses, liabilities, costs
or ex penses whatsoever which such Indemnitee may incur (or which
may be claimed against such Indemnitee) by reason of or in
connection with the execution and delivery of, or payment under,
this Agreement, the Pooling and Servicing Agreement, the Series
1999-1 Certificates, except (i) to the extent that any such
claim, damage, loss, liability, cost or expense shall be caused
by the willful misconduct or gross negligence of such Indemnitee,
(ii) to the extent that any such claim, damage, loss, liability,
cost or expense relates to any Excluded Taxes, (iii) to the
extent that any such claim, damage, loss, liability, cost or
expense relates to disclosure made by the Agent or a Class B
Purchaser in connection with an Assignment or Participation
pursuant to Section 8.1 of this Agreement which disclosure is not
based on information given to the Agent by or on behalf of the
Transferor, the Servicer or the Trustee or (iv) to the extent
that such claim, damage, loss, liability, cost or expense shall
be caused by a charge off of Receivables. The foregoing
indemnity shall include any claims, damages, losses, liabilities,
costs or expenses to which any such Indemnitee may become subject
under the Securities Act of 1933, as amended (the "Act"), the
Securities Exchange Act of 1934, as amended, the Investment
Company Act of 1940, as amended, or other federal or state law or
regulation arising out of or based upon any untrue statement or
alleged untrue statement of a material fact in any disclosure
document relating to the Class B Certificates or the Class A
Certificates, or any amendments thereof or supplements thereto or
arising out of, or based upon, the omission or the alleged
omission to state a material fact necessary to make the
statements therein or any amendment thereof or supplement
thereto, in light of the circumstances in which they were made,
not misleading.
(b) Promptly after the receipt by an Indemnitee of a
notice of the commencement of any action against an Indemnitee,
such Indemnitee will notify the Agent and the Agent will, if a
claim in respect thereof is to be made against the Transferor
pursuant to subsection 2.7(a) (the "Indemnifying Party"), notify
the Indemnifying Party in writing of the commencement there of;
but the omission so to notify such party will not relieve such
party from any liability which it may have to such Indemnitee
pursuant to subsection 2.7(a). Upon receipt of such notice, the
Indemnifying Party shall assume the defense of such action or
proceeding, including the employment of counsel satisfactory to
the Indemnitee in its reasonable judgment and the payment of all
related expenses. Each Indemnitee shall have the right to employ
separate counsel in any such action or proceeding and to
participate in (but not control) the defense thereof, but the
fees and expenses of such counsel shall be at its own expense
unless (a) the Indemnifying Party shall have failed to assume or
continue to defend such action or proceeding, (b) the named
parties to any such action or proceeding (including any impleaded
parties) include both such Indemnitee and either the Transferor
or another person or entity that may be entitled to
indemnification from the Transferor (by virtue of this Agreement
or otherwise) and such Indemnitee shall have been advised by
counsel that there may be one or more legal defenses available to
such Indemnitee which are different from or additional to those
available to the Transferor or such other party or shall
otherwise have reasonably determined that the co-representation
would present such counsel with a conflict of interest, or (c)
the Indemnifying Party and the Indemnitee shall have mutually
agreed to the retention of separate counsel. Anything contained
in this Agreement to the contrary notwithstanding, the
Indemnifying Party (i) shall not be entitled to assume the
defense of any part of a Third Party Claim that specifically
seeks an order, injunction or other equitable relief or relief
for other than money damages against the Indemnitee, and (ii)
shall not (and shall not permit any counsel employed pursuant to
this Section 2.7) to enter into any settlement, or agree to the
terms of any settlement, without the prior written consent of
each Indemnitee that would be affected thereby.
2.8 Termination Events. In the event that any one or
more of the following (each, a "Termination Event") shall have
occurred:
(a) the failure of the Transferor, the Servicer or
the Trustee to make a deposit, payment or withdrawal
required hereunder or under any Related Document (determined
without regard to the failure of the Servicer to deliver any
statement or certificate required hereunder or under the
Supplement in order for such deposit, payment or withdrawal
to be made) when and as required and such failure continues
for five Business Days; provided that the failure of the
Transferor to make additional payments pursuant to
subsection 2.4(a) or 2.4(b) or Section 2.5 hereof shall not
constitute a Termination Event unless such failure continues
after the last Business Day of the Monthly Period which
follows the Monthly Period in which the Transferor received
a request for such payment pursuant to such subsection;
(b) any representation or warranty made herein or
in connection with this Agreement by the Transferor, the
Servicer or the Trustee shall prove to have been incorrect
in any material respect when made, and continues to be
incorrect in any material respect for a period of sixty (60)
days after receipt of written notice thereof, requiring the
same to be remedied, by the Transferors and the Servicer
from the Agent and as a result the interests of the Class B
Purchasers or any other them are and continue to be
materially and adversely affected;
(c) the failure by the Transferor or the Servicer
or, if such failure is reasonably expected to have a
material adverse effect on the Class B Investors, by the
Trustee, to duly observe or perform any term or provision of
this Agreement (except as described in clause (a) above)
which is not cured within 60 days after written notice of
such failure is given to the defaulting party by the Agent;
(d) the occurrence (whether occurring before or
after the commencement of an Amortization Period) of a Trust
Pay Out Event, a Series 1999-1 Pay Out Event or a Servicer
Default, or the occurrence of an event or condition which
would be a Trust Pay Out Event, a Series 1999-1 Pay Out
Event or a Servicer Default but for a waiver of or failure
to declare or determine such event by the Certificateholders
or the Trustee;
(e) the Commitment Expiration Date; or
(f) Market Street Funding Corporation shall not
have become a Class B Purchaser hereunder by the ninetieth
calendar day after the Closing Date;
then, in the event of a Termination Event described in any of
clauses (a) through (d) above, in addition to any other rights or
remedies of the Class B Purchasers hereunder or under any Related
Documents, (A) the Administrative Agent, at the direction of the
Required Class B Owners and of the Required Class B Purchasers
(and without regard to whether a similar direction shall have
been given pursuant to the Class A Certificate Purchase
Agreement) in their discretion, shall deliver a Reserve Account
Increase Notice to the Servicer as contemplated by the
Supplement, and/or (B) the Administrative Agent, at the direction
of the Required Class B Owners and of the Required Class B
Purchasers (and without regard to whether a similar direction
shall have been given pursuant to the Class A Certificate
Purchase Agreement) in their discretion, shall deliver a notice
to the Trustee and the Servicer that such Termination Event has
occurred and directing that such Termination Event constitute a
Series 1999-1 Pay Out Event under subsection 10(g) of the
Supplement. In the event that a Termination Event described in
clause (e) above shall have occurred, the Agent shall give notice
thereof to the Administrative Agent, which shall, without further
direction, deliver prompt notice to the Trustee and the Servicer
that such Termination Event has occurred and directing that such
Termination Event constitute a Series 1999-1 Pay Out Event under
subsection 10(g) of the Supplement.
2.9 Certain Agreements of the Agent. If on the
thirtieth day after the Closing Date and/or the sixtieth day
after the Closing Date (or, in either case, if such day is not a
Business Day, the immediately succeeding Business Day) Market
Street Funding Corporation has failed to become a Class B
Purchaser hereunder, the Agent hereby agrees to notify the
Transferor on such thirtieth and/or sixtieth day of the basis for
such failure and any actions that are required to be taken by the
Transferor, Servicer or any of their affiliates or agents in
order for Market Street Funding Corporation to become a Class B
Purchaser hereunder.
SECTION 3. CONDITIONS PRECEDENT
3.1 Condition to Initial Purchase. As a condition
precedent to the initial purchase by any Class B Purchasers of
the Class B Certificates, (i) the Agent on behalf of the Class B
Purchasers shall have received on the Closing Date the following
items, each of which shall be in form and substance satisfactory
to the Agent:
(a) the favorable written opinion of counsel for
each of Prime II Receivables Corporation and FDSNB addressed to
the Agent and the Class B Purchasers and dated the Closing Date,
covering general corporate matters and the due execution and
delivery of, and the enforceability of, each of the Related
Documents to which it is party and such other matters as the
Agent may request;
(b) a copy of (i) the corporate charter and by-laws
of, and an incumbency certificate with respect to its officers
executing any of the Related Documents on the Closing Date on
behalf of, each of Prime II Receivables Corporation and FDSNB,
certified by an authorized officer of each such entity, (ii) good
standing certificates from the appropriate Governmental Authority
as of a recent date with respect to each of Prime II Receivables
Corporation and FDSNB and (iii) resolutions of the Board of
Director (or an authorized committee thereof) of each of Prime II
Receivables Corporation and FDSNB with respect to the Related
Documents to which it is party, certified by an authorized
officer of each such entity;
(c) the representations and warranties of the
Transferor set forth or referred to in Section 4.1 hereof and the
representations and warranties of FDSNB set forth or referred to
in Section 4.2 hereof shall be true and correct in all material
respects on Closing Date as though made on and as of the Closing
Date, and the Agent shall have received an Officer's Certificate
of the Transferor and of FDSNB, respectively, confirming the
satisfaction of the condition set forth in this clause (c);
(d) customary sale/security interest, tax,
bankruptcy and non-consolidation opinions, addressed to the Agent
and the Class B Purchasers;
(e) an agreed procedures letter from the
independent certified public accountants of FDSNB and a
certificate of an authorized officer of FDSNB with respect to the
accuracy of data previously furnished to the Agent with respect
to the Receivables in the Trust, in each case in form and scope
satisfactory to the Agent;
(f) an executed copy of the Master Pooling and
Servicing Agreement, the Receivables Purchase Agreement and the
Supplement;
(g) evidence satisfactory to the Agent that the
Class C Certificates having a Class C Initial Invested Amount at
least equal to the Required Class C Invested Amount;
(h) evidence satisfactory to the Agent that the
initial deposit (if any) in the Reserve Account required by
Section 4.9(a) of the Pooling and Servicing Agreement shall have
been made;
(i) evidence satisfactory to the Agent of the due
execution and delivery of the Related Documents to which it is
party by the Trustee; and
(j) all up front fees and expenses agreed and
specified in the Class B Fee Letter shall have been paid by the
Transferor on the Closing Date; and
(ii) all representations and warranties of the Transferor and
the Servicer contained herein shall be true and correct in all
material respects on the Closing Date (and after giving effect to
the transactions contemplated hereby) and no event which of
itself or with the giving of notice or lapse of time, or both,
would permit the furnishing of a Reserve Account Increase Notice
has occurred and is continuing and the Agent shall have received
an Officer's Certificate of each of the Transferor and the
Servicer to such effect.
3.2 Condition to Additional Purchases. The following
shall be conditions precedent to each purchase by any Class B
Purchasers of VFC Additional Class B Invested Amounts hereunder:
(a) the Transferor shall have timely delivered a
Purchase Request pursuant to subsection 2.1(c) of this
Agreement;
(b) no Termination Event shall have occurred;
(c) after giving effect to such purchase of VFC
Additional Class B Invested Amount, the aggregate Class B
Investor Principal Balance shall not exceed the aggregate
Commitments of the Committed Class B Purchasers minus the
aggregate Commitments of all Defaulting Purchasers;
(d) the conditions set forth in Section 6.15 of the
Pooling and Servicing Agreement to the issuance of such VFC
Additional Class B Invested Amount shall have been
satisfied; and
(e) the representations and warranties of the
Transferor contained in Section 4.1 and of FDSNB contained
in Section 4.2 shall be true and correct in all material
respects on and as of the applicable Purchase Date, as
though made on and as of such date, other than the
representations and warranties of FDSNB contained in the
last sentence of subsection 4.2(f) or in subsection 4.2(h),
which shall have been true and correct in all material
respects when made and as of the Closing Date, and other
than the representations and warranties of the Transferor
and of FDSNB set forth in subsection 4.1(l) and subsection
4.2(g), respectively, which shall have been true and correct
on all material respects on or as of the respective dates
specified therein.
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of the Transferor.
The Transferor repeats and reaffirms to the Class B Purchasers
and the Agent the representations and warranties of the
Transferor set forth in Sections 2.3 and 2.4 of the Pooling and
Servicing Agreement and represents and warrants that such
representations and warranties are true and correct as of the
date hereof. The Transferor further represents and warrants to,
and agrees with, the Agent and each Class B Purchaser that, as of
the date hereof:
(a) The Transferor has been duly organized and is
validly existing and in good standing as a corporation under the
laws of the State of Delaware, with corporate power and authority
to own its properties and to transact the business in which it is
now engaged, and the Transferor is duly qualified to do business
and is in good standing in each State of the United States where
the nature of its business requires it to be so qualified.
(b) The Transferor has the full corporate power,
authority and legal right to make, execute, deliver and perform
the Related Documents to which it is party and all of the
transactions contemplated thereby and to issue the Series 1999-1
Certificates from the Trust and has taken all necessary corporate
action to authorize the execution, delivery and performance of
the Related Documents to which it is party and such issuance.
Each of the Related Documents to which it is party constitutes
the legal, valid and binding agreement of the Transferor
enforceable in accordance with its terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of the rights of creditors
generally and except as such enforceability may be limited by
general principles of equity, whether considered in a proceeding
at law or in equity).
(c) The Transferor is not required to obtain the
consent of any other party or any consent, license, approval or
authorization of, or registration with, any Governmental
Authority in connection with the execution, delivery or
performance of each of the Related Documents to which it is party
that has not been duly obtained and which is not and will not be
in full force and effect on the Closing Date.
(d) The execution, delivery and performance of the
Related Documents to which it is party by the Transferor do not
violate or conflict with any provision of any existing law or
regulation applicable to the Transferor or any order or decree of
any court to which the Transferor is subject or the Certificate
of Incorporation or Bylaws of the Transferor, or any mortgage,
security agreement, indenture, contract or other agreement to
which the Transferor is a party or by which the Transferor or any
significant portion of its properties is bound.
(e) There is no litigation, investigation or
administrative proceeding before any court, tribunal, regulatory
body or governmental body presently pending, or, to the knowledge
of the Transferor, threatened, with respect to any of the Related
Documents, the transactions contemplated thereby, or the issuance
of the Series 1999-1 Certificates and there is no such litigation
or proceeding against the Transferor or any significant portion
of its properties which would, individually or in the aggregate,
have a material adverse effect on the transactions contemplated
by any of the Related Documents or the ability of the Transferor
to perform its obligations thereunder.
(f) The Transferor is not insolvent or the subject
of any voluntary or involuntary bankruptcy proceedings.
(g) No Pay Out Event, Servicer Default, Termination
Event or event permitting the furnishing of a Reserve Account
Increase Notice has occurred and is continuing, and no event, act
or omission has occurred and is continuing which, with the lapse
of time, the giving of notice, or both, would constitute such an
event or default.
(h) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939,
as amended, and neither the Trust nor the Transferor is required
to be registered under the Investment Company Act of 1940, as
amended.
(i) The Receivables conveyed by the Transferor to
the Trust under the Pooling and Servicing Agreement are in an
aggregate amount, determined as of July 6, 1999, of
$456,983,326.18. The Receivables Purchase Agreement is in full
force and effect on the date hereof and no material default by
any party exists thereunder.
(j) The Trust is duly created and existing under
the laws of the State of New York. Simultaneous with the closing
hereunder, all conditions to the issuance and sale of the Series
1999-1 Certificates set forth in the Pooling and Servicing
Agreement have been satisfied and the Series 1999-1 Certificates
have been duly issued by the Trust.
(k) Neither the Transferor nor any of its
Affiliates has directly, or through any agent, (i) sold, offered
for sale, solicited offers to buy or otherwise negotiated in
respect of, any "security" (as defined in the Act) that is or
will be integrated with the sale of the any Series 1999-1
Certificates in a manner that would require the registration
under the Act of the offering of the Series 1999-1 Certificates
or (ii) engaged in any form of general solicitation or general
advertising in connection with the offering of the Series 1999-1
Certificates (as those terms are used in Regulation D under the
Act) or in any manner involving a public offering within the
meaning of Section 4(2) of the Act. Assuming the accuracy of the
representations and warranties of each Class B Purchaser in its
Investment Letter and of each purchaser of Class A Certificates
and Class C Certificate in their respective investment letters,
the offer and sale of the Series 1999-1 Certificates are
transactions which are exempt from the registration requirements
of the Act.
(l) All written factual information heretofore
furnished by the Transferor to, or for delivery to, the Agent for
purposes of or in connection with this Agreement, including,
without limitation, information relating to the Accounts and
Receivables and the Transferor's and FDSNB's credit card
businesses, was true and correct in all material respects on the
date as of which such information was stated or certified and
remains true and correct in all material respects (unless such
information specifically relates to an earlier date in which case
such information shall have been true and correct in all material
respects on such earlier date).
(m) The Transferor has reviewed the areas within its
business and operations which would reasonably be expected to be
materially adversely affected by, and have developed or are
developing a program to address on a timely basis, the Internal
"Year 2000 Problem" (that is, the risk that computer applications
used by the Transferor may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior
to and any date on or after December 31, 1999), and has made
related appropriate inquiry of material suppliers and vendors.
The "Year 2000 Problem" will not have a material adverse effect
on the interests of the Class B Purchasers or the Agent hereunder
or under the Pooling and Servicing Agreement.
4.2 Representations and Warranties of FDSNB. FDSNB
repeats and reaffirms to the Class B Purchasers and the Agent the
representations and warranties of the Servicer set forth in
Section 3.3 of the Pooling and Servicing Agreement and represents
and warrants that such representations and warranties are true
and correct as of the date hereof. FDSNB further represents and
warrants to, and agrees with, the Agent and each Class B
Purchaser that, as of the date hereof:
(a) FDSNB has been duly organized and is validly
existing and in good standing as a national banking association
under the laws of the United States of America, with corporate
power and authority to own its properties and to transact the
business in which it is now engaged, and FDSNB is duly qualified
to do business (or is exempt from such qualification) and is in
good standing in each State of the United States where the nature
of its business requires it to be so qualified. FDSNB is an
insured depository institution under Section 4(a) of the Federal
Deposit Insurance Act.
(b) FDSNB has the full corporate power, authority
and legal right to make, execute, deliver and perform the Related
Documents to which it is party and all the transactions
contemplated thereby and has taken all necessary corporate action
to authorize the execution, delivery and performance of the
Related Documents to which it is party. Each of the Related
Documents to which it is party constitutes the legal, valid and
binding agreement of FDSNB enforceable in accordance with its
terms (subject to applicable bankruptcy, insolvency, reorganiza
tion, moratorium or other similar laws affecting the enforcement
of the rights of creditors generally and the rights of creditors
of national banking associations and except as such
enforceability may be limited by general principles of equity,
whether considered in a proceeding at law or in equity).
(c) FDSNB is not required to obtain the consent of
any other party or any consent, license, approval or
authorization of, or registration with, any Governmental
Authority in connection with the execution, delivery or
performance of each of the Related Documents to which it is party
that has not been duly obtained and which is not and will not be
in full force and effect on the Closing Date.
(d) The execution, delivery and performance of each
of the Related Documents to which it is party by FDSNB do not
violate or conflict with any provision of any existing law or
regulation applicable to FDSNB or any order or decree of any
court to which FDSNB is subject or the Articles of Association or
Bylaws of FDSNB, or any mortgage, security agreement, indenture,
contract or other agreement to which FDSNB is a party or by which
FDSNB or any significant portion of FDSNB's properties is bound.
(e) There is no litigation, investigation or
administrative proceeding before any court, tribunal, regulatory
body or governmental body presently pending, or, to the knowledge
of FDSNB, threatened, with respect to the Related Documents, the
transactions contemplated thereby, or the issuance of the Series
1999-1 Certificates, and there is no such litigation or
proceeding against FDSNB or any significant portion of its
properties which would, individually or in the aggregate, have a
material adverse effect on the transactions contemplated by any
of the Related Documents or the ability of FDSNB, in its capacity
as Servicer or otherwise, to perform its obligations thereunder.
(f) FDSNB is not insolvent or the subject of any
insolvency or liquidation proceeding. The financial statements
of FDSNB delivered to the Agent are complete and correct in all
material respects and fairly present the financial condition of
FDSNB as of date of such statements and the results of operations
of FDSNB for the period then ended, all in accordance with
regulatory accounting principles consistently applied. Since the
date of the most recent audited financial statements of FDSNB
delivered to the Agent, there has not been any material adverse
change in the condition (financial or otherwise) of FDSNB.
(g) All written factual information heretofore
furnished by FDSNB to, or for delivery to, the Agent for purposes
of or in connection with this Agreement, including, without
limitation, information relating to the Accounts and Receivables
and the Transferor's and FDSNB's VISAr credit card businesses,
was true and correct in all material respects on the date as of
which such information was stated or certified and remains true
and correct in all material respects (unless such information
specifically relates to an earlier date in which case such
information shall have been true and correct in all material
respects on such earlier date).
(h) There are no outstanding comments from the most
recent report prepared by FDSNB's (in its capacity as Servicer)
independent public accountants in connection with its VISAr
credit card receivables.
(i) No Pay Out Event, Servicer Default, Termination
Event or event permitting the furnishing of a Reserve Account
Increase Notice has occurred and is continuing, and no event, act
or omission has occurred and is continuing which, with the lapse
of time, the giving of notice, or both, would constitute such an
event or default.
(j) FDSNB has reviewed the areas within its
business and operations which would reasonably be expected to be
materially adversely affected by, and have developed or are
developing a program to address on a timely basis, the internal
"Year 2000 Problem" (that is, the risk that computer applications
used by the FDSNB may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any
date on or after December 31, 1999), and has made related
appropriate inquiry of material suppliers and vendors. The "Year
2000 Problem" will not have a material adverse effect on the
interests of the Class B Purchasers or the Agent hereunder or
under the Pooling and Servicing Agreement.
4.3 Representations and Warranties of the Agent and
the Class B Purchasers. Each of the Agent and the Class B
Purchasers represents and warrants to, and agrees with, the
Transferor and the Servicer, that:
(a) It is duly authorized to enter into and perform
this Agreement and to purchase its Commitment Percentage (if any)
of the Class B Certificates, and has duly executed and delivered
this Agreement; and the person signing this Agreement on behalf
of such Class B Purchaser has been duly authorized by such Class
B Purchaser to do so.
(b) This Agreement constitutes the legal, valid and
binding obligation of such Class B Purchaser, enforceable in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, conservatorship or other similar laws now or
hereafter in effect affecting the enforcement of creditors'
rights in general, and except as such enforceability may be
limited by general principles of equity (whether considered in a
proceeding at law or in equity).
(c) No registration with or consent or approval of
or other action by any state or local governmental authority or
regulatory body having jurisdiction over such Class B Purchaser
is required in connection with the execution, delivery or
performance by such Class B Purchaser of this Agreement other
than as may be required under the blue sky laws of any state.
SECTION 5. COVENANTS
5.1 Covenants of the Transferor and FDSNB. Each of
the Transferor and FDSNB (individually or, as set forth below, as
the Servicer) covenants and agrees, so long as any amount of the
Class B Investor Principal Balance shall remain outstanding or
any monetary obligation arising hereunder shall remain unpaid,
unless the Required Class B Owners and the Required Class B
Purchasers shall otherwise consent in writing, that:
(a) each of the Transferor and the Servicer shall
perform in all material respects each of the respective
agreements, warranties and indemnities applicable to it and
comply in all material respects with each of the respective terms
and provisions applicable to it hereunder and under the other
Related Documents to which it is party, which agreements are
hereby incorporated by reference into this Agreement as if set
forth herein in full; and each of the Transferor and the Servicer
shall take all reasonable action to enforce the obligations of
each of the other parties to such Related Documents which are
contained therein;
(b) the Transferor and the Servicer shall furnish
to the Agent () a copy of each opinion, certificate, report,
statement, notice or other communication (other than investment
instructions) relating to the Series 1999-1 Certificates which is
furnished by or on behalf of either of them to
Certificateholders, to any Rating Agency or to the Trustee and
furnish to the Agent after receipt thereof, a copy of each
notice, demand or other communication relating to the Series 1999-
1 Certificates, this Agreement or the Pooling and Servicing
Agreement received by the Transferor or the Servicer from the
Trustee, any Rating Agency or 15% or more of the Series 1999-1
Certificateholders (to the extent such notice, demand or
communication relates to the Accounts, the Receivables, any
Servicer Default or any Pay Out Event); and (ii) such other
information, documents records or reports respecting the Trust,
the Receivables, the Transferor, FDSNB or the Servicer as the
Agent may from time to time reasonably request without
unreasonable expense to the Transferor or the Servicer;
(c) the Servicer shall furnish to the Agent on or
before the date such reports are due under the Pooling and
Servicing Agreement copies of each of the reports and
certificates required by subsection 3.4(b) and Sections 3.5 and
3.6 of the Pooling and Servicing Agreement;
(d) the Servicer shall promptly furnish to the
Agent a copy, addressed to the Agent, of each opinion of counsel
delivered to the Trustee pursuant to Section 13.2(d) of the
Pooling and Servicing Agreement;
(e) FDSNB shall furnish to the Agent (i) a copy of
its annual Call Report promptly after it becomes available, (ii)
an annual certificate dated within 90 days after the end each of
its fiscal years stating its compliance (or failure to comply)
with each minimum ratio of total capital and core capital to risk-
weighted assets required by Governmental Authorities in
accordance with the implementation of the Basle Accord;
(f) the Servicer shall furnish to the Agent a
certificate concurrently with its delivery of its annual
certificate pursuant to Section 3.5 of the Pooling and Servicing
Agreement stating that no Termination Event (other than a
Termination Event described in clause (e) of subsection 2.8) or
event or condition which with the passage of time or the giving
of notice, or both, would constitute such a Termination Event or,
if such Termination Event, event or condition has occurred,
identifying the same in reasonable detail;
(g) the Transferor shall not exercise its right to
accept optional reassignment of the Receivables or repurchase the
Series 1999-1 Certificates pursuant to Sections 10.2 or 12.2 of
the Pooling and Servicing Agreement or Section 3 of the
Supplement, unless the Class B Purchasers have been paid, or will
be paid upon such repurchase or in connection with such op tional
reassignment, the Class B Investor Principal Balance, all
interest thereon and all other amounts owing hereunder in full;
(h) the Transferor and the Servicer shall at any
time from time to time during regular business hours, on
reasonable notice to the Transferor or the Servicer, as the case
may be, permit the Agent, or its agents or representatives to:
(i) examine all books, records and documents
(including computer tapes and disks) in its possession or
under its control relating to the Receivables, and
(ii) visit its offices and property for the
purpose of examining such materials described in clause (i)
above.
The information obtained by the Agent or any Class B Purchaser
pursuant to this subsection shall be held in confidence in
accordance with Section 6.2 hereof;
(i) the Servicer shall furnish to the Agent,
promptly after the occurrence of any Servicer Default,
Termination Event, Pay Out Event or any event which would permit
the furnishing of a Reserve Account Increase Notice, a
certificate of an appropriate officer of the Servicer setting
forth the circumstances of such Servicer Default, Pay Out Event,
Termination Event or event and any action taken or proposed to be
taken by the Servicer or the Transferor with respect thereto;
(j) the Transferor and the Servicer shall timely
make all payments, deposits or transfers and give all
instructions to transfer required by this Agreement and the
Pooling and Servicing Agreement;
(k) the Transferor shall not terminate (except in
accordance with the terms thereof), amend, waive or otherwise
modify the Pooling and Servicing Agreement or the Supplement
unless (i) such amendment, waiver or modification shall not, as
evidenced by an Officer's Certificate of the Transferor delivered
to the Agent, adversely affect in any material respect the
interests of the Agent or the Class B Purchasers under this
Agreement or the Pooling and Servicing Agreement, and will not
result in a reduction or withdrawal of the then current rating by
any Rating Agency of any commercial paper notes issued by any
Structured Purchaser; (ii) all of the provisions of Section 13.1
of the Pooling and Servicing Agreement have been complied with
and (iii) in the case of any amendment of the Supplement, any
amendment to be effected pursuant to subsection 13.1(b) of the
Pooling and Servicing Agreement or any amendment to the interest
rate to be borne by the Class A Certificates or the Class C
Certificates, the prior written consent thereto shall have been
provided by the Required Class B Owners and the Required Class B
Purchasers;
(l) the Transferor and the Servicer shall execute
and deliver to the Agent all such documents and instruments and
do all such other acts and things as may be necessary or
reasonably required by the Agent or the Trustee to enable the
Trustee or the Agent to exercise and enforce their respective
rights under this Agreement and the Pooling and Servicing
Agreement and to realize thereon, and record and file and
rerecord and refile all such documents and instruments, at such
time or times, in such manner and at such place or places, all as
may be necessary or required by the Trustee or the Agent to
validate, preserve, perfect and protect the position of the
Trustee under the Pooling and Servicing Agreement;
(m) without the prior written consent of the
Required Class B Owners and the Required Class B Purchasers, the
Transferor will not appoint (or cause to be appointed) a
successor Trustee;
(n) neither the Transferor nor the Servicer will
consolidate with or merge into any other Person or convey or
transfer its properties and assets substantially as an entirety
to any Person, except (i) in accordance with Section 7.2 or 8.2
of the Pooling and Servicing Agreement, with respect to the
Transferor or the Servicer, respectively, and (ii) so long as (A)
the obligations of the Transferor or the Servicer, as the case
may be, under this Agreement and any other document executed and
delivered in connection herewith shall be expressly assumed in
writing by the transferee, purchaser or successor corporation,
(B) the Transferor or the Servicer, as the case may be, has
delivered to the Agent an Officer's Certificate of the Transferor
or the Servicer and an Opinion of Counsel addressed to the Agent
and each Class B Purchaser meeting the requirements of subsection
7.2(a)(ii) or 8.2(ii) of the Pooling and Servicing Agreement, as
appropriate, as provided in such agreement, (C) the Transferor or
the Servicer, as the case may be, has delivered to the Agent a
copy of the notice to the Rating Agencies delivered pursuant to
subsection 7.2(a)(iii) or 8.2(iii) of the Pooling and Servicing
Agreement, and (D) such consolidation, merger or transfer, in the
reasonable judgment of the Transferor and the Servicer, will not
have a material adverse effect on the interests of the Class B
Purchasers hereunder or under the Pooling and Servicing
Agreement;
(o) the Transferor shall not reduce or withdraw any
Discount Percentage then in effect unless such reduction or
withdrawal (i) would not in the reasonable belief of the
Transferor cause a Pay Out Event with respect to the Series 1999-
1 Certificates or an event which, with notice or lapse of time or
both, would constitute such a Pay Out Event to occur or (ii) is
consented to by the Required Class B Owners and the Required
Class B Purchasers;
(p) the Transferor and FDSNB will not make any
material amendment, modification or change to, or provide any
waiver under, the Receivables Purchase Agreement without the
prior written consent of the Required Class B Owners and the
Required Class B Purchasers;
(q) the Transferor will not incur, permit or suffer
to exist any lien, charge or other adverse claim on the Minimum
Transferor Amount in the Trust;
(r) the Transferor will not engage in any business
other than the transactions contemplated by this Agreement and
the Related Documents;
(s) the Transferor will not (i) incur any
liabilities or indebtedness, other than pursuant to this
Agreement and the Related Documents or reasonably related
thereto, (ii) incur or permit or suffer to exist any lien, charge
or encumbrance on any of its properties or assets, other than as
provided for in the Pooling and Servicing Agreement, (iii) make
any investments other than in Cash Equivalents or (iv) make any
capital expenditures other than those reasonably required for its
performance of its obligations hereunder and under the Related
Documents;
(t) the Transferor will not amend, modify or
otherwise make any change to its Certificate of Incorporation if
such amendment, modification or other change would have a
material adverse effect on the interests of the Class B
Purchasers, would affect any provisions thereof relating to the
commencement of a voluntary bankruptcy proceeding or which is
inconsistent with the assumptions set forth in the legal opinion
of Jones, Day, Reavis & Pogue, counsel to FDSNB and the
Transferor, issued in connection with this Agreement and the
transactions contemplated hereby and relating to the issues of
substantive consolidation; and
(u) Each of the Transferor and FDSNB will (i)
review the areas within its business and operations which would
reasonably be expected to be materially adversely affected by,
and will develop and implement a program to address on a timely
basis, the internal "Year 2000 Problem", and will make related
appropriate inquiry of material suppliers and vendors and (ii)
notify the Agent promptly if any auditor, regulator, or third
party consultant issues a management letter or other
communication regarding the Year 2000 exposure, program or
progress of the Transferor or FDSNB.
SECTION 6. MUTUAL COVENANTS REGARDING CONFIDENTIALITY
6.1 Covenants of Transferor, Etc. The Transferor and
the Servicer shall hold in confidence, and not disclose to any
Person, the terms of any fees payable in connection with this
Agreement except they may disclose such information (i) to their
officers, directors, employees, agents, counsel, accountants,
auditors, advisors or representatives, (ii) with the consent of
the Required Class B Purchasers and Agent, or (iii) to the extent
the Transferor or the Servicer or any Affiliate of either of them
should be required by any law or regulation applicable to it or
requested by any Governmental Authority to disclose such
information; provided, that, in the case of clause (iii), the
Transferor or the Servicer, as the case may be, will use all
reasonable efforts to maintain confidentiality and will (unless
otherwise prohibited by law) notify the Agent of its intention to
make any such disclosure prior to making such disclosure.
6.2 Covenants of Class B Purchasers. The Agent and
each Class B Purchaser covenants and agrees that any information
obtained by the Agent or such Class B Purchaser pursuant to this
Agreement shall be held in confidence (it being understood that
documents provided to the Agent hereunder may in all cases be
distributed by the Agent to the Class B Purchasers) except that
the Agent or such Class B Purchaser may disclose such information
(i) to its officers, directors, employees, agents, counsel,
accountants, auditors, advisors or representatives, (ii) to the
extent such information has become available to the public other
than as a result of a disclosure by or through the Agent or such
Class B Purchaser, (iii) to the extent such information was
available to the Agent or such Class B Purchaser on a
nonconfidential basis prior to its disclosure to the Agent or
such Class B Purchaser hereunder, (iv) with the consent of the
Transferor, (v) to the extent permitted by Section 8.1, (vi) to
the extent the Agent or such Class B Purchaser should be (A)
required in connection with any legal or regulatory proceeding or
(B) requested by any Governmental Authority to disclose such
information or (vii) in the case of any Class B Purchaser that is
a Structured Lender, to rating agencies, placement agents and
providers of liquidity and credit support who agree to hold such
information in confidence; provided, that, in the case of clause
(vi) above, the Agent or such Class B Purchaser, as applicable,
will use all reasonable efforts to maintain confidentiality and,
in the case of clause (vi)(A) above, will (unless otherwise
prohibited by law) notify the Transferor of its intention to make
any such disclosure prior to making any such disclosure.
SECTION 7. THE AGENTS
7.1 Appointment. (a) Each Class B Purchaser hereby
irrevocably designates and appoints the Agent as the agent of
such Class B Purchaser under this Agreement, and each such Class
B Purchaser irrevocably authorizes the Agent, as the agent for
such Class B Purchaser, to take such action on its behalf under
the provisions of the Related Documents and to exercise such
powers and perform such duties thereunder as are expressly
delegated to the Agent by the terms of this Agreement, together
with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Class B Purchaser, and no implied
covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist
against the Agent.
(b) Each Class B Purchaser hereby irrevocably
designates and appoints the Administrative Agent as the agent of
such Class B Purchaser under the Pooling and Servicing Agreement,
and each such Class B Purchaser irrevocably authorizes the
Administrative Agent, as the agent for such Class B Purchaser, to
take such action on its behalf under the provisions of the
Pooling and Servicing Agreement and to exercise such powers
thereunder as are expressly granted to the Administrative Agent
by the terms of the Pooling and Servicing Agreement, subject to
the terms and conditions of this Agreement, together with such
other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein or in
the Pooling and Servicing Agreement, or any fiduciary
relationship with any Class B Purchaser, and no implied
covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist
against the Administrative Agent.
7.2 Delegation of Duties. The Agent and the
Administrative Agent may execute any of its duties under this
Agreement or any of the other Related Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties.
Neither the Agent nor the Administrative Agent shall be
responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
7.3 Exculpatory Provisions. Neither the Agent nor the
Administrative Agent nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates
shall be (a) liable to any of the Class B Purchasers for any
action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Agreement or any of the other
Related Documents (except for its or such Person's own gross
negligence or willful misconduct) or (b) responsible in any
manner to any of the Class B Purchasers for any recitals,
statements, represen tations or warranties made by the
Transferor, the Servicer or the Trustee or any officer thereof
contained in this Agreement or any of the other Related Documents
or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent or the
Administrative Agent under or in connection with, this Agreement
or any of the other Related Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any of the other Related Documents or for any
failure of the Transferor, the Servicer or the Trustee to perform
its obligations hereunder or thereunder. Neither the Agent nor
the Administrative Agent shall be under any obligation to any
Class B Purchaser to ascertain or to inquire as to the observance
or performance of any of the agreements contained in, or
conditions of, this Agreement or any of the other Related
Documents, or to inspect the properties, books or records of the
Transferor, the Servicer, the Trustee or the Trust.
7.4 Reliance by Agent. The Agent and the
Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram,
telecopy, telex or teletype message, written statement, order or
other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Agent or the
Administrative Agent), independent accountants and other experts
selected by the Agent or the Administrative Agent. The Agent and
the Administrative Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any of the
other Related Documents unless it shall first receive such advice
or concurrence of the Required Class B Purchasers as it deems
appropriate or it shall first be indemnified to its satisfaction
by the Class B Purchasers or of the Committed Class B Purchasers
against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action.
The Agent and the Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, under
this Agreement or any of the other Related Documents in
accordance with a request of the Required Class B Owners and the
Required Class B Purchasers and such request and any action taken
or failure to act pursuant thereto shall be binding upon all
present and future Class B Purchasers.
7.5 Notices. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any breach of this
Agreement or the occurrence of any Pay Out Event or any
Termination Event unless the Agent has received notice from the
Transferor, the Servicer, the Trustee or any Class B Purchaser
referring to this Agreement, describing such event. In the event
that the Agent receives such a notice, the Agent promptly shall
give notice thereof to the Class B Owners and the Required Class
B Purchasers. The Agent shall take such action with respect to
such event as shall be reasonably directed by the Required Class
B Owners and the Required Class B Purchasers; provided that
unless and until the Agent shall have received such directions,
the Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such event as
it shall deem advisable in the best interests of the Class B
Purchasers.
7.6 Non-Reliance on Agent and Other Class B
Purchasers. Each Class B Purchaser expressly acknowledges that
neither the Agent nor the Administrative Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-
fact or Affiliates has made any representations or warranties to
it and that no act by the Agent or the Administrative Agent
hereafter taken, including any review of the affairs of the
Transferor, the Servicer, the Trustee or the Trust shall be
deemed to constitute any representation or warranty by the Agent
or the Administrative Agent to any Class B Purchaser. Each Class
B Purchaser represents to the Agent and the Administrative Agent
that it has, independently and without reliance upon the Agent or
any other Class B Purchaser, and based on such documents and
information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Trust,
the Trustee, the Transferor and the Servicer and made its own
decision to purchase its Class B Certificate hereunder and enter
into this Agreement. Each Class B Purchaser also represents that
it will, independently and without reliance upon the Agent or the
Administrative Agent or any other Class B Purchaser, and based on
such documents and information as it shall deem appropriate at
the time, continue to make its own analysis, appraisals and
decisions in taking or not taking action under this Agreement or
any of the other Related Documents, and to make such
investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Trust, the Trustee, the Transferor and
the Servicer. Except for notices, reports and other documents
received by the Agent under Section 5 hereof, the Agent shall not
have any duty or responsibility to provide any Class B Purchaser
with any credit or other information concerning the business,
operations, property, condition (financial or otherwise),
prospects or creditworthiness of the Trust, the Trustee, the
Transferor or the Servicer which may come into the possession of
the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
7.7 Indemnification. The Committed Class B Purchasers
agree to indemnify the Agent and the Administrative Agent in its
capacity as such (without limiting the obligation of the
Transferor, the Trust or the Servicer to reimburse the Agent or
the Administrative Agent for any such amounts), ratably according
to their respective Commitment Percentages, from and against any
and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the obligations
under this Agreement, including the Class B Invested Amount) be
imposed on, incurred by or asserted against the Agent or the
Administrative Agent in any way relating to or arising out of
this Agreement, or any documents contemplated by or referred to
herein or the transactions contemplated hereby or any action
taken or omitted by the Agent or the Administrative Agent under
or in connection with any of the foregoing; provided that no
Class B Purchaser shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
the Agent or the Administrative Agent resulting from its own
gross negligence or willful misconduct. The agreements in this
subsection shall survive the payment of the obligations under
this Agreement, including the Class B Invested Amount.
7.8 Agents in Their Individual Capacities. The Agent,
the Administrative Agent and their Affiliates may make loans to,
accept deposits from and generally engage in any kind of business
with the Trust, the Trustee, the Servicer and the Transferor as
though the Agent and the Administrative Agent were not the agents
hereunder. Each Class B Purchaser acknowledges that PNC may act
(i) as administrator and agent for one or more Structured
Purchasers and in such capacity acts and may continue to act on
behalf of each such Structured Purchaser in connection with its
business and (ii) as the agent for certain financial institutions
under the liquidity and credit enhancement agreements relating to
this Agreement to which any such Structured Purchaser is party
and in various other capacities relating to the business of any
such Structured Purchaser under various agreements. PNC in its
capacity as the Agent shall not, by virtue of its acting in any
such other capacities, be deemed to have duties or
responsibilities hereunder or be held to a standard of care in
connection with the performance of its duties as the Agent or the
Administrative Agent other than as expressly provided in this
Agreement. PNC may act as the Agent and the Administrative Agent
without regard to and without additional duties or liabilities
arising from its role as such administrator or agent or arising
from its acting in any such other capacity.
7.9 Successor Agent. (a) The Agent may resign as
Agent upon ten days' notice to the Class B Purchasers, the
Trustee, the Transferor and the Servicer with such resignation
becoming effective upon a successor agent succeeding to the
rights, powers and duties of the Agent pursuant to this
subsection 7.9(a). If the Agent shall resign as Agent under this
Agreement, then the Required Class B Purchasers and the Required
Class B Owners shall appoint from among the Committed Class B
Purchasers a successor agent for the Class B Purchasers. The
successor agent shall succeed to the rights, powers and duties of
the Agent, and the term "Agent" shall mean such successor agent
effective upon its appointment, and the former Agent's rights,
powers and duties as Agent shall be terminated, without any other
or further act or deed on the part of such former Agent or any of
the parties to this Agreement. After the retiring Agent's
resignation as Agent, the provisions of this Section 7 shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
(b) The Administrative Agent may resign as
Administrative Agent upon ten days' notice to the Class B
Purchasers, the Class A Purchasers (as defined in the Class A
Certificate Purchase Agreement), the Trustee, the Transferor and
the Servicer with such resignation becoming effective upon a
successor agent succeeding to the rights, powers and duties of
the Administrative Agent pursuant to this subsection 7.9(b). If
the Administrative Agent shall resign as Administrative Agent
under this Agreement, then the Required Class B Purchasers and
the Required Class B Owners shall appoint from among the
Committed Class B Purchasers hereunder or under the Class B
Certificate Purchase Agreement a successor Administrative Agent
of the Class B Certificateholders and Class A Certificateholders
as provided in the Supplement; provided that no such appointment
shall be effective unless such successor is also appointed as
successor Administrative Agent under the Class A Certificate
Purchase Agreement. The successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the
term "Administrative Agent" shall mean such successor agent
effective upon its appointment, and the former Administrative
Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the
part of such former Administrative Agent or any of the parties to
this Agreement. After the retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this
Section 7 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under
this Agreement.
SECTION 8. SECURITIES LAWS; TRANSFERS; TAX TREATMENT
8.1 Transfers of Class B Certificates. (a) Each
Class B Owner agrees that the beneficial interest in the Class B
Certificates purchased by it will be acquired for investment only
and not with a view to any public distribution thereof, and that
such Class B Owner will not offer to sell or otherwise dispose of
any Class B Certificate acquired by it (or any interest therein)
in violation of any of the registration requirements of the Act
or any applicable state or other securities laws. Each Class B
Owner acknowledges that it has no right to require the Transferor
to register, under the Act or any other securities law, the Class
B Certificates (or the beneficial interest therein) acquired by
it pursuant to this Agreement or any Transfer Supplement. Each
Class B Owner hereby confirms and agrees that in connection with
any transfer or syndication by it of an interest in the Class B
Certificates, such Class B Owner has not engaged and will not
engage in a general solicitation or general advertising including
advertisements, articles, notices or other communications
published in any newspaper, magazine or similar media or
broadcast over radio or television, or any seminar or meeting
whose attendees have been invited by any general solicitation or
general advertising. Each initial Class B Owner agrees with the
Transferor that it will execute and deliver to the Transferor,
the Servicer and the Trustee on or before the Closing Date a
letter in the form attached hereto as Exhibit A (an "Investment
Letter") with respect to the purchase by such Class B Owner of a
beneficial interest in the Class B Certificates.
(b) Each initial purchaser of a Class B Certificate
or any interest therein and any Assignee thereof or Participant
therein shall certify to the Transferor, the Servicer and the
Trustee that it is either (A)(i) a citizen or resident of the
United States, (ii) a corporation or other entity organized in or
under the laws of the United States or any political subdivision
thereof which, if such entity is a tax-exempt entity, recognizes
that payments with respect to the Class B Certificates may
constitute unrelated business taxable income or (iii) a person
not described in (i) or (ii) whose income from the Class B
Certificates is and will be effectively connected with the
conduct of a trade or business within the United States (within
the meaning of the Code) and whose ownership of any interest in a
Class B Certificate will not result in any withholding obligation
with respect to any payments with respect to the Class B
Certificates by any Person (other than withholding, if any, under
Section 1446 of the Code) and who will furnish to the Servicer
and the Trustee, and to the Class B Owner making the Transfer a
properly executed U.S. Internal Revenue Service Form 4224 (and to
agree (to the extent legally able) to provide a new Form 4224
upon the expiration or obsolescence of any previously delivered
form and comparable statements in accordance with applicable
United States laws) or (B) an estate or trust the income of which
is includible in gross income for United States federal income
tax purposes.
(c) Any sale, transfer, assignment, participation,
pledge, hypothecation or other disposition (a "Transfer") of a
Class B Certificate or any interest therein may be made only in
accordance with this Section 8.1 and in accordance with and
subject to the applicable limitations set forth in Section 6.18
of the Pooling and Servicing Agreement. Any Transfer of an
interest in a Class B Certificate, a Commitment or any
Noncommitted Purchaser Percentage, when combined with any
substantially concurrent Transfers hereunder between the same
parties and any substantially concurrent Transfer of an interest
in a Class A Certificate or a Commitment or Noncommitted
Purchaser Percentage (as such terms are defined for purposes of
the Class A Certificate Purchase Agreement) between the same
parties, shall be in respect of (i) in the case of a Committed
Class B Purchaser, at least $5,000,000 in the aggregate, which
may be composed of any one or more of (A) Class B Invested
Amount, (B) to the extent in excess of the Class B Invested
Amount subject to such Transfer, Commitment hereunder, (C) Class
A Invested Amount, and (D) to the extent in excess of the Class A
Invested Amount subject to such concurrent Transfer, Commitment
under the Class A Certificate Purchase Agreement, or (ii) in the
case of a Noncommitted Class B Purchaser, at least $5,000,000 in
the aggregate, which may be composed of any one or more of (A)
Class B Invested Amount, (B) to the extent in excess of the Class
B Invested Amount subject to such Transfer, the product of the
Noncommitted Purchaser Percentage subject to such Transfer times
the aggregate Commitments hereunder, (C) Class A Invested Amount
and (D) to the extent in excess of the Class A Invested Amount
subject to such concurrent Transfer, the product of the
Noncommitted Purchaser Percentage under the Class A Certificate
Purchase Agreement subject to such Transfer times the aggregate
Commitments under the Class A Certificate Purchase Agreement.
Any Transfer of an interest in a Class B Certificate otherwise
permitted by this Section 8.1 will be permitted only if it
consists of a pro rata percentage interest in all payments made
with respect to the Class B Purchaser's beneficial interest in
such Class B Certificate. No Class B Certificate or any interest
therein may be Transferred by assignment or Participation to any
Person (each, a "Transferee") unless prior to the transfer the
Transferee shall have executed and delivered to the Agent and the
Transferor an Investment Letter and, except for any Transfer to
an Eligible Transferee, each of the Transferor and the Servicer
shall have granted its prior consent thereto; provided that in
the event of a Transfer from a Class B Purchaser to one of its
Affiliates or to a Person which, prior to such Transfer, is a
Class B Purchaser of all of its interest in the Class B
Certificates the transferring Class B Purchaser shall provide the
Transferor and the Servicer with five (5) Business Days prior
written notice thereof and the prior consent of the Transferor
and the Servicer shall not be required for such Transfer.
Each of the Transferor and the Servicer authorizes
each Class B Purchaser to disclose to any Transferee and Support
Bank and any prospective Transferee or Support Bank any and all
financial information in the Class B Purchaser's possession
concerning the Trust, the Transferor or the Servicer which has
been delivered to the Agent or such Class B Purchaser by or on
behalf of the Trust or the Transferor or the Servicer pursuant to
this Agreement (including information obtained pursuant to rights
of inspection granted hereunder) or the other Related Documents
or which has been delivered to such Class B Purchaser by or on
behalf of the Trust, the Transferor or the Servicer in connection
with such Class B Purchaser's credit evaluation of the Trust, the
Transferor or the Servicer prior to becoming a party to, or
purchasing an interest in this Agreement or the Class B
Certificates; provided that prior to any such disclosure, such
Transferee or Support Bank or prospective Transferee or Support
Bank shall have executed an agreement agreeing to be bound by the
provisions of Section 6.2 hereof.
(d) Each Class B Purchaser may, in accordance with
applicable law, at any time grant participations in all or part
of its interest in its Commitment or in the Class B Certificates
including the payments due to it under this Agreement and the
Pooling and Servicing Agreement (each, a "Participation") to any
Person (each, a "Participant"); provided, however, that no
Participation shall be granted to any Person unless and until the
Agent shall have consented thereto and the conditions to Transfer
specified in this Agreement and the Pooling and Servicing
Agreement, including in subsection 8.1(c) hereof and Section 6.18
of the Pooling and Servicing Agreement, shall have been satisfied
and that such Participation consists of a pro rata percentage
interest in all payments made with respect to such Class B
Purchaser's beneficial interest (if any) in the Class B
Certificates. In connection with any such Participation, the
Agent shall maintain a register of each Participant and the
amount of each Participation. Each Class B Purchaser hereby
acknowledges and agrees that (A) any such Participation will not
alter or affect such Class B Purchaser's direct obligations
hereunder, and (B) neither the Trustee, the Transferor nor the
Servicer shall have any obligation to have any communication or
relationship with any Participant. Each Class B Purchaser and
each Participant shall comply with the provisions of subsection
2.5(c). No Participant shall be entitled to Transfer all or any
portion of its Participation, without the prior written consent
of the Agent. The Transferor shall be obligated to indemnify a
Participant for all amounts owing to it under Sections 2.4, 2.5
and 2.7 as if such Participant were a Class B Purchaser
hereunder, but, in the case of Sections 2.4 and 2.5, only in an
amount not in excess of the amounts which would have been owing
thereunder had such Participation not been granted and, in the
case of Section 2.5, provided that such Participant has complied
with the provisions of subsection 2.5(c) as if it were a Class B
Purchaser. Each Class B Purchaser shall give the Agent notice of
the consummation of any sale by it of a Participation and the
Agent (upon receipt of notice from the related Class B Purchaser)
shall promptly notify the Transferor, the Servicer and the
Trustee.
(e) Each Class B Purchaser may, with the consent of
the Agent and in accordance with applicable law, sell or assign
(each, an "Assignment"), to any Person (each, an "Assignee")
which is an Eligible Assignee (or is otherwise consented to in
writing by the Transferor and the Servicer) all or any part of
its interest in its Commitment or in the Class B Certificates and
its rights and obligations under this Agreement and the Pooling
and Servicing Agreement pursuant to an agreement substantially in
the form attached hereto as Exhibit C hereto (a "Transfer
Supplement"), executed by such Assignee and the Class B Purchaser
and delivered to the Agent for its acceptance and consent;
provided, however, that no such assignment or sale shall be
effective unless and until the conditions to Transfer specified
in this Agreement and the Pooling and Servicing Agreement,
including in subsection 8.1(c) hereof and Section 6.18 of the
Pooling and Servicing Agreement, shall have been satisfied; and
provided further, however, that no such assignment or sale to an
Assignee which would become a Committed Class B Purchaser shall
be effective unless either (i) the commercial paper notes or the
short-term obligations of such Assignee are rated at least A-1 by
Standard & Poor's and P-1 by Moody's or (ii) such assignment or
sale shall have been consented to by all Class B Purchasers. From
and after the effective date determined pursuant to such Transfer
Supplement, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Transfer Supplement, have the
rights and obligations of a Class B Purchaser hereunder as set
forth therein and (y) the transferor Class B Purchaser shall, to
the extent provided in such Transfer Supplement, be released from
its Commitment and other obligations under this Agreement;
provided, however, that after giving effect to each such
Assignment, the obligations released by any such Class B
Purchaser shall not exceed the obligations assumed by an Assignee
or Assignees. Such Transfer Supplement shall be deemed to amend
this Agreement to the extent, and only to the extent, necessary
to reflect the addition of such Assignee and the resulting
adjustment of Percentage Interests, Noncommitted Purchaser
Percentages or Commitment Percentages arising from the
Assignment. Upon its receipt of a duly executed Transfer
Supplement, the Agent shall on the effective date determined
pursuant thereto give notice of such acceptance to the
Transferor, the Servicer and the Trustee and the Servicer will
provide notice thereof to each Rating Agency (if required).
Upon surrender for registration of transfer of a
Class B Purchaser's beneficial interest in the Class B
Certificates (or portion thereof) and delivery to the Transferor
and the Trustee of an Investment Letter, executed by the
registered owner (and the beneficial owner if it is a Person
other than the registered owner), and receipt by the Trustee of a
copy of the duly executed related Transfer Supplement and such
other documents as may be required under this Agreement, such
beneficial interest in the Class B Certificates (or portion
thereof) shall be transferred in the records of the Trustee and
the Agent and, if requested by the Assignee, new Class B
Certificates shall be issued to the Assignee and, if applicable,
the transferor Class B Purchaser in amounts reflecting such
Transfer as provided in the Pooling and Servicing Agreement.
Such Transfers of Class B Certificates (and interests therein)
shall be subject to this Section 8.1 in lieu of any regulations
which may be prescribed under Section 6.3 of the Pooling and
Servicing Agreement. Successive registrations of Transfers as
aforesaid may be made from time to time as desired, and each such
registration of a transfer to a new registered owner shall be
noted on the Certificate Register.
(f) Each Class B Purchaser may pledge its interest
in the Class B Certificates to any Federal Reserve Bank as
collateral in accordance with applicable law.
(g) Any Class B Purchaser shall have the option to
change its Investing Office, provided that such Class B Purchaser
shall have prior to such change in office complied with the
provisions of subsection 2.5(c) and provided further that such
Class B Purchaser shall not be entitled to any amounts otherwise
payable under Section 2.4 or 2.5 resulting solely from such
change in office unless such change in office was mandated by
applicable law or by such Class B Purchaser's compliance with the
provisions of this Agreement.
(h) Each Affected Party which, on the date it
became an Affected Party, was an Eligible Assignee or was
consented to by the Transferor and the Servicer shall be entitled
to receive additional payments pursuant to Sections 2.4, 2.5 and
2.7 hereof as though it were a Class B Purchaser and such Section
applied to its interest in or commitment to acquire an interest
in the Class B Certificates; provided that such Affected Party
shall not be entitled to additional payments pursuant to (i)
Section 2.4 by reason of Regulatory Changes which occurred prior
to the date it became an Affected Party or (ii) Section 2.5
attributable to its failure to satisfy the requirements of
subsection 2.5(c) as if it were a Class B Purchaser.
(i) If any increased amounts referred to in Sections
2.4 or 2.5 owing to any Affected Party are not eliminated or
reduced by the designation of a different Investing Office or
other actions taken pursuant to subsection 2.4(c) and payment
thereof hereunder is not waived by such Affected Party within 45
days after the Transferor or the Servicer shall have given notice
to such Affected Party, its related Class B Purchaser and the
Agent of the intent of the Transferor to exercise its rights
under this sentence, the Transferor shall have the right to
replace such related Class B Purchaser hereunder with a
Replacement Purchaser; provided, that (x) such related Class B
Purchaser shall not be replaced hereunder until such related
Class B Purchaser has been paid in full all amounts owed to it
hereunder and with respect to its interest in the Class B
Certificates and (y) if the related Class B Purchaser is the
Agent or the Administrative Agent or, unless otherwise agreed by
the Agent and the Administrative Agent, a Structured Purchaser
sponsored or administered by the Administrative Agent or the
Agent (in its individual capacity), a replacement Agent and
Administrative Agent shall have been appointed in accordance with
Section 7.9 and the Agent and the Administrative Agent to be
replaced shall have been paid in full all amounts owed to it
hereunder.
(j) Each Affected Party claiming increased amounts
described in Sections 2.4 or 2.5 shall furnish, through its
related Structured Purchaser, to the Trustee, the Agent, the
Servicer and the Transferor a certificate setting forth any
action taken by such Affected Party to reduce or eliminate such
increased amounts pursuant to subsection 2.4(c) and the basis and
amount of each request by such Affected Party for any such
amounts referred to in Sections 2.4 or 2.5, such certificate to
be conclusive with respect to the factual information set forth
therein absent manifest error.
(k) In the event that a Committed Class B Purchaser
was at any time a Defaulting Purchaser or is a Downgraded
Purchaser, the Transferor shall have the right and to replace
such Class B Purchaser hereunder with a Replacement Purchaser,
and the Agent, acting at the request of the Required Class B
Purchasers or the Required Class B Owners, shall have the right
to replace such Committed Class B Purchaser with a Replacement
Purchaser which is an Eligible Assignee or is otherwise
reasonably acceptable to the Transferor, which Replacement
Purchaser shall succeed to the rights of such Committed Class A
Purchaser under this Agreement, and such Committed Class B
Purchaser shall assign its beneficial interest in the Class B
Certificates to such Replacement Purchaser in accordance with the
provisions of this Section 8.1; provided, that (A) such Committed
Class B Purchaser shall not be replaced hereunder with a new
investor until such Committed Class B Purchaser has been paid in
full its Percentage Interest of the Class B Investor Principal
Balance and all accrued and unpaid Yield (including any
Liquidation Fee determined for the replacement date) thereon by
such new investor and all other amounts (including all amounts
owing under Sections 2.4 and 2.5) owed to it and to all
Participants and Affected Parties with respect to such Class B
Purchaser pursuant to this Agreement and (ii) if the Class B
Purchaser to be replaced is the Agent or the Administrative Agent
or, unless the Agent and the Administrative Agent otherwise
agree, a Structured Purchaser sponsored or administered by the
Administrative Agent or the Agent (in its individual capacity), a
replacement Agent or Administrative Agent, as the case may be,
shall have been appointed in accordance with Section 7.9 and the
Agent or Administrative Agent, as the case may be, to be replaced
shall have been paid all amounts owing to it as Agent or
Administrative Agent, as the case may be, pursuant to this
Agreement. For purposes of this subsection, a Committed Class B
Purchaser shall be a "Downgraded Purchaser" if and so long as the
credit rating assigned to its short-term obligations by Moody's
or Standard & Poor's on the date on which it became a party to
this Agreement shall have been reduced or withdrawn.
8.2 Tax Characterization of the Class B Certificates.
It is the intention of the parties hereto that the Class B
Certificates be treated for tax purposes as indebtedness. In the
event that the Class B Certificates are not so treated, it is the
intention of the parties that such Class B Certificates be
treated as an interest in a partnership that owns the
Receivables. In the event that the Class B Certificates are
treated as an interest in a partnership, it is the intention of
the parties that interest payable on such Class B Certificates be
treated as guaranteed payment and, if for any reason it is not so
treated, that the holders of such Class B Certificates be
specially allocated gross interest income equal to the interest
accrued during each applicable accrual period on such Class B
Certificates.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. This Agreement may not be
amended, supplemented or modified nor may any provision hereof be
waived except in accordance with the provisions of this Section
9.1. With the written consent of the Required Class B Owners and
the Required Class B Purchasers, the Agent, the Transferor and
the Servicer may, from time to time, enter into written
amendments, supplements, waivers or modifications hereto for the
purpose of adding any provisions to this Agreement or changing in
any manner the rights of any party hereto or waiving, on such
terms and conditions as may be specified in such instrument, any
of the requirements of this Agreement; provided, however, that no
such amendment, supplement, waiver or modification shall (i)
reduce the amount of or extend the maturity of any Class B
Certificate or reduce the rate or extend the time of payment of
interest thereon, or reduce or alter the timing of any other
amount payable to any Class B Purchaser hereunder or under the
Supplement, in each case without the consent of the Class B
Purchaser affected thereby, (ii) amend, modify or waive any
provision of this Section 9.1, or, if such amendment would have a
material adverse effect on the Class B Purchasers, the definition
of "Class B Invested Amount", or reduce the percentage specified
in the definition of Required Class B Owners or Required Class B
Purchasers, in each case without the written consent of all Class
B Purchasers or (iii) amend, modify or waive any provision of
Section 7 of this Agreement without the written consent of the
Agent, the Administrative Agent, the Required Class B Owners and
Required Class B Purchasers. Any waiver of any provision of this
Agreement shall be limited to the provisions specifically set
forth therein for the period of time set forth therein and shall
not be construed to be a waiver of any other provision of this
Agreement.
Each party hereto agrees, at the request of the Agent
from time to time to enter into or to consent to, as applicable,
any amendments or other modifications to this Agreement or the
Related Documents, other than those requiring the consent of all
Class B Purchasers as provided above in this subsection, and the
Transferor agrees to cause its Certificate of Incorporation and
Bylaws to be amended or otherwise modified, as shall reasonably
be determined by the Agent to be required for any initial Class B
Purchaser which is a Structured Purchaser to obtain or maintain
an informal rating of the Class B Certificates which will permit
such Structured Purchaser's commercial paper notes to maintain at
least the rating from Standard & Poor's and Moody's as in effect
immediately prior to such Structured Purchaser's becoming a Class
B Purchaser after giving effect to its initial purchase of the
Class B Certificates and to purchases from time to time by such
Structured Purchaser of VFC Additional Class B Invested Amounts
as contemplated by this Agreement, without giving effect to any
increase in any letter of credit or other enhancement provided to
such Structured Purchaser (other than liquidity support provided
to such Structured Purchaser by Affected Parties).
The Administrative Agent may cast any vote or give any
direction under the Pooling and Servicing Agreement on behalf of
the Class B Certificateholders if it has been directed to do so
by (i) the Required Class B Owners, (ii) the Required Class B
Purchasers, and (iii) by the Class A Purchasers (as defined in
the Class A Certificate Purchase Agreement) required under the
terms of Section 9.1 of the Class A Certificate Purchase
Agreement.
9.2 Notices. (a) All notices, requests and demands
to or upon the respective parties hereto to be effective shall be
in writing (including by telecopy, telegraph or telex), and,
unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or, in the
case of mail or telecopy notice, when received, or, in the case
of telegraphic notice, when delivered to the telegraph company,
or, in the case of telex notice, when sent, answer back received,
addressed as follows or, with respect to a Class B Purchaser, as
set forth in its respective Joinder Supplement or Transfer
Supplement, or to such other address as may be hereafter notified
by the respective parties hereto:
The Transferor: Prime II Receivables Corporation
9111 Duke Boulevard
Mason, Ohio 45040
Attention: President
Telephone: (513) 573-2048
Telefax: (513) 573-2039
The Servicer: FDS National Bank
9111 Duke Boulevard
Mason, Ohio 45040
Attention: Chief Financial Officer
Telephone: (513) 573-2265
Telefax: (513) 573-2720
With a copy to:
Federated Department Stores, Inc.
7 West Seventh Street
Cincinnati, Ohio 45202
Attention: General Counsel
Telephone: (513) 579-7000
Telefax: (513) 579-7462
The Trustee: The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Capital Markets Fiduciary Services
Telephone: (212) 946-8608
Telefax: (212) 946-3240
The Agent PNC Bank, National Association
or the One PNC Plaza
Administrative 249 Fifth Avenue
Agent: Pittsburgh, Pennsylvania 15220-2707
Attention: John Smathers
Telephone: (412) 762-6440
Telefax: (412) 762-9814
Moody's: Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: ABS Monitoring Department, 4th Floor
Telephone: (212) 553-3607
Telefax: (212) 553-4773
Standard Standard & Poor's Ratings Services
& Poor's: 26 Broadway, 15th Floor
New York, New York 10004
Attention: Asset-Backed Surveillance Department
Telephone: (212) 208-1892
Telefax: (212) 412-0323
(b) All payments to be made to the Agent or any Class
B Purchaser hereunder shall be made in United States dollars and
in immediately available funds not later than 2:30 p.m.
Pittsburgh, Pennsylvania time on the date payment is due, and,
unless otherwise specifically provided herein, shall be made to
the Agent, for the account of one or more of the Class B
Purchasers or for its own account, as the case may be. Unless
otherwise directed by the Agent, all payments to it shall be made
by federal wire (ABA #043-000-096) and telegraph name: PNC Bank,
National Association and (a) in the case of payments to Market
Street Capital Corp., to DDA #1002420425, or (b) in the case of
payments to Market Street Funding Corporation, to DDA
#1002422076, and, in either case, including the federal wire
number, to Asset-Backed Securities Group, Attn: John Smathers of
PNC (412-762-6440).
9.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Agent or
any Class B Purchaser, any right, remedy, power or privilege
hereunder or under any of the other Related Documents shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder or
under any of the other Related Documents preclude any other or
further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and
privileges provided herein and in the other Related Documents are
cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
9.4 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Transferor, the
Servicer, the Agent, the Administrative Agent, the Class B
Purchasers, any Assignee and their respective successors and
assigns, except that the Transferor and the Servicer may not
assign or transfer any of their respective rights or obligations
under this Agreement except as provided herein and in the Pooling
and Servicing Agreement, without the prior written consent of the
Required Class B Owners and the Required Class B Purchasers.
9.5 Successors to Servicer. (a) In the event that a
transfer of servicing occurs under Article VIII or Article X of
the Pooling and Servicing Agreement, (i) from and after the
effective date of such transfer, the Successor Servicer shall be
the successor in all respects to the Servicer and shall be
responsible for the performance of all functions to be performed
by the Servicer from and after such date, except as provided in
the Pooling and Servicing Agreement, and shall be subject to all
the responsibilities, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions hereof, and
all references in this Agreement to the Servicer shall be deemed
to refer to the Successor Servicer, and (ii) as of the date of
such transfer, the Successor Servicer shall be deemed to have
made with respect to itself the representations and warranties
made by the Servicer in Section 4.2 (in the case of subsection
4.2(a) with appropriate factual changes); provided, however, that
the references to the Servicer contained in Section 5.1 of this
Agreement shall be deemed to refer to the Servicer with respect
to responsibilities, duties and liabilities arising out of an act
or acts, or omission, or an event or events giving rise to such
responsibilities, duties and liabilities and occurring during
such time that the Servicer was Servicer under this Agreement and
shall be deemed to refer to the Successor Servicer with respect
to responsibilities, duties and liabilities arising out of an act
or acts, or omission, or an event or events giving rise to such
responsibilities, duties and liabilities and occurring during
such time that the Successor Servicer acts as Servicer under this
Agreement; provided, however, to the extent that an obligation to
indemnify the Class B Purchasers under Section 2.7 arises as a
result of any act or failure to act of any Successor Servicer in
the performance of servicing obligations under the Pooling and
Servicing Agreement or the Supplement, such indemnification
obligation shall be of the Successor Servicer and not FDSNB.
Upon the transfer of servicing to a Successor Servicer, such
Successor Servicer shall furnish to the Agent copies of its
audited annual financial statements for each of the three
preceding fiscal years or if the Trustee or any other banking
institution becomes the Successor Servicer, such Successor
Servicer shall provide, in lieu of the audited financial
statements required in the immediately preceding clause, complete
and correct copies of the publicly available portions of its
Consolidated Reports of Condition and Income as submitted to the
Federal Deposit Insurance Corporation for the two most recent
year end periods.
(b) In the event that any Person becomes the
successor to the Transferor pursuant to Article VII of the
Pooling and Servicing Agreement, from and after the effective
date of such transfer, such successor to the Transferor shall be
the successor in all respects to the Transferor and shall be
responsible for the performance of all functions to be performed
by the Transferor from and after such date, except as provided in
the Pooling and Servicing Agreement, and shall be subject to all
the responsibilities, duties and liabilities relating thereto
placed on the Transferor by the terms and provisions hereof, and
all references in this Agreement to the Transferor shall be
deemed to refer to the successor to the Transferor; provided,
however, that the references to the Transferor contained in
Sections 2.5, 2.7 and 5.1 of this Agreement shall be deemed to
refer to Prime II Receivables Corporation with respect to
responsibilities, duties and liabilities arising out of an act or
acts, or omission, or an event or events giving rise to such
responsibilities, duties and liabilities and occurring during
such time that Prime II Receivables Corporation was Transferor
under this Agreement and shall be deemed to refer to the
successor to Prime II Receivables Corporation as Transferor with
respect to responsibilities, duties and liabilities arising out
of an act or acts, or omission, or an event or events giving rise
to such responsibilities, duties and liabilities and occurring
during such time that the successor to Prime II Receivables
Corporation acts as Transferor under this Agreement.
9.6 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of
separate counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same
instrument.
9.7 Severability. Any provisions of this Agreement
which are prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provisions in any other jurisdiction.
9.8 Integration. This Agreement and the Class B Fee
Letter represent the agree ment of the Agent, the Administrative
Agent, the Transferor, the Servicer and the Class B Purchasers
with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the
Class B Purchasers, the Agent or the Administrative Agent
relative to subject matter hereof not expressly set forth or
referred to herein or therein. FDSNB shall retain a copy of each
of the above-referenced agreements as part of its official
records.
9.9 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
9.10 Termination. This Agreement shall remain in full
force and effect until the earlier to occur of (a) payment in
full of the Class B Repayment Amount and all other amounts
payable to the Class B Purchasers, the Agent and the
Administrative Agent hereunder and the termination of all
Commitments and (b) the Series 1999-1 Termination Date; provided,
however, that if the Class B Repayment Amount and all other
amounts payable to the Class B Purchasers hereunder are paid in
full and all Commitments have terminated prior to the Series 1999-
1 Termination Date, the Agent shall notify the Trustee that
thereafter all amounts otherwise payable to the Class B
Purchasers hereunder shall be payable to the Transferor or any
Person designated thereby; and provided, further, that the
provisions of Sections 2.4, 2.5, 2.6, 2.7 and 7.7 and subsections
9.12(a) and 9.12(b) shall survive termination of this Agreement
and amounts payable to the Class B Purchasers thereunder shall
remain payable to the Class B Purchasers.
9.11 Action by Servicer. Wherever the Trustee or the
Trust is authorized or required to take an action or give a
notice pursuant to this Agreement and if the Trustee fails timely
to take such action or give such notice pursuant to this
Agreement after being requested to do so by the Servicer, the
Servicer shall take such action or give such notice on behalf of
the Trustee or the Trust.
9.12 Limited Recourse; No Proceedings. (a) The
obligations of the Transferor and the Servicer under this
Agreement are several (except as specifically provided herein)
and are solely the corporate obligations of the Transferor and
the Servicer. No recourse shall be had for the payment of any
fee or other obligation or claim arising out of or relating to
this Agreement or any other agreement, instrument, document or
certificate executed and delivered or issued by the Transferor
and the Servicer or any officer of any of them in connection
therewith, against any stockholder, employee, officer, director
or incorporator of the Transferor or the Servicer, and neither
the Agent nor any Class B Purchaser shall look to any property or
assets of the Transferor, other than to (a) amounts payable to
the Transferor under the Receivables Purchase Agreement, any
Supplement or the Pooling and Servicing Agreement and (b) any
other assets of the Transferor not pledged to third parties or
otherwise encumbered in any manner permitted by the Transferor's
Certificate of Incorporation. Each Class B Purchaser and the
Agent hereby agrees that to the extent such funds are
insufficient or unavailable to pay any amounts owing to it by the
Transferor pursuant to this Agreement, prior to the earlier of
the Trust Termination Date or the commencement of a bankruptcy or
insolvency proceeding by or against the Transferor, it shall not
constitute a claim against the Transferor. Nothing in this
paragraph shall limit or otherwise affect the liability of the
Servicer with respect to any amounts owing by it hereunder or the
right of the Agent or any Class B Purchaser to enforce such
liability against the Servicer or any of its assets.
(b) Each of the Transferor, the Servicer and the
Trustee hereby agrees that it shall not institute or join against
any Structured Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law,
for one year and a day after the latest maturing commercial paper
note, medium term note or other debt security issued by such
Structured Lender is paid. The foregoing shall not limit the
Transferor's, the Servicer's or the Trustee's right to file any
claim in or otherwise take any action with respect to any such
bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding that was instituted by any Person other
than the Transferor, the Servicer or the Trustee.
9.13 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any
document, certificate or statement delivered pursuant hereto or
in connection herewith shall survive the execution and delivery
of this Agreement, the purchase of the Class B Certificates
hereunder and the termination of this Agreement.
9.14 Submission to Jurisdiction; Waivers. EACH OF THE
TRANSFEROR, THE ADMINISTRATIVE AGENT, THE SERVICER, THE TRUST,
THE TRUSTEE, THE AGENT AND EACH CLASS B PURCHASER HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT TO WHICH IT IS A PARTY, OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK AND THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE
COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR
PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT
AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH
ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A
COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH IN
SECTION 9.2 OR AT SUCH OTHER ADDRESS OF WHICH THE
AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO;
AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT
THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO SUE IN ANY OTHER JURISDICTION.
9.15 WAIVERS OF JURY TRIAL. THE TRANSFEROR, THE
SERVICER, THE TRUST, THE TRUSTEE, THE AGENT AND THE CLASS B
PURCHASERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER DOCUMENT OR INSTRUMENT RELATED HERETO AND FOR ANY
COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this
Certificate Purchase Agreement to be duly executed by their
respective officers as of the day and year first above written.
PRIME II RECEIVABLES CORPORATION,
as Transferor
By: /s/ Susan P. Storer
Name: Susan P. Storer
Title: President
FDS NATIONAL BANK
By: /s/ Susan R. Robinson
Name: Susan R. Robinson
Title: Treasurer
PNC BANK, NATIONAL ASSOCIATION,
as Agent and as Administrative Agent
By: /s/ John T. Smathers
Name: John T. Smathers
Title: Vice President
EXHIBIT A
FORM OF INVESTMENT LETTER
[Date]
Prime II Receivables Corporation
9111 Duke Boulevard
Mason, Ohio 45040
Attention: President
Re Prime Credit Card Master Trust II Class B
Variable Funding Certificates, Series 1999-1
Ladies and Gentlemen:
This letter (the "Investment Letter") is delivered by
the undersigned (the "Purchaser") pursuant to subsection 8.1(a)
of the Class B Certificate Purchase Agreement dated as of July 6,
1999 (as in effect, the "Certificate Purchase Agreement"), among
the Transferor, FDS National Bank, as Servicer, the Class B
Purchasers parties thereto and PNC Bank, National Association, as
Agent and Administrative Agent. Capitalized terms used herein
without definition shall have the meanings set forth in the
Certificate Purchase Agreement. The Purchaser represents to and
agrees with the Transferor as follows:
(a) The Purchaser is authorized [to enter into the
Certificate Purchase Agreement and to perform its
obligations thereunder and to consummate the transactions
contemplated thereby] [to purchase a participation in
obligations under the Certificate Purchase Agreement].
(b) The Purchaser has such knowledge and experience in
financial and business matters as to be capable of
evaluating the merits and risks of its investment in the
Class B Certificates and is able to bear the economic risk
of such investment. The Purchaser has been afforded the
opportunity to ask such questions as it deems necessary to
make an investment decision, and has received all
information it has requested in connection with making such
investment decision. The Purchaser has, independently and
without reliance upon the Agent, the Administrative Agent or
any other Class B Purchaser, and based on such documents and
information as it has deemed appropriate, made its own
appraisal of and investigation into the business,
operations, property, financial and other condition and
creditworthiness of the Trust, the Transferor and the
Servicer and made its own decision to purchase its interest
in the Class B Certificates, and will, independently and
without reliance upon the Agent, the Administrative Agent or
any other Class B Purchaser, and based on such documents and
information as it shall deem appropriate at the time,
continue to make its own analysis, appraisals and decisions
in taking or not taking action under the Certificate
Purchase Agreement, and to make such investigation as it
deems necessary to inform itself as to the business,
operations, property, financial and other condition and
creditworthiness of the Trust, the Transferor and the
Servicer.
(c) The Purchaser is an "accredited investor", as
defined in Rule 501, promulgated by the Securities and
Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"), or is a
qualified institutional buyer (within the meaning thereof in
Rule 144A under the Securities Act). The Purchaser
understands that the offering and sale of the Class B
Certificates has not been and will not be registered under
the Securities Act and has not and will not be registered or
qualified under any applicable "Blue Sky" law, and that the
offering and sale of the Class B Certificate has not been
reviewed by, passed on or submitted to any federal or state
agency or commission, securities exchange or other
regulatory body.
(d) The Purchaser is acquiring an interest in Class B
Certificates without a view to any distribution, resale or
other transfer thereof except as contemplated in the
following sentence. The Purchaser will not resell or
otherwise transfer any interest or participation in the
Class B Certificates, except in accordance with Sections 8.1
of the Certificate Purchase Agreement and (i) in a
transaction exempt from the registration requirements of the
Securities Act of 1933, as amended, and applicable state
securities or "blue sky" laws; (ii) to the Transferor or any
affiliate of the Transferor; or (iii) to a person who the
Purchaser reasonably believes is a qualified institutional
buyer (within the meaning thereof in Rule 144A under the
Securities Act) that is aware that the resale or other
transfer is being made in reliance upon Rule 144A. In
connection therewith, the Purchaser hereby agrees that it
will not resell or otherwise transfer the Class B
Certificates or any interest therein unless the purchaser
thereof provides to the addressee hereof a letter
substantially in the form hereof.
[(e) The Purchaser hereby certifies to the Transferor,
the Servicer and the Trustee that it has neither acquired
nor will it sell, trade or transfer any interest in a Class
B Certificate or cause an interest in a Class B Certificate
to be marketed on or through an "established securities
market" within the meaning of Section 7704(b)(1) of the
Internal Revenue Code of 1986, as amended (the "Code") and
any proposed, temporary or final treasury regulation
thereunder, including, without limitation, an over-the-
counter-market or an interdealer quotation system that
regularly disseminates firm buy or sell quotations. In
addition, the Purchaser hereby certifies that it is not and,
for so long as it holds any interest in a Class B
Certificate will not become a partnership, Subchapter S
corporation or grantor trust for U.S. federal income tax
purposes. The Purchaser acknowledges that the opinion of
counsel to the effect that the Trust will not be treated as
a publicly traded partnership taxable as a corporation is
dependent in part on the accuracy of the certifications
described in this paragraph.][To be included only if
required by Section 6.18 of the Pooling and Servicing
Agreement.]
[(e)][(f)] This Investment Letter has been duly
executed and delivered and constitutes the legal, valid and
binding obligation of the Purchaser, enforceable against the
Purchaser in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable
principles affecting the enforcement of creditors' rights
generally and general principles of equity.
[(f)][(g)] The Purchaser understands that the Class
B Certificates will bear a legend to substantially the
following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE
SECURITIES ACT. NO RESALE OR OTHER TRANSFER OF THIS
CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, (B) IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES OR "BLUE SKY" LAWS. NEITHER THE TRANSFEROR
NOR THE TRUSTEE IS OBLIGATED TO REGISTER THE
CERTIFICATES UNDER THE SECURITIES ACT OR ANY OTHER
SECURITIES OR "BLUE SKY" LAW.
EACH HOLDER OF THIS CERTIFICATE OR AN INTEREST
THEREIN, BY ACCEPTING AND HOLDING THIS CERTIFICATE, IS
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT
(I) AN EMPLOYEE BENEFIT PLAN AS DEFINED IN SECTION 3(3)
OF ERISA) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I
OF ERISA, (II) A PLAN DESCRIBED IN SECTION 4975(E)(l)
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
(III) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN
ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY.
Very truly yours,
[NAME OF PURCHASER]
By:___________________________
Name:
Title:
EXHIBIT B
FORM OF JOINDER SUPPLEMENT
THIS JOINDER SUPPLEMENT ("Supplement"), dated as of the
date set forth in Item 1 of Schedule I hereto, among Prime II
Receivables Corporation (the "Transferor"), the Class B Purchaser
set forth in Item 2 of Schedule I hereto (the "Additional Class B
Purchaser"), and PNC Bank, National Association, as Agent for the
Class B Purchasers under, and as defined in, the Certificate
Purchase Agreement described below (in such capacity, the
"Agent").
W I T N E S S E T H:
WHEREAS, this Supplement is being executed and
delivered in accordance with subsection 2.2(d) of the Class B
Certificate Purchase Agreement, dated as of July 6, 1999, among
the Transferor, FDS National Bank, as Servicer, the Class B
Purchasers parties thereto, the Agent and PNC Bank, National
Association, as Administrative Agent (as from time to time
amended, supplemented or otherwise modified in accordance with
the terms thereof, the "Certificate Purchase Agreement"; unless
otherwise defined herein, terms defined in the Certificate
Purchase Agreement are used herein as therein defined); and
WHEREAS, the Additional Class B Purchaser (if it is not
already a Class B Purchaser party to the Certificate Purchase
Agreement) wishes to become a Class B Purchaser party to the
Certificate Purchase Agreement;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
(a) Upon receipt by the Agent of five counterparts of
this Supplement, to each of which is attached a fully completed
Schedule I and Schedule II, each of which has been executed by
the Additional Class B Purchaser, the Transferor and the Agent,
the Agent will transmit to the Servicer, the Transferor, the
Trustee, the Administrative Agent and the Additional Class B
Purchaser a Joinder Effective Notice, substantially in the form
of Schedule III to this Supplement (a "Joinder Effective
Notice"). Such Joinder Effective Notice shall be executed by the
Agent and shall set forth, inter alia, the date on which the
transfer effected by this Supplement shall become effective (the
"Joinder Effective Date"). From and after the Joinder Effective
Date, the Additional Class B Purchaser shall be a Class B
Purchaser party to the Certificate Purchase Agreement for all
purposes thereof and shall be a Noncommitted Class B Purchaser
or Committed Class B Purchaser, as the case may be, as set forth
in Schedule II hereto, having an initial Noncommitted Purchaser
Percentage or Commited Purchaser Percentage, as applicable, and a
Commitment, if applicable, as set forth in such Schedule II.
(b) Concurrently with the execution and delivery
hereof, the Additional Class B Purchaser will deliver to the
Transferor and the Trustee an executed Investment Letter in the
form of Exhibit A to the Certificate Purchase Agreement.
(c) Each of the parties to this Supplement agrees and
acknowledges that at any time and from time to time upon the
written request of any other party, it will execute and deliver
such further documents and do such further acts and things as
such other party may reasonably request in order to effect the
purposes of this Supplement.
(d) By executing and delivering this Supplement, the
Additional Class B Purchaser confirms to and agrees with the
Agent, the Administrative Agent and the Class B Purchasers as
follows: (i) neither the Agent, the Administrative Agent nor any
other Class B Purchaser makes any representation or warranty or
assumes any responsibility with respect to any statements,
warranties or representations made in or in connection with the
Certificate Purchase Agreement (other then representations or
warranties made by such respective parties) or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of the Certificate Purchase Agreement or any other
instrument or document furnished pursuant thereto, or with
respect to the Trust, the financial condition of the Servicer,
the Transferor or the Trustee, or the performance or observance
by the Servicer, the Transferor or the Trustee of any of their
respective obligations under the Certificate Purchase Agreement
or the Pooling and Servicing Agreement or any other instrument or
document furnished pursuant hereto; (ii) the Additional Class B
Purchaser confirms that it has received a copy of such documents
and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Supplement; (iii)
the Additional Class B Purchaser will, independently and without
reliance upon the Agent, the Administrative Agent or any other
Class B Purchaser and based on such documents and information as
it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the
Certificate Purchase Agreement; (iv) each Purchasing Class B
Purchaser appoints and authorizes the Agent and the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Certificate Purchase
Agreement and the Supplement as are delegated to the Agent or the
Administrative Agent, as applicable, by the terms thereof,
together with such powers as are reasonably incidental thereto,
all in accordance with Section 7 of the Certificate Purchase
Agreement; and (vi) the Additional Class B Purchaser agrees (for
the benefit of the Agent, the Administrative Agent, the other
Class B Purchasers, the Trustee, the Servicer and the Transferor)
that it will perform in accordance with their terms all of the
obligations which by the terms of the Certificate Purchase
Agreement are required to be performed by it as a Class B
Purchaser which is a Noncommitted Class B Purchaser or Committed
Class B Purchaser, as the case may be, as specified in Schedule
II hereto.
(e) Schedule II hereto sets forth the Commitment and
the Commitment Expiration Date, if applicable, and the initial
Investing Office of the Additional Class B Purchaser, as well as
administrative information with respect to the Additional Class B
Purchaser.
(f) This Supplement shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplement to be executed by their respective duly authorized
officers on Schedule I hereto as of the date set forth in Item 1
of Schedule I hereto.
SCHEDULE I TO
JOINDER SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR JOINDER SUPPLEMENT
Re: Class B Certificate Purchase Agreement, dated as
of July 6, 1999, among Prime II Receivables
Corporation, as Transferor, FDS National Bank, as
Servicer, the Class B Purchasers party thereto and PNC
Bank, National Association, as Agent and as
Administrative Agent.
Item 1: Date of Joinder Supplement:
Item 2: Additional Class B Purchaser:
Item 3: Signatures of Parties to Agreement:
as Additional Class B Purchaser
By:
Name:
Title:
[By:
Name:
Title:]
PRIME II RECEIVABLES CORPORATION,
as Transferor
By:
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
as Agent
By:
Name:
Title:
By:
Name:
Title:
ACCEPTED BY:
PNC BANK, NATIONAL ASSOCIATION, as
Administrative Agent
By:
Name:
Title:
By:
Name:
Title:
FDS NATIONAL BANK, as Servicer
By:
Name:
Title:
SCHEDULE II TO
JOINDER SUPPLEMENT
LIST OF INVESTING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT
[Additional Class B Purchaser]
Noncommitted Class B Purchaser: Yes/No
Initial Noncommitted Purchaser Percentage: _______%
(if applicable)
Committed Class B Purchaser: Yes/No
Initial Committed Purchaser Percentage: _______%
(if applicable)
Commitment: $____________
Commitment Expiration Date: _____________
Address for Notices:
Investing Office:
SCHEDULE III TO
JOINDER SUPPLEMENT
FORM OF
JOINDER EFFECTIVE NOTICE
To: [Name and address of
Transferor, Servicer, Trustee, Administrative
Agent and Additional Class B Purchaser]
The undersigned, as Agent under the Class B Certificate
Purchase Agreement, dated as of July 6, 1999, among Prime II
Receivables Corporation, as Transferor, FDS National Bank, as
Servicer, the Class B Purchasers parties thereto and PNC Bank,
National Association, as Agent for the Class B Purchasers and as
Administrative Agent thereunder, acknowledges receipt of five
executed counterparts of a completed Joinder Supplement. [Note:
attach copies of Schedules I and II from such Agreement.] Terms
defined in such Supplement are used herein as therein defined.
Pursuant to such Supplement, you are advised that the
Joinder Effective Date will be _____________, 199_.
Very truly yours,
PNC BANK, NATIONAL
ASSOCIATION,
as Agent
By:_______________________
Name:
Title:
By:_______________________
Name:
Title:
EXHIBIT C
FORM OF TRANSFER SUPPLEMENT
THIS TRANSFER SUPPLEMENT ("Supplement"), dated as of
the date set forth in Item 1 of Schedule I hereto, among the
Transferor Class B Purchaser set forth in Item 2 of Schedule I
hereto (the "Transferor Class B Purchaser"), the Purchasing Class
B Purchaser set forth in Item 3 of Schedule I hereto (the
"Purchasing Class B Purchaser"), and PNC Bank, National
Association, as Agent for the Class B Purchasers under, and as
defined in, the Certificate Purchase Agreement described below
(in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, this Supplement is being executed and
delivered in accordance with subsection 8.1(e) of the Class B
Certificate Purchase Agreement, dated as of July 6, 1999, among
Prime II Receivables Corporation, as Transferor, FDS National
Bank, as Servicer, the Class B Purchasers parties thereto, the
Agent and PNC Bank, National Association, as Administrative Agent
(as from time to time amended, supplemented or otherwise modified
in accordance with the terms thereof, the "Certificate Purchase
Agreement"; unless otherwise defined herein, terms defined in the
Certificate Purchase Agreement are used herein as therein
defined);
WHEREAS, the Purchasing Class B Purchaser (if it is not
already a Class B Purchaser party to the Certificate Purchase
Agreement) wishes to become a Class B Purchaser party to the
Certificate Purchase Agreement and the Purchasing Class B
Purchaser wishes to acquire and assume from the Transferor Class
B Purchaser, certain of the rights, obligations and commitments
under the Certificate Purchase Agreement; and
WHEREAS, the Transferor Class B Purchaser wishes to
sell and assign to the Purchasing Class B Purchaser, certain of
its rights, obligations and commitments under the Certificate
Purchase Agreement.
NOW, THEREFORE, the parties hereto hereby agree as
follows:
(a) Upon receipt by the Agent of five counterparts of
this Supplement, to each of which is attached a fully completed
Schedule I and Schedule II, each of which has been executed by
the Transferor Class B Purchaser, the Purchasing Class B
Purchaser and the Agent, the Agent will transmit to the Servicer,
the Transferor, the Trustee, the Transferor Class B Purchaser and
the Purchasing Class B Purchaser a Transfer Effective Notice,
substantially in the form of Schedule III to this Supplement (a
"Transfer Effective Notice"). Such Transfer Effective Notice
shall be executed by the Agent and shall set forth, inter alia,
the date on which the transfer effected by this Supplement shall
become effective (the "Transfer Effective Date"). Subject to the
prior written consent, if applicable, of the Transferor and the
Servicer to such transfer in the form of Schedule IV to this
Supplement, from and after the Transfer Effective Date the
Purchasing Class B Purchaser shall be a Class B Purchaser party
to the Certificate Purchase Agreement for all purposes thereof as
a Noncommitted Class B Purchaser or Committed Class B Purchaser,
as specified on Schedule II to this Supplement.
(b) At or before 12:00 Noon, local time of the
Transferor Class B Purchaser, on the Transfer Effective Date, the
Purchasing Class B Purchaser shall pay to the Transferor Class B
Purchaser, in immediately available funds, an amount equal to the
purchase price, as agreed between the Transferor Class B
Purchaser and such Purchasing Class B Purchaser (the "Purchase
Price"), of the portion set forth on Schedule II hereto being
purchased by such Purchasing Class B Purchaser of the outstanding
Class B Invested Amount under the Class B Variable Funding
Certificate owned by the Transferor Class B Purchaser (such
Purchasing Class B Purchaser's "Purchase Percentage") and other
amounts owing to the Transferor Class B Purchaser under the
Certificate Purchase Agreement or otherwise in respect of the
Class B Variable Funding Certificates. Effective upon receipt by
the Transferor Class B Purchaser of the Purchase Price from the
Purchasing Class B Purchaser, the Transferor Class B Purchaser
hereby irrevocably sells, assigns and transfers to the Purchasing
Class B Purchaser, without recourse, representation or warranty,
and the Purchasing Class B Purchaser hereby irrevocably
purchases, takes and assumes from the Transferor Class B
Purchaser, the Purchasing Class B Purchaser's Purchase Percentage
of (i) the presently outstanding Class B Invested Amount under
the Class B Variable Funding Certificates owned by the Transferor
Class B Purchaser and other amounts owing to the Transferor Class
B Purchaser in respect of the Class B Variable Funding
Certificates, together with all instruments, documents and
collateral security pertaining thereto, and (ii) the Purchasing
Purchaser's Purchase Percentage of (A) if the Transferor Class B
Purchaser is a Noncommitted Class B Purchaser, the Noncommitted
Purchaser Percentage of the Transferor Class B Purchaser and the
other rights and duties of the Transferor Class B Purchaser under
the Certificate Purchase Agreement, or (B) if the Transferor
Class B Purchaser is a Committed Class B Purchaser, the Committed
Purchaser Percentage and the Commitment of the Transferor Class B
Purchaser and other rights, duties and obligations of the
Transferor Class B Purchaser under the Certificate Purchase
Agreement. This Supplement is intended by the parties hereto to
effect a purchase by the Purchasing Class B Purchaser and sale by
the Transferor Class B Purchaser of interests in the Class B
Variable Funding Certificates, and it is not to be construed as a
loan or a commitment to make a loan by the Purchasing Class B
Purchaser to the Transferor Class B Purchaser. The Transferor
Class B Purchaser hereby confirms that the amount of the Class B
Invested Amount is $ and its Percentage
Interest thereof is ___%, which equals $
as of , 199_. Upon and after the Transfer Effective
Date (until further modified in accordance with the Certificate
Purchase Agreement), the Noncommitted Purchaser Percentage or
Commited Purchaser Percentage, as applicable of the Transferor
Class B Purchaser and the Purchasing Class B Purchaser and the
Commitment, if any, of the Transferor Class B Purchaser and the
Purchasing Class B Purchaser shall be as set forth in Schedule II
to this Supplement.
(c) The Transferor Class B Purchaser has made
arrangements with the Purchasing Class B Purchaser with respect
to (i) the portion, if any, to be paid, and the date or dates for
payment, by the Transferor Class B Purchaser to the Purchasing
Class B Purchaser of any fees heretofore received by the
Transferor Class B Purchaser pursuant to the Certificate Purchase
Agreement prior to the Transfer Effective Date and (ii) the
portion, if any, to be paid, and the date or dates for payment,
by the Purchasing Class B Purchaser to the Transferor Class B
Purchaser of fees or interest received by the Purchasing Class B
Purchaser pursuant to the Certificate Purchase Agreement or
otherwise in respect of the Class B Variable Funding Certificates
from and after the Transfer Effective Date.
(d) (i) All principal payments that would otherwise be
payable from and after the Transfer Effective Date to or for the
account of the Transferor Class B Purchaser in respect of the
Class B Variable Funding Certificates shall, instead, be payable
to or for the account of the Transferor Class B Purchaser and the
Purchasing Class B Purchaser, as the case may be, in accordance
with their respective interests as reflected in this Supplement.
(ii) All interest, fees and other amounts that
would otherwise accrue for the account of the Transferor Class B
Purchaser from and after the Transfer Effective Date pursuant to
the Certificate Purchase Agreement or in respect of the Class B
Variable Funding Certificates shall, instead, accrue for the
account of, and be payable to or for the account of, the
Transferor Class B Purchaser and the Purchasing Class B
Purchaser, as the case may be, in accordance with their
respective interests as reflected in this Supplement. In the
event that any amount of interest, fees or other amounts accruing
prior to the Transfer Effective Date was included in the Purchase
Price paid by the Purchasing Class B Purchaser, the Transferor
Class B Purchaser and the Purchasing Class B Purchaser will make
appropriate arrangements for payment by the Transferor Class B
Purchaser to the Purchasing Class B Purchaser of such amount upon
receipt thereof from the Agent.
(e) Concurrently with the execution and delivery
hereof, the Purchasing Class B Purchaser will deliver to the
Transferor and the Trustee an executed Investment Letter in the
form of Exhibit A to the Certificate Purchase Agreement.
(f) Each of the parties to this Supplement agrees and
acknowledges that (i) at any time and from time to time upon the
written request of any other party, it will execute and deliver
such further documents and do such further acts and things as
such other party may reasonably request in order to effect the
purposes of this Supplement, and (ii) the Agent shall apply each
payment made to it under the Certificate Purchase Agreement,
whether in its individual capacity or as Agent, in accordance
with the provisions of the Certificate Purchase Agreement, as
appropriate.
(g) By executing and delivering this Supplement, the
Transferor Class B Purchaser and the Purchasing Class B Purchaser
confirm to and agree with each other, the Administrative Agent
and the Agent and the Class B Purchasers as follows: (i) other
than the representation and warranty that it is the legal and
beneficial owner of the interest being assigned hereby free and
clear of any adverse claim, the Transferor Class B Purchaser
makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations
made in or in connection with the Certificate Purchase Agreement
or the Pooling and Servicing Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of the Certificate Purchase Agreement or any other
instrument or document furnished pursuant thereto; (ii) the
Transferor Class B Purchaser makes no representation or warranty
and assumes no responsibility with respect to the Trust, the
financial condition of the Servicer, the Transferor or the
Trustee, or the performance or observance by the Servicer, the
Transferor or the Trustee of any of their respective obligations
under the Certificate Purchase Agreement, the Pooling and
Servicing Agreement or any other instrument or document furnished
pursuant hereto; (iii) each Purchasing Class B Purchaser confirms
that it has received a copy of such documents and information as
it has deemed appropriate to make its own credit analysis and
decision to enter into this Supplement; (iv) each Purchasing
Class B Purchaser will, independently and without reliance upon
the Agent, the Transferor Class B Purchaser or any other Class B
Purchaser and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Certificate
Purchase Agreement or the Pooling and Servicing Agreement; (v)
each Purchasing Class B Purchaser appoints and authorizes the
Agent and the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under the Certificate
Purchase Agreement and the Pooling and Servicing Agreement as are
delegated to the Agent or the Administrative Agent, as the case
may be, by the terms thereof, together with such powers as are
reasonably incidental thereto, all in accordance with Section 7
of the Certificate Purchase Agreement; and (vi) each Purchasing
Class B Purchaser agrees (for the benefit of the Transferor Class
B Purchaser, the Agent, the Administrative Agent, the Class B
Purchasers, the Trustee, the Servicer and the Transferor) that it
will perform in accordance with their terms all of the
obligations which by the terms of the Certificate Purchase
Agreement are required to be performed by it as a Class B
Purchaser.
(h) Schedule II hereto sets forth the revised
Noncommitted Purchaser Percentage or the revised Committed
Purchaser Percentage and Commitment of the Transferor Class B
Purchaser, as applicable, the Noncommitted Purchaser Percentage
or the Committed Purchaser Percentage, Commitment and Commitment
Expiration Date of the Purchasing Class B Purchaser, as
applicable, and the initial Investing Office of the Purchasing
Class B Purchaser, as well as administrative information with
respect to the Purchasing Class B Purchaser.
(i) This Supplement shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplement to be executed by their respective duly authorized
officers on Schedule I hereto as of the date set forth in Item 1
of Schedule I hereto.
SCHEDULE I TO
TRANSFER SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Re: Class B Certificate Purchase Agreement, dated as
of July 6, 1999, among Prime II Receivables
Corporation, as Transferor, FDS National Bank, as
Servicer, the Class B Purchasers party thereto and PNC
Bank, National Association, as Agent and as
Administrative Agent.
Item 1: Date of Transfer Supplement:
Item 2: Transferor Class B Purchaser:
Item 3: Purchasing Class B Purchaser:
Item 4: Signatures of Parties to Agreement:
as Transferor Class B Purchaser
By:
Name:
Title:
By:
Name:
Title:
as Purchasing Class B Purchaser
By:
Name:
Title:
By:
Name:
Title:
ACCEPTED BY:
PNC BANK, NATIONAL ASSOCIATION, as Agent
By:
Name:
Title:
By:
Name:
Title:
SCHEDULE II TO
TRANSFER SUPPLEMENT
LIST OF INVESTING OFFICES, ADDRESSES
FOR NOTICES, ASSIGNED INTEREST,
PURCHASE PERCENTAGE AND PURCHASE PRICE
[Transferor Class B Purchaser]
A. Noncommitted Class B Purchaser: Yes/No
If applicable:
Noncommitted Purchaser Percentage:
Transferor Class B Purchaser
Noncommitted Purchaser Percentage
Prior to Sale: _____%
Noncommitted Purchaser Percentage Sold: _____%
Noncommitted Purchaser Percentage Retained: _____%
B. Committed Class B Purchaser: Yes/No
If applicable:
Committed Purchaser Percentage:
Transferor Class B Purchaser
Committed Purchaser Percentage
Prior to Sale: _____%
Committed Purchaser Percentage Sold: _____%
Committed Purchaser Percentage Retained: _____%
Commitment:
Transferor Class B Purchaser Commitment
Prior to Sale: $________
Commitment Sold: $________
Commitment Retained: $________
C. Class B Invested Amount:
Transferor Class B Purchaser
Class B Invested Amount Prior to Sale: $________
Class B Invested Amount Sold: $________
Class B Invested Amount Retained: $________
D. Purchase Percentage: _____%
[Purchasing Class B Purchaser]
A. Noncommitted Class B Purchaser: Yes/No
If applicable:
Initial Noncommitted Purchaser Percentage: _____%
B. Committed Class B Purchaser: Yes/No
If applicable:
Committed Purchaser Percentage: _____%
Commitment: $________
Commitment Expiration Date: ____________
C. Class B Invested Amount Owned Immediately
After Sale: $________
Address for Notices:
Investing Office:
SCHEDULE III TO
TRANSFER SUPPLEMENT
Form of
Transfer Effective Notice
To: [Name and address of
Transferor, Servicer, Trustee, the Transferor Class B
Purchaser and the Purchasing Class B Purchaser]
The undersigned, as Agent under the Class B Certificate
Purchase Agreement, dated as of July 6, 1999, among Prime II
Receivables Corporation, as Transferor, FDS National Bank, as
Servicer, the Class B Purchasers parties thereto and PNC Bank,
National Association, as Agent for the Class B Purchasers and as
Administrative Agent thereunder, acknowledges receipt of five
executed counterparts of a completed Transfer Supplement. [Note:
attach copies of Schedules I and II from such Agreement.] Terms
defined in such Supplement are used herein as therein defined.
Pursuant to such Supplement, you are advised that the
Transfer Effective Date will be _____________, 199_.
Very truly yours,
PNC BANK, NATIONAL
ASSOCIATION,
as Agent
By:_______________________
Name:
Title:
By:_______________________
Name:
Title:
SCHEDULE IV TO
TRANSFER SUPPLEMENT
Form of
Consent of Transferor
To: The Chase Manhattan Bank, as Trustee
PNC Bank, National Association, as Agent
The undersigned hereby consents to the transfer, as of the
Transfer Effective Date, of a [Noncommitted Purchaser
Percentage/Committed Purchaser Percentage] equal to ____%
[representing a Commitment in the amount of $__________] and a
Class B Invested Amount under the Prime Credit Card Master Trust
II Class B Variable Funding Certificates, Series 1999-1, in the
amount of $_________, by _______________ to _______________,
pursuant to the Class B Certificate Purchase Agreement, dated as
of July 6, 1999, among Prime II Receivables Corporation, FDS
National Bank, as Servicer, the Class B Purchasers parties
thereto and PNC Bank, National Association, as Agent and as
Administrative Agent.
Very truly yours,
PRIME II RECEIVABLES
CORPORATION
By:_______________________
Name:
Title:
FDS NATIONAL BANK,
as Servicer
By:_______________________
Name:
Title:
Dated: _________________
cc: Purchasing Class B Purchaser
EXHIBIT D
PRIME II RECEIVABLES CORPORATION
FORM OF NOTICE OF FINANCING
PNC XXXXXXX
Via Facsimile: XXXXXX
Attn: XXXXXX XXXXXXXXX
To be executed on: 02-Jul-99
Increase/
(Decrease)
Next Business Day 1999-1A 0.00
1999-1B 0.00
_______________________
Ph: (513) 573-2047
Fx: (513) 573-2039