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Exhibit 4.7
EXECUTION COPY
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ASSOCIATES CREDIT CARD MASTER NOTE TRUST
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AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
between
ASSOCIATES NATIONAL BANK (DELAWARE)
and
ASSOCIATES CREDIT CARD SERVICES, INC.
Dated as of April 1, 2000
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01. Definitions................................................................................1
Section 1.02. Other Definitional Provisions..............................................................5
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase...................................................................................6
Section 2.02. Addition of Aggregate Addition Accounts....................................................7
Section 2.03. Addition of New Accounts...................................................................8
Section 2.04. Representations and Warranties.............................................................9
Section 2.05. Delivery of Documents......................................................................9
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price............................................................................10
Section 3.02. Adjustments to Purchase Price.............................................................10
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of ANB Relating to ANB.....................................12
Section 4.02. Representations and Warranties of ANB Relating to the Agreement and the Receivables.......13
Section 4.03. Representations and Warranties of ACCS....................................................14
ARTICLE V
COVENANTS
Section 5.01. Covenants of ANB..........................................................................16
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables....................................................18
Section 6.02. Reassignment..............................................................................18
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to ACCS's Obligations Regarding Initial Receivables............................20
Section 7.02. Conditions Precedent to ANB's Obligations.................................................20
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.01. Term......................................................................................22
Section 8.02. Purchase Termination......................................................................22
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment.................................................................................23
Section 9.02. Governing Law.............................................................................23
Section 9.03. Notices...................................................................................23
Section 9.04. Severability of Provisions................................................................23
Section 9.05. Assignment................................................................................24
Section 9.06. Acknowledgement and Agreement of ANB......................................................24
Section 9.07. Further Assurances........................................................................24
Section 9.08. No Waiver; Cumulative Remedies............................................................24
Section 9.09. Counterparts..............................................................................25
Section 9.10. Binding; Third-Party Beneficiaries........................................................25
Section 9.11. Merger and Integration....................................................................25
Section 9.12. Headings..................................................................................25
Section 9.13. Schedules and Exhibits....................................................................25
Section 9.14. Survival of Representations and Warranties................................................25
Section 9.15. Nonpetition Covenant......................................................................25
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EXHIBITS
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EXHIBIT A FORM OF SUPPLEMENTAL CONVEYANCE
Schedule 1 LIST OF ACCOUNTS
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AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as of April 1,
2000, by and between ASSOCIATES CREDIT CARD SERVICES, INC., a Delaware
corporation ("ACCS"), and ASSOCIATES NATIONAL BANK (DELAWARE), a national
banking association ("ANB").
WITNESSETH:
WHEREAS, ACCS desires to purchase, from time to time, certain Receivables
(hereinafter defined) arising under certain credit card accounts of ANB;
WHEREAS, ACCS may in the future desire to purchase, from time to time,
certain Receivables sold to ANB by another Account Owner (hereinafter defined)
and arising under certain credit card accounts of such Account Owner;
WHEREAS, ANB desires to sell and assign, from time to time, certain
Receivables to ACCS upon the terms and conditions hereinafter set forth;
WHEREAS, it is contemplated that the Receivables purchased hereunder will
be transferred by ACCS to ACCR (hereinafter defined) for transfer by ACCR to the
Trust (hereinafter defined) in connection with the issuance of certain
Securities (hereinafter defined); and
WHEREAS, ANB agrees that all representations, warranties, covenants and
agreements made by ANB herein with respect to the Accounts (hereinafter defined)
and Receivables shall also be for the benefit of ACCR, the Owner Trustee
(hereinafter defined), the Indenture Trustee (hereinafter defined) and all
beneficiaries of the Trust, including the holders of the Securities.
NOW, THEREFORE, it is hereby agreed by and between ACCS and ANB as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. All capitalized terms used herein or in any
certificate, document, or Conveyance Paper (hereinafter defined) made or
delivered pursuant hereto, and not defined herein or therein, shall have the
meaning ascribed thereto in the Indenture, the Transfer and Servicing Agreement
or the Trust Agreement (hereinafter defined); in addition, the following words
and phrases shall have the following meanings:
"Account" shall mean (a) each MasterCard(1)/ and VISA(1)/ account
established pursuant to a Credit Card Agreement between ANB or any other Account
Owner and any Person, which account is identified by account number and by the
receivables balance as of the Initial Cut-Off Date or the applicable Additional
Cut-Off Date, as the case may be, in the
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(1)/ MasterCard and VISA are registered trademarks of MasterCard International
Incorporated and of VISA USA, Inc., respectively.
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computer file or microfiche list delivered to ACCS by ANB on the Closing Date or
any applicable Addition Date, as the case may be, (b) each Additional Account
(but only from and after the Addition Date with respect thereto), (c) each
Related Account, and (d) each account into which an Account shall be transferred
(a "TRANSFERRED ACCOUNT"); provided that (i) such transfer was made in
accordance with the Credit Card Guidelines and (ii) such account can be traced
or identified as an account into which an Account has been transferred, but
shall exclude (e) any Account that (x) after the Removal Date, the newly
generated Receivables in which shall not be assigned to ACCS hereunder, (y) the
right, title and interest of ACCS in the Receivables in which are reassigned to
ANB pursuant to Section 6.01 or (z) the right, title and interest of the Trust
in the Receivables in which are assigned and transferred to the Servicer
pursuant to Section 3.03 of the Transfer and Servicing Agreement.
"Account Owner" shall mean ANB or any other entity which is the issuer of
the credit card relating to an Account pursuant to a Credit Card Agreement.
"ACCR" shall mean Associates Credit Card Receivables Corp., a Delaware
corporation, and its successors and permitted assigns.
"ACCS" shall mean Associates Credit Card Services, Inc., a Delaware
corporation, and its successors and permitted assigns.
"ACCS Purchase Agreement" shall mean the receivables purchase agreement,
dated April 1, 2000, between ACCS and ACCR, as the same may be amended,
supplemented or otherwise modified from time to time.
"Additional Account" shall mean each New Account and each Aggregate
Addition Account.
"Additional Cut-Off Date" shall mean (i) with respect to Aggregate Addition
Accounts, the date specified as such in the notice delivered with respect
thereto pursuant to Section 2.02, and (ii) with respect to New Accounts, the
later of the dates on which such New Accounts are originated or designated
pursuant to Section 2.03.
"Addition Date" shall mean (a) with respect to Aggregate Addition Accounts,
the date from and after which such Aggregate Addition Accounts are to be
included as Accounts pursuant to Section 2.02 and (b) with respect to New
Accounts, the first Distribution Date following the calendar month in which the
later of the dates on which such New Accounts are originated or designated
pursuant to Section 2.03 occurs.
"Addition Notice Date" shall have the meaning specified in Section 2.02 of
this Agreement.
"Aggregate Addition Account" shall mean each Eligible Account that is
designated pursuant to Section 2.02 to be included as an Account and is
identified in the computer file or microfiche list delivered to ACCS by ANB
pursuant to Sections 2.01 and 2.05.
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"Agreement" shall mean this Amended and Restated Receivables Purchase
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.
"ANB" shall mean Associates National Bank (Delaware), a national banking
association, and its successors and permitted assigns.
"Cash Purchase Price" shall have the meaning set forth in subsection
3.01(c).
"Closing Date" shall mean April 7, 2000.
"Conveyance" shall have the meaning specified in subsection 2.01(a).
"Conveyance Papers" shall have the meaning specified in subsection 4.01(c).
"Credit Adjustment" shall have the meaning specified in Section 3.02.
"Debtor Relief Laws" shall mean (i) the Bankruptcy Code of the United
States of America and (ii) all other applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization,
suspension of payments, readjustment of debt, marshalling of assets or similar
debtor relief laws of the United States, any state or any foreign country from
time to time in effect affecting the rights of creditors generally.
"Eligible Receivable" shall have the meaning set forth in the Transfer and
Servicing Agreement, except that "ANB" shall be substituted for each occurrence
of "Transferor," "ACCS" shall be substituted for each occurrence of "Trust," and
all references to the Notes shall be ignored.
"Finance Charge Receivables" shall mean all Receivables in the Accounts
which would be treated as "Finance Charge Receivables" in accordance with the
definition for such term in the Transfer and Servicing Agreement.
"Indenture" shall mean the Amended and Restated Master Indenture between
the Trust and The Bank of New York, as Indenture Trustee, dated as of April 1,
2000, as the same may be amended, supplemented or otherwise modified from time
to time, including as supplemented by Indenture Supplements applicable to any
Series that may be issued from time to time.
"Indenture Supplement" shall mean the indenture supplement pursuant to
which a Series is issued.
"Indenture Trustee" shall mean The Bank of New York, in its capacity as
indenture trustee, or any successor indenture trustee.
"Initial Account" shall mean any Account designated as an "Account"
hereunder on the Closing Date.
"Initial Cut-Off Date" shall mean the close of business on April 5, 2000.
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"Insolvency Event" shall have the meaning specified in Section 8.02.
"Interchange" shall mean interchange fees payable to ANB or any other
Account Owner, in its capacity as credit card issuer, through VISA or MasterCard
in connection with cardholder charges for goods or services with respect to the
Accounts, as calculated pursuant to the related Indenture Supplement for any
Series.
"New Account" shall mean each Eligible Account that is designated pursuant
to Section 2.03 to be included as an Account and is identified in the computer
file or microfiche list delivered to ACCS by ANB pursuant to Sections 2.01 and
2.05.
"New Principal Receivables" shall have the meaning set forth in Section
3.01.
"Obligor" shall mean, with respect to each Account, each Person that would
be treated as an "Obligor" in accordance with the definition for such term in
the Transfer and Servicing Agreement.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware banking
corporation, the institution executing the Trust Agreement as and acting in the
capacity of Owner Trustee thereunder, or its successor in interest, or any
successor trustee appointed as provided in the Trust Agreement.
"Participation Agreement" shall mean the Associates Credit Card Master Note
Trust Participation Agreement, dated as of April 1, 2000, between ACCR, as
Transferor, and ACCS, as Participant, as the same may be amended, supplemented
or otherwise modified from time to time.
"Principal Receivables" shall mean all Receivables in the Accounts that
would be treated as "Principal Receivables" in accordance with the definition
for such term in the Transfer and Servicing Agreement.
"Purchase Price" shall have the meaning set forth in Section 3.01.
"Purchased Assets" shall have the meaning set forth in Section 2.01.
"Receivables" shall mean all amounts shown on ANB's or another Account
Owner's records as amounts payable by Obligors on any Account from time to time,
including amounts payable for Principal Receivables and Finance Charge
Receivables. Receivables that become Defaulted Receivables will cease to be
included as Receivables as of the day on which they become Defaulted
Receivables.
"Removed Account" shall mean an Account hereunder that is a "Removed
Account" (as such term is defined in the Transfer and Servicing Agreement) that
is designated for removal pursuant to Section 2.10 of the Transfer and Servicing
Agreement.
"Securities" shall mean any one of the Notes (as such term is defined in
the Indenture), the Transferor Certificates, the Supplemental Certificates or
the Ownership Interest Certificate (as such term is defined in the Trust
Agreement).
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"Supplemental Conveyance" shall have the meaning set forth in Section 2.05.
"Transfer and Servicing Agreement" shall mean the Transfer and Servicing
Agreement, dated as of April 1, 2000, among ANB, as Servicer, ACCR, as
Transferor, and the Trust, as the same may be amended, supplemented or otherwise
modified from time to time.
"Trust" shall mean the trust created by the Trust Agreement.
"Trust Agreement" shall mean the Associates Credit Card Master Note Trust
Trust Agreement, dated as of April 1, 2000, between ACCR, as Transferor, and
Wilmington Trust Company, as Owner Trustee, as the same may be amended,
supplemented or otherwise modified from time to time.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate, other document, or Conveyance Paper made or
delivered pursuant hereto unless otherwise defined therein.
(b) The words "HEREOF," "HEREIN," "HEREUNDER" and words of similar import
when used in this Agreement or any Conveyance Paper shall refer to this
Agreement as a whole and not to any particular provision of this Agreement; and
Section, subsection, Schedule and Exhibit references contained in this Agreement
are references to Sections, subsections, Schedules and Exhibits in or to this
Agreement unless otherwise specified.
(c) All determinations of the principal or finance charge balance of
Receivables, and of any collections thereof, shall be made in accordance with
the Transfer and Servicing Agreement and the Indenture.
(d) All capitalized terms used herein and not otherwise defined herein have
the meanings ascribed to them in the Indenture, the Transfer and Servicing
Agreement or the Trust Agreement, as applicable.
[END OF ARTICLE I]
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ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase.
(a) By execution of this Agreement, ANB does hereby sell, transfer, assign,
set over and otherwise convey to ACCS (collectively, the "CONVEYANCE"), without
recourse except as provided herein, all its right, title and interest in, to and
under the Receivables existing at the close of business on the Initial Cut-Off
Date, in the case of Receivables arising in the Initial Accounts, and on each
Additional Cut-Off Date, in the case of Receivables arising in the Additional
Accounts, and in each case thereafter created from time to time until the
termination of this Agreement pursuant to Article VIII hereof, all Interchange
and Recoveries with respect to such Receivables, all monies due or to become due
and all amounts received or receivable with respect thereto, and all proceeds
(including, without limitation, "proceeds" as defined in the UCC) thereof
(collectively, the "PURCHASED ASSETS").
(b) In connection with such Conveyance, ANB agrees (i) to record and file,
at its own expense, any financing statements (and continuation statements with
respect to such financing statements when applicable) with respect to the
Receivables existing as of the Initial Cut-Off Date and thereafter created in
the Initial Accounts, and existing as of the Additional Cut-Off Date and
thereafter created in the Additional Accounts, meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect, and maintain perfection of, the Conveyance of such Purchased Assets
from ANB to ACCS, (ii) that such financing statements shall name ANB, as seller,
and ACCS, as purchaser, of the Receivables and (iii) to deliver a file-stamped
copy of such financing statements or other evidence of such filings to ACCS as
soon as is practicable after filing.
(c) In connection with such Conveyance, ANB further agrees that it will, at
its own expense, (i) on or prior to (x) the Closing Date, in the case of Initial
Accounts, (y) the applicable Addition Date, in the case of Additional Accounts,
and (z) the applicable Removal Date, in the case of Removed Accounts, indicate
in its computer files that, in the case of the Initial Accounts or the
Additional Accounts, Receivables created in connection with such Accounts have
been conveyed to ACCS in accordance with this Agreement by including (or that,
in the case of Removed Accounts, newly originated Receivables in such Accounts
have been reassigned to ANB in accordance with this Agreement by deleting) in
such computer files the code "02" in the field "CHD-PORTFOLIO-NO" which
identifies each such Account and (ii) on or prior to (w) the Closing Date, in
the case of the Initial Accounts, (x) the applicable Addition Date, in the case
of designation of Aggregate Addition Accounts, (y) the applicable Addition Date,
in the case of New Accounts, and (z) the applicable Removal Date, in the case of
Removed Accounts, to deliver to ACCS a computer file or microfiche list
containing a true and complete list of all such Accounts specifying for each
such Account, as of the Initial Cut-Off Date, in the case of the Initial
Accounts, the applicable Additional Cut-off Date, in the case of Additional
Accounts, and the applicable Removal Date, in the case of Removed Accounts, (A)
its account number, (B) the aggregate amount outstanding in such Account and (C)
the aggregate amount of Principal Receivables in such Account. Each such
computer file or microfiche list, as supplemented from time to time to reflect
Additional Accounts or Removed Accounts, shall be
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marked as Schedule 1 to this Agreement, shall be delivered to ACCS, and is
hereby incorporated into and made a part of this Agreement. ACCS further agrees
not to alter the code referenced in clause (i) of this paragraph with respect to
any Account during the term of this Agreement unless and until such Account
becomes a Removed Account.
(d) The parties hereto intend that the conveyance of ANB's right, title and
interest in and to the Purchased Assets shall constitute an absolute sale,
conveying good title free and clear of any liens, claims, encumbrances or rights
of others from ANB to ACCS. It is the intention of the parties hereto that the
arrangements with respect to the Purchased Assets shall constitute a purchase
and sale of such Purchased Assets and not a loan. In the event, however, that it
were to be determined that the transactions evidenced hereby constitute a loan
and not a purchase and sale, it is the intention of the parties hereto that this
Agreement shall constitute a security agreement under applicable law, and that
ANB shall be deemed to have granted and does hereby grant to ACCS a first
priority perfected security interest, in all of ANB's right, title and interest,
whether owned on the Initial Cut-Off Date or thereafter acquired, in, to and
under the Purchased Assets, and all money, accounts, general intangibles,
chattel paper, instruments, documents, goods, investment property, deposit
accounts, certificates of deposit, letters of credit, and advices of credit
consisting of, arising from or related to the Purchased Assets, and all proceeds
(including without limitation, "proceeds" as defined in the UCC) thereof to
secure the obligations of ANB hereunder.
(e) To the extent that ANB retains any interest in the Purchased Assets,
ANB hereby grants to the Indenture Trustee for the benefit of the Noteholders a
security interest in all of ANB's right, title and interest, whether now owned
or hereafter acquired, in, to and under the Purchased Assets, and all money,
accounts, general intangibles, chattel paper, instruments, documents, goods,
investment property, deposit accounts, certificates of deposit, letters of
credit and advices of credit consisting of, arising from or related to the
Purchased Assets and all proceeds thereof (collectively, the "INDENTURE
COLLATERAL"), to secure the performance of all of the obligations of ANB
hereunder, under the Indenture and under the Transaction Documents. With respect
to the Indenture Collateral, the Indenture Trustee shall have all of the rights
that it has under the Indenture and the Transaction Documents. The Indenture
Trustee shall have all of the rights of a secured creditor under the UCC in New
York and the UCC in Delaware.
Section 2.02. Addition of Aggregate Addition Accounts.
(a) If, from time to time, ACCS becomes obligated to designate Aggregate
Addition Accounts (as such term is defined in the Transfer and Servicing
Agreement) pursuant to subsection 2.02(a) of the ACCS Purchase Agreement, then
ACCS may, at its option, give ANB written notice thereof on or before the eighth
Business Day (the "ADDITION NOTICE DATE") prior to the Addition Date therefor,
and upon receipt of such notice ANB shall on or before the Addition Date,
designate sufficient Eligible Accounts to be included as Additional Accounts so
that after the inclusion thereof ACCS will be in compliance with the
requirements of said subsection 2.02(a). Additionally, subject to the Transfer
and Servicing Agreement and subsection 2.02(b), from time to time Eligible
Accounts may be designated to be included as Aggregate Addition Accounts, upon
the mutual agreement of ACCS and ANB. In either event, ANB shall have sole
responsibility for selecting the Aggregate Addition Accounts.
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(b) On the Addition Date with respect to any designation of Aggregate
Addition Accounts, ACCS shall purchase ANB's right, title and interest in, to
and under the Receivables in such Aggregate Addition Accounts (and such
Aggregate Addition Accounts shall be deemed to be Accounts for purposes of this
Agreement) and the related Purchased Assets, subject to the satisfaction of the
following conditions on such Addition Date:
(i) all Aggregate Addition Accounts shall be Eligible Accounts;
(ii) ANB shall have delivered to ACCS copies of UCC-1 financing statements
covering such Aggregate Addition Accounts, if necessary to perfect ACCS's
interest in the Receivables arising therein;
(iii) to the extent required of ACCS by subsection 2.02(b)(iii) of the ACCS
Purchase Agreement, ANB shall have deposited in the Collection Account all
Collections with respect to such Aggregate Addition Accounts since the
Additional Cut-Off Date;
(iv) as of each of the Additional Cut-Off Date and the Addition Date, no
Insolvency Event with respect to ANB or other Account Owner, as applicable,
shall have occurred nor shall the transfer of the Receivables arising in the
Aggregate Addition Accounts to ACCS have been made in contemplation of the
occurrence thereof;
(v) solely with respect to Aggregate Addition Accounts designated pursuant
to the second sentence of subsection 2.02(a), the Rating Agency Condition shall
have been satisfied;
(vi) ANB shall have delivered to ACCS an Officer's Certificate, dated the
Addition Date, confirming, to the extent applicable, the items set forth in
clauses (i) through (v) above; and
(vii) the transfer of the Receivables arising in the Aggregate Addition
Accounts to ACCS will not result in an Adverse Effect and ANB shall have
delivered to ACCS an Officer's Certificate, dated the Addition Date, stating
that ANB reasonably believes that the transfer of the Receivables arising in the
Aggregate Addition Accounts to ACCS will not have an Adverse Effect.
Section 2.03. Addition of New Accounts.
(a) Upon the mutual agreement of ACCS and ANB, subject to compliance by ANB
with subsection 2.03(b), ANB may designate newly originated Eligible Accounts to
be included as New Accounts. Upon such designation, such New Accounts shall be
deemed to be Accounts hereunder. ANB shall cooperate with ACCS to enable ACCS to
comply with the requirements of Section 2.03(a) of the ACCS Purchase Agreement
and shall cooperate with ACCS to enable it to perform with respect to the
Receivables in such New Accounts all actions specified in subsections 2.03(a) of
the ACCS Purchase Agreement.
(b) On the Addition Date with respect to any New Accounts, ACCS shall
purchase ANB's right, title and interest in, to and under the Receivables in
such New Accounts (and such New Accounts shall be deemed to be Accounts for
purposes of this Agreement) as of
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the close of business on the applicable Addition Date and the related Purchased
Assets, subject to the satisfaction of the following conditions on such Addition
Date:
(i) all New Accounts shall be Eligible Accounts;
(ii) ANB shall have delivered to ACCS copies of UCC-1 financing statements
covering such New Accounts, if necessary to perfect ACCS's interest in the
Receivables arising therein;
(iii) as of each of the Additional Cut-Off Date and the Addition Date, no
Insolvency Event with respect to ANB or other Account Owner, as applicable,
shall have occurred nor shall the transfer of the Receivables arising in the New
Accounts to ACCS have been made in contemplation of the occurrence thereof;
(iv) the transfer of the Receivables arising in the New Accounts to ACCS
will not result in the occurrence of a Pay Out Event; and
(v) to the extent required of ACCS by subsection 2.03(b)(iii) of the ACCS
Purchase Agreement, ANB shall have deposited in the Collection Account all
Collections with respect to such New Accounts since the Additional Cut-Off Date.
Section 2.04. Representations and Warranties. ANB hereby represents and
warrants to ACCS as of the related Addition Date as to the matters set forth in
Sections 2.02(b)(ii) and 2.03(b)(ii) above and that, in the case of Additional
Accounts, the list delivered pursuant to Section 2.05 below is, as of the
applicable Additional Cut-Off Date, true and complete in all material respects.
Section 2.05. Delivery of Documents. In the case of the designation of
Additional Accounts, ANB shall deliver to ACCS (i) the computer file or
microfiche list required to be delivered pursuant to Section 2.01 with respect
to such Additional Accounts on the date such file or list is required to be
delivered pursuant to Section 2.01 (the "DOCUMENT DELIVERY DATE") and (ii) a
duly executed, written assignment (including an acceptance by ACCS),
substantially in the form of EXHIBIT A (the "SUPPLEMENTAL CONVEYANCE"), on the
Document Delivery Date. In addition, in the case of the designation of New
Accounts, ANB shall deliver to ACCS on the Document Delivery Date an Officer's
Certificate confirming, to the extent applicable, the items set forth in clause
(i) through (v) of subsection 2.03(b) above.
[END OF ARTICLE II]
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ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price.
(a) The "PURCHASE PRICE" for the Receivables in the Initial Accounts as of
the Initial Cut-Off Date and the related Purchased Assets conveyed to ACCS under
this Agreement shall be payable on the Closing Date and shall be the aggregate
of (i) an amount equal to 95% of the aggregate balance of Principal Receivables
in those Accounts as of the Initial Cut-Off Date, adjusted to reflect such
factors as ANB and ACCS mutually agree will result in a Purchase Price
determined to be the fair market value of such Receivables and the related
Purchased Assets, and (ii) the undivided beneficial interest of ANB, as assignee
of ACCS, in the Transferor Certificate pursuant to the terms of the
Participation Agreement. This computation of initial purchase price shall assume
no reinvestment in new Receivables.
(b) The Purchase Price for the Receivables (including Receivables in
Additional Accounts) and the related Purchased Assets to be conveyed to ACCS
under this Agreement which come into existence after the Closing Date, shall be
payable on the Distribution Date following the Monthly Period in which such
Receivables and the related Purchased Assets are conveyed by ANB to ACCS and
shall be the aggregate of (i) an amount equal to 95% of the aggregate balance of
the Principal Receivables so conveyed (the "NEW PRINCIPAL RECEIVABLES"),
adjusted to reflect such factors as ANB and ACCS mutually agree will result in a
Purchase Price determined to be the fair market value of such New Principal
Receivables and the related Purchased Assets and (ii) the undivided beneficial
interest of ANB, as assignee of ACCS, in the Transferor Certificate pursuant to
the terms of the Participation Agreement.
(c) The portion of the Purchase Price computed in accordance with
subsections 3.01(a)(i) and 3.01(b)(i) (in each case, the "CASH PURCHASE PRICE"),
to be paid by ACCS, respectively, on the Closing Date and on each Distribution
Date following a Monthly Period during which New Principal Receivables are
conveyed to ACCS, shall be paid in cash.
(d) Notwithstanding any other provision of this Agreement, ANB shall not be
obligated to continue to sell Receivables to ACCS to the extent that ANB is not
paid the Purchase Price therefor as provided herein.
Section 3.02. Adjustments to Purchase Price. The Cash Purchase Price shall
be adjusted on each Distribution Date (a "CREDIT ADJUSTMENT") with respect to
any Receivable previously conveyed to ACCS by ANB which has since been reversed
by ANB or the Servicer because of a rebate, refund, unauthorized charge or
billing error to an Obligor because such Receivable was created in respect of
merchandise which was refused or returned by an Obligor or due to the occurrence
of any other event referred to in Section 3.09 of the Transfer and Servicing
Agreement. The amount of such adjustment shall equal (x) the product of (i) 95%
and (ii) the reduction in the principal balance of such Receivable resulting
from the occurrence of such event, multiplied by (y) the quotient (expressed as
a percentage) of (i) the Cash Purchase
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Price for Principal Receivables payable on such Distribution Date computed in
accordance with subsection 3.01(b)(1) divided by (ii) the product of (A) 95% and
(B) the aggregate of the Principal Receivables paid for on such date pursuant to
such subsection 3.01(b). In the event that an adjustment pursuant to this
Section 3.02 causes the Cash Purchase Price to be a negative number, ANB agrees
that, not later than 1:00 p.m., New York City time, on such Distribution Date,
ANB shall pay or cause to be paid to ACCS an amount equal to the amount by which
the Cash Purchase Price minus the Credit Adjustment would be reduced below zero.
[END OF ARTICLE III]
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of ANB Relating to ANB. ANB
hereby represents and warrants to, and agrees with, ACCS as of the Closing Date
and on each Addition Date, that:
(a) Organization and Good Standing. ANB is a national bank duly organized
and validly existing in good standing under the laws of the United States and
has, in all material respects, full power and authority to own its properties
and conduct its business as such properties are presently owned and such
business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
(b) Due Qualification. ANB is duly qualified to do business and is in good
standing as a foreign corporation (or is exempt from such requirements) and has
obtained all necessary licenses and approvals in each jurisdiction in which
failure to so qualify or to obtain such licenses and approvals would (i) render
any Credit Card Agreement relating to an Account or any Receivable unenforceable
by ANB, ACCS, ACCR or the Trust and (ii) have a material adverse effect on the
Noteholders.
(c) Due Authorization. The execution, delivery and performance of this
Agreement and any other document or instrument delivered pursuant hereto,
including any Supplemental Conveyance, to which ANB is a party (such other
documents or instruments, collectively, the "CONVEYANCE PAPERS"), and the
consummation of the transactions provided for in this Agreement and the
Conveyance Papers have been duly authorized by ANB by all necessary corporate
action on the part of ANB.
(d) No Conflict. The execution and delivery of this Agreement and the
Conveyance Papers by ANB, the performance of the transactions contemplated by
this Agreement and the Conveyance Papers, and the fulfillment of the terms of
this Agreement and the Conveyance Papers applicable to ANB will not conflict
with, violate or result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or lapse of time or both) a
material default under, any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which ANB is a party or by which it or any of its
properties are bound.
(e) No Violation. The execution, delivery and performance of this Agreement
and the Conveyance Papers by ANB and the fulfillment of the terms contemplated
herein and therein applicable to ANB will not conflict with or violate any
Requirements of Law applicable to ANB.
(f) No Proceedings. There are no proceedings or investigations pending or,
to the best knowledge of ANB, threatened, against ANB before any Governmental
Authority (i) asserting the invalidity of this Agreement or the Conveyance
Papers, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or the Conveyance Papers, (iii) seeking any
determination or ruling that, in the reasonable judgment of ANB, would
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materially and adversely affect the performance by ANB of its obligations under
this Agreement or the Conveyance Papers, (iv) seeking any determination or
ruling that would materially and adversely affect the validity or enforceability
of this Agreement or the Conveyance Papers or (v) seeking to affect adversely
the income tax attributes of the Trust under the United States Federal or
Delaware income tax systems.
(g) All Consents. All authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required to be
obtained, effected or given by ANB in connection with the execution and delivery
by ANB of this Agreement and the Conveyance Papers and the performance of the
transactions contemplated by this Agreement or the Conveyance Papers by ANB have
been duly obtained, effected or given and are in full force and effect.
The representations and warranties set forth in this Section 4.01 shall
survive the transfer and assignment of the Receivables to ACCS. Upon discovery
by ANB or ACCS of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give written notice to the
other party, ACCR, the Owner Trustee and the Indenture Trustee within three (3)
Business Days following such discovery.
Section 4.02. Representations and Warranties of ANB Relating to the
Agreement and the Receivables.
(a) Representations and Warranties. ANB hereby represents and warrants to
ACCS as of the date of this Agreement and as of the Closing Date with respect to
the Initial Accounts (and Receivables arising therein) and, with respect to
Additional Accounts (and Receivables arising therein), as of the related
Addition Date that:
(i) this Agreement and, in the case of Additional Accounts, the related
Supplemental Conveyance, each constitutes a legal, valid and binding obligation
of ANB enforceable against ANB in accordance with its terms, except as such
enforceability may be limited by applicable Debtor Relief Laws or general
principles of equity;
(ii) as of the Initial Cut-Off Date with respect to the Initial Accounts,
and as of the related Additional Cut-Off Date with respect to Additional
Accounts, SCHEDULE 1 to this Agreement, as supplemented to such date, is an
accurate and complete listing in all material respects of all the Accounts as of
the Initial Cut-Off Date or such Additional Cut-Off Date, as the case may be,
and the information contained therein with respect to the identity of such
Accounts and the Receivables existing thereunder is true and correct in all
material respects as of the Initial Cut-Off Date or such applicable Additional
Cut-Off Date, as the case may be, and as of the Initial Cut-Off Date, the
aggregate amount of Receivables in all the Initial Accounts was
$6,040,078,512.34, of which $5,702,279,900.35 were Principal Receivables;
(iii) each Receivable has been conveyed to ACCS free and clear of any Lien
and each underlying receivable is free and clear of all Liens;
(iv) all authorizations, consents, orders or approvals of or registrations
or declarations with any Governmental Authority required to be obtained,
effected or given by
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ANB in connection with the conveyance of Receivables to ACCS have been duly
obtained, effected or given and are in full force and effect;
(v) this Agreement and, in the case of Additional Accounts, the related
Supplemental Conveyance constitutes a valid sale, transfer and assignment to
ACCS of all right, title and interest of ANB in the Receivables and the proceeds
thereof and the Interchange payable pursuant to this Agreement and the
Recoveries payable pursuant to this Agreement;
(vi) on the Initial Cut-Off Date, each Initial Account is an Eligible
Account and, on the Additional Cut-Off Date, each related Additional Account is
an Eligible Account;
(vii) on the Initial Cut-Off Date, each Receivable then existing is an
Eligible Receivable and, on the applicable Additional Cut-Off Date, each
Receivable contained in the related Additional Account is an Eligible
Receivable;
(viii) as of the date of the creation of any new Receivable, such
Receivable is an Eligible Receivable; and
(ix) no selection procedures believed by ANB to be materially adverse to
the interests of ACCS have been used in selecting such Accounts.
(b) Notice of Breach. The representations and warranties set forth in this
Section 4.02 shall survive the transfer and assignment of the Receivables to
ACCS. Upon discovery by either ANB or ACCS of a breach of any of the
representations and warranties set forth in this Section 4.02, the party
discovering such breach shall give written notice to the other party, ACCR, the
Owner Trustee and the Indenture Trustee within three (3) Business Days following
such discovery; provided that the failure to give notice within three (3)
Business Days does not preclude subsequent notice. ANB hereby acknowledges that
ACCS intends to rely on the representations hereunder in connection with
representations made by ACCS to secured parties, assignees or subsequent
transferees including but not limited to transfers made by ACCS to ACCR and
thereafter to the Trust pursuant to the Transfer and Servicing Agreement and by
the Trust to the Indenture Trustee pursuant to the Indenture and that ACCR, the
Owner Trustee and the Indenture Trustee may enforce such representations
directly against ANB.
Section 4.03. Representations and Warranties of ACCS. As of the Closing
Date and each Addition Date, ACCS hereby represents and warrants to, and agrees
with, ANB that:
(a) Organization and Good Standing. ACCS is a corporation duly organized
and validly existing under the laws of the State of Delaware and has, in all
material respects, full power and authority to own its properties and conduct
its business as such properties are presently owned and such business is
presently conducted and to execute, deliver and perform its obligations under
this Agreement.
(b) Due Authorization. The execution and delivery of this Agreement and the
Conveyance Papers and the consummation of the transactions provided for in this
Agreement and the Conveyance Papers have been duly authorized by ACCS by all
necessary corporate action on the part of ACCS.
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(c) No Conflict. The execution and delivery of this Agreement and the
Conveyance Papers by ACCS, the performance of the transactions contemplated by
this Agreement and the Conveyance Papers, and the fulfillment of the terms of
this Agreement and the Conveyance Papers applicable to ACCS, will not conflict
with, result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material default
under, any indenture, contract, agreement, mortgage, deed of trust or other
instrument to which ACCS is a party or by which it or any of its properties are
bound.
(d) No Violation. The execution, delivery and performance of this Agreement
and the Conveyance Papers by ACCS and the fulfillment of the terms contemplated
herein and therein applicable to ACCS will not conflict with or violate any
Requirements of Law applicable to ACCS.
(e) No Proceedings. There are no proceedings or investigations pending or,
to the best knowledge of ACCS, threatened, against ACCS, before any Governmental
Authority (i) asserting the invalidity of this Agreement or the Conveyance
Papers, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or the Conveyance Papers, (iii) seeking any
determination or ruling that, in the reasonable judgment of ACCS, would
materially and adversely affect the performance by ACCS of its obligations under
this Agreement or the Conveyance Papers or (iv) seeking any determination or
ruling that would materially and adversely affect the validity or enforceability
of this Agreement or the Conveyance Papers.
(f) All Consents. All authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required to be
obtained, effected or given by ACCS in connection with the execution and
delivery by ACCS of this Agreement and the Conveyance Papers and the performance
of the transactions contemplated by this Agreement and the Conveyance Papers
have been duly obtained, effected or given and are in full force and effect.
The representations and warranties set forth in this Section 4.03 shall
survive the Conveyance of the Receivables to ACCS. Upon discovery by ACCS or ANB
of a breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the other party,
ACCR, the Owner Trustee and the Indenture Trustee.
[END OF ARTICLE IV]
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ARTICLE V
COVENANTS
Section 5.01. Covenants of ANB. ANB hereby covenants and agrees with ACCS
as follows:
(a) Receivables Not To Be Evidenced by Promissory Notes. Except in
connection with its enforcement or collection of an Account, ANB will take no
action to cause any Receivable (or underlying receivable) to be evidenced by any
instrument (as defined in the UCC) and if any Receivable (or underlying
receivable) is so evidenced as a result of any action by ANB it shall be deemed
to be an Ineligible Receivable in accordance with subsection 6.01(a) and shall
be reassigned to ANB in accordance with subsection 6.01(b).
(b) Security Interests. Except for the conveyances hereunder, ANB will not
sell, pledge, assign or transfer to any other Person, or take any other action
inconsistent with ACCS's ownership of the Receivables or grant, create, incur,
assume or suffer to exist any Lien (arising through or under ANB) on, any
Receivable (or the underlying receivable), whether now existing or hereafter
created, or any interest therein, and ANB shall not claim any ownership interest
in the Receivables and shall defend the right, title and interest of ACCS in, to
and under the Receivables, whether now existing or hereafter created, against
all claims of third parties claiming through or under ANB.
(c) Account Allocations. In the event that ANB is unable for any reason to
transfer Receivables to ACCS in accordance with the provisions of this Agreement
(including, without limitation, by reason of the application of the provisions
of Section 8.02 or any order of any Governmental Authority), then ANB agrees
(except as prohibited by any such order) to allocate and pay to ACCS, after the
date of such inability, all amounts in the manner by which ACCS will allocate
and pay such amounts to ACCR after such inability by ACCS pursuant to Section
5.01 of the ACCS Purchase Agreement.
(d) Delivery of Collections or Recoveries. In the event that ANB receives
Collections or Recoveries, ANB agrees to pay to ACCS (or to the Servicer if ACCS
so directs) all such Collections and Recoveries as soon as practicable after
receipt thereof.
(e) Notice of Liens. ANB shall notify ACCS promptly after becoming aware of
any Lien on any Receivable (or on the underlying receivable) other than the
conveyances hereunder, under the ACCS Purchase Agreement, under the Transfer and
Servicing Agreement or under the Indenture.
(f) Interchange. Not later than 1:00 p.m., New York City time, on each
Transfer Date, ANB shall deposit into the Collection Account, in immediately
available funds, (i) the amount of Interchange to be included as Collections of
Finance Charge Receivables with respect to the preceding Monthly Period or (ii)
if at any time ANB cannot identify the amount of such Interchange, the amount
reasonably estimated by ANB as the amount of such Interchange.
(g) Documentation of Transfer. ANB shall undertake to file the documents
which would be necessary to perfect and maintain the transfer of the Purchased
Assets to ACCS.
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(h) Periodic Rate Finance Charges. (i) Except (x) as otherwise required by
any Requirements of Law or (y) as is deemed by ANB to be necessary in order for
it to maintain its credit card business or a program operated by such credit
card business on a competitive basis based on a good faith assessment by it of
the nature of the competition with respect to the credit card business or such
program, it shall not at any time take any action which would have the effect of
reducing the Portfolio Yield to a level that could be reasonably expected to
cause any Series to experience any Pay Out Event or Event of Default based on
the insufficiency of the Portfolio Yield or any similar test and (ii) except as
otherwise required by any Requirements of Law, it shall not take any action
which would have the effect of reducing the Portfolio Yield to be less than the
highest Average Rate for any Group.
(i) Credit Card Agreements and Guidelines. Subject to compliance with all
Requirements of Law and paragraph (h) above, ANB may change the terms and
provisions of the applicable Credit Card Agreements or the applicable Credit
Card Guidelines in any respect (including the calculation of the amount or the
timing of charge-offs and the Periodic Rate Finance Charges to be assessed
thereon). Notwithstanding the above, unless required by Requirements of Law or
as permitted by paragraph (h) above, ANB will not take any action unless (i) at
the time of such action, ANB reasonably believes that such action will not cause
a Pay Out Event or Event of Default to occur, and (ii) such change is made
applicable to the comparable segment of the revolving credit card accounts owned
by ANB which have characteristics the same as, or substantially similar to, the
Accounts that are the subject of such change, except as otherwise restricted by
an endorsement, sponsorship, or other agreement between ANB and an unrelated
third party or by the terms of the Credit Card Agreements.
[END OF ARTICLE V]
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ARTICLE VI
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables.
(a) In the event any representation or warranty under subsection
4.02(a)(ii), (iii), (iv), (vi), (vii) or (viii) is not true and correct in any
material respect as of the date specified therein with respect to any Receivable
or the related Account and as a result of such breach ACCS is required to accept
reassignment of Ineligible Receivables previously sold by ANB to ACCS pursuant
to Section 6.01 of the ACCS Purchase Agreement, ANB shall accept reassignment of
such Ineligible Receivables on the terms and conditions set forth in subsection
6.01(b).
(b) ANB shall accept reassignment of any Ineligible Receivables previously
sold by ANB to ACCS from ACCS on the date on which such reassignment obligation
arises, and shall pay for such reassigned Ineligible Receivables by paying to
ACCS, not later than 3:00 p.m., New York City time, on such date, an amount
equal to the product of (i) 95% and (ii) the sum of (A) the unpaid principal
balance of such Ineligible Receivables plus (B) accrued and unpaid finance
charges at the annual percentage rate applicable to such Receivables from the
last date billed through the end of the Monthly Period in which such
reassignment obligation arises. Upon reassignment of such Ineligible
Receivables, ACCS shall automatically and without further action be deemed to
sell, transfer, assign, set-over and otherwise convey to ANB, without recourse,
representation or warranty, all the right, title and interest of ACCS in and to
such Ineligible Receivables, all Interchange and Recoveries related thereto, all
monies and amounts due or to become due with respect thereto and all proceeds
thereof; and such reassigned Ineligible Receivables shall be treated by ACCS as
collected in full as of the date on which they were transferred. ACCS shall
execute such documents and instruments of transfer or assignment and take such
other actions as shall reasonably be requested by ANB to effect the conveyance
of such Ineligible Receivables and other property pursuant to this subsection.
Section 6.02. Reassignment. In the event any representation or warranty set
forth in subsection 4.01(a), (c), (d), (f) or (g) or subsection 4.02(a)(i),
(a)(v) or (a)(ix) is not true and correct in any material respect and as a
result of such breach ACCS is required to accept a reassignment of the
Receivables previously sold by ANB to ACCS pursuant to Section 6.02 of the ACCS
Purchase Agreement, ANB shall be obligated to accept a reassignment of such
Receivables on the terms set forth below.
ANB shall pay to ACCS by depositing in the Collection Account in
immediately available funds, not later than 1:00 p.m., New York City time, on
the first Transfer Date following the Monthly Period in which such reassignment
obligation arises, in payment for such reassignment, an amount equal to the
amount specified in Section 2.06 of the Transfer and Servicing Agreement. Upon
reassignment of the Receivables on such Transfer Date, ACCS shall automatically
and without further action be deemed to sell, transfer, assign, set-over and
otherwise convey to ANB, without recourse, representation or warranty, all the
right, title and interest of ACCS in and to the Receivables, all Interchange and
Recoveries related thereto, and all monies and amounts due or to become due with
respect thereto and all proceeds thereof.
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ACCS shall execute such documents and instruments of transfer or assignment and
take such other actions as shall reasonably be requested by ANB to effect the
conveyance of such property pursuant to this subsection.
[END OF ARTICLE VI]
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ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to ACCS's Obligations Regarding Initial
Receivables. The obligations of ACCS to purchase the Receivables in the Initial
Accounts on the Closing Date shall be subject to the satisfaction of the
following conditions:
(a) All representations and warranties of ANB contained in this Agreement
shall be true and correct on the Closing Date with the same effect as though
such representations and warranties had been made on such date;
(b) All information concerning the Initial Accounts provided to ACCS shall
be true and correct as of the Initial Cut-Off Date in all material respects;
(c) ANB shall have (i) delivered to ACCS a computer file or microfiche list
containing a true and complete list of all Initial Accounts identified by
account number and by the Receivables balance as of the Initial Cut-Off Date and
(ii) substantially performed all other obligations required to be performed by
the provisions of this Agreement;
(d) ANB shall have recorded and filed, at its expense, any financing
statement with respect to the Receivables (other than Receivables in Additional
Accounts) now existing and hereafter created for the transfer of accounts and
general intangibles (each as defined in the applicable UCC) meeting the
requirements of applicable law in such manner and in such jurisdictions as would
be necessary to perfect the sale of and security interest in the Receivables
from ANB to ACCS, and shall deliver a file-stamped copy of such financing
statements or other evidence of such filings to ACCS;
(e) On or before the Closing Date, (i) ACCR and the Owner Trustee shall
have entered into the Trust Agreement (ii) ACCR, ANB and the Trust shall have
entered into the Transfer and Servicing Agreement, (iii) the Trust and the
Indenture Trustee shall have entered into the Indenture (iv) ACCS and ACCR shall
have entered into the ACCS Purchase Agreement and (v) the closing under all such
agreements shall take place simultaneously with the initial closing hereunder;
and
(f) All corporate and legal proceedings and all instruments in connection
with the transactions contemplated by this Agreement shall be satisfactory in
form and substance to ACCS, and ACCS shall have received from ANB copies of all
documents (including, without limitation, records of corporate proceedings)
relevant to the transactions herein contemplated as ACCS may reasonably have
requested.
Section 7.02. Conditions Precedent to ANB's Obligations. The obligations of
ANB to sell Receivables in the Initial Accounts on the Closing Date shall be
subject to the satisfaction of the following conditions:
(a) All representations and warranties of ACCS contained in this Agreement
shall be true and correct with the same effect as though such representations
and warranties had been made on such date;
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(b) Payment or provision for payment of the Purchase Price in accordance
with the provision of Section 3.01 hereof shall have been made; and
(c) All corporate and legal proceedings and all instruments in connection
with the transactions contemplated by this Agreement shall be satisfactory in
form and substance to ANB, and ANB shall have received from ACCS copies of all
documents (including, without limitation, records of corporate proceedings)
relevant to the transactions herein contemplated as ANB may reasonably have
requested.
[END OF ARTICLE VII]
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ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.01. Term. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue at least until the termination
of the Trust as provided in Article VIII of the Trust Agreement. Thereafter, it
may be terminated at anytime by mutual agreement of the parties hereto.
Section 8.02. Purchase Termination. If ANB shall fail generally to, or
admit in writing its inability to, pay its debts as they become due; or if a
proceeding shall have been instituted in a court having jurisdiction in the
premises seeking a decree or order for relief in respect of ANB in an
involuntary case under any Debtor Relief Law, or for the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or
other similar official of ANB or for any substantial part of ANB's property, or
for the winding-up or liquidation of ANB's affairs and, if instituted against
ANB, any such proceeding shall continue undismissed or unstayed and in effect,
for a period of sixty (60) consecutive days, or any of the actions sought in
such proceeding shall occur; or if ANB shall commence a voluntary case under any
Debtor Relief Law, or if ANB shall consent to the entry of an order for relief
in an involuntary case under any Debtor Relief Law, or consent to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator, conservator or other similar official of, or
for, any substantial part of its property, or any general assignment for the
benefit of its creditors or a receiver, conservator, or liquidator shall have
been appointed for ANB; or ANB shall have taken any corporate action in
furtherance of any of the foregoing actions (each, an "INSOLVENCY EVENT"); then
ANB shall immediately cease to transfer Principal Receivables to ACCS and shall
promptly give notice to ACCS, ACCR, the Owner Trustee and the Indenture Trustee
of such Insolvency Event. Notwithstanding any cessation of the transfer to ACCS
of additional Principal Receivables, Principal Receivables transferred to ACCS
prior to the occurrence of such Insolvency Event and Collections in respect of
such Principal Receivables and Finance Charge Receivables whenever created,
accrued in respect of such Principal Receivables, shall continue to be property
of ACCS available for transfer by ACCS to ACCR and by ACCR to the Trust pursuant
to the Transfer and Servicing Agreement.
[END OF ARTICLE VIII]
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ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment. This Agreement and any Conveyance Papers and the
rights and obligations of the parties hereunder and thereunder may not be
changed orally, but only by an instrument in writing signed by ACCS and ANB in
accordance with this Section 9.01. This Agreement and any Conveyance Papers may
be amended from time to time by ACCS and ANB (i) to cure any ambiguity, (ii) to
correct or supplement any provisions herein which may be inconsistent with any
other provisions herein or in any such other Conveyance Papers, (iii) to add any
other provisions with respect to matters or questions arising under this
Agreement or any Conveyance Papers which shall not be inconsistent with the
provisions of this Agreement or any Conveyance Papers, (iv) to change or modify
the Purchase Price and (v) to change, modify, delete or add any other obligation
of ANB or ACCS; provided, however, that no amendment pursuant to clause (iv) or
(v) of this Section 9.01 shall be effective unless ANB and ACCS have been
notified in writing that the Rating Agency Condition has been satisfied;
provided further that ANB shall have delivered to ACCS an Officer's Certificate,
dated the date of any such action, stating that ANB reasonably believes that
such action will not have an Adverse Effect, unless the Owner Trustee and the
Indenture Trustee shall consent thereto. Any reconveyance executed in accordance
with the provisions hereof shall not be considered to be an amendment to this
Agreement. A copy of any amendment to this Agreement shall be sent to the Rating
Agency.
Section 9.02. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.03. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to (a) in
the case of ANB, 250 East Carpenter Freeway, Irving, Texas 75062, Attention:
Senior Vice President-Capital Markets (facsimile no. (972) 652-5445), (b) in the
case of ACCS, 250 East Carpenter Freeway, Irving, Texas 75062, Attention:
Assistant General Counsel (facsimile no. (972) 652-4032), (c) in the case of the
Owner Trustee, Wilmington Trust Company, Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration (facsimile no. (302) 651-8882), or (d) in the case of the
Indenture Trustee, The Bank of New York, 101 Barclay Street, Floor 12 East, New
York New York 10286 (facsimile no. (212) 815-5544); or, as to each party, at
such other address as shall be designated by such party in a written notice to
each other party.
Section 9.04. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement or any Conveyance
Paper shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions, or terms shall be deemed severable from the remaining
covenants, agreements, provisions, and terms of this
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Agreement or any Conveyance Paper and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of any Conveyance
Paper.
Section 9.05. Assignment. Notwithstanding anything to the contrary
contained herein, other than the assignment of ACCS's right, title, and interest
in, to, and under this Agreement to ACCR, the Trust, and the Indenture Trustee
for the benefit of the beneficiaries of the Trust, including the Noteholders, as
contemplated by the ACCS Purchase Agreement, the Transfer and Servicing
Agreement, the Indenture and Section 9.06 hereof, this Agreement and all other
Conveyance Papers may not be assigned by the parties hereto; provided, however,
that ANB shall have the right to assign its right, title and interest in, to and
under this Agreement to (i) any successor by merger assuming this Agreement (ii)
to any affiliate owned directly or indirectly by AFCC which assumes the
obligations of this Agreement or (iii) to any entity; provided that the Rating
Agency has advised ACCS and ANB that the Rating Agency Condition has been
satisfied.
Section 9.06. Acknowledgement and Agreement of ANB. By execution below, ANB
expressly acknowledges and agrees that all of ACCS's right, title and interest
in, to, and under this Agreement, including, without limitation, all of ACCS's
right, title and interest in and to the Receivables purchased pursuant to this
Agreement, may be assigned by ACCS to ACCR and by ACCR to the Trust, and may be
assigned by the Trust to the Indenture Trustee for the benefit of the
beneficiaries of the Trust, including the Noteholders, and ANB consents to such
assignments. ANB further agrees that notwithstanding any claim, counterclaim,
right of setoff or defense which it may have against ACCS, due to a breach by
ACCS of this Agreement or for any other reason, and notwithstanding the
bankruptcy of ACCS or any other event whatsoever, ANB's sole remedy shall be a
claim against ACCS for money damages, and then only to the extent of funds
available to ACCS, and in no event shall ANB assert any claim on or any interest
in the Receivables or any proceeds thereof or take any action which would reduce
or delay receipt by the Trust of collections with respect to the Receivables.
Additionally, ANB agrees that any amounts payable by ANB to ACCS hereunder which
are to be paid by ACCS to ACCR and by ACCR to the Trust for the benefit of the
Noteholders shall be paid by ANB, on behalf of ACCS, directly to the Trust.
Section 9.07. Further Assurances. ACCS and ANB agree to do and perform,
from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the other party, ACCR, the Owner
Trustee or the Indenture Trustee more fully to effect the purposes of this
Agreement and the Conveyance Papers, including, without limitation, the
execution of any financing statements or continuation statements or equivalent
documents relating to the Receivables for filing under the provisions of the UCC
or other law of any applicable jurisdiction.
Section 9.08. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of ACCS or ANB, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
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Section 9.09. Counterparts. This Agreement and all Conveyance Papers may be
executed in two or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Section 9.10. Binding; Third-Party Beneficiaries. This Agreement and the
Conveyance Papers will inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns. ACCR, the Trust
and the Indenture Trustee shall be considered third-party beneficiaries of this
Agreement.
Section 9.11. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement and the Conveyance Papers set forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement and the
Conveyance Papers. This Agreement and the Conveyance Papers may not be modified,
amended, waived or supplemented except as provided herein.
Section 9.12. Headings. The headings are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
Section 9.13. Schedules and Exhibits. The schedules and exhibits attached
hereto and referred to herein shall constitute a part of this Agreement and are
incorporated into this Agreement for all purposes.
Section 9.14. Survival of Representations and Warranties. All
representations, warranties and agreements contained in this Agreement or
contained in any Supplemental Conveyance shall remain operative and in full
force and effect and shall survive conveyance of the Receivables by ACCS to ACCR
and thereafter to the Trust pursuant to the Transfer and Servicing Agreement and
by the Trust to the Indenture Trustee pursuant to the Indenture.
Section 9.15. Nonpetition Covenant. Notwithstanding any prior termination
of this Agreement, ANB shall not, prior to the date which is one year and one
day after the termination of this Agreement, acquiesce, petition or otherwise
invoke or cause ACCS, ACCR or the Trust to invoke the process of any
Governmental Authority for the purpose of commencing or sustaining a case
against ACCS, ACCR or the Trust under any Debtor Relief Law or appointing a
receiver, conservator, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of ACCS, ACCR or the Trust or any substantial part of its
property or ordering the winding-up or liquidation or the affairs of ACCS, ACCR
or the Trust.
[END OF ARTICLE IX]
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IN WITNESS WHEREOF, ACCS and ANB have caused this Amended and Restated
Receivables Purchase Agreement to be duly executed by their respective officers
as of the day and year first above written.
ASSOCIATES NATIONAL BANK (DELAWARE)
By: /s/ SCOTT W. MCCARTHY
-------------------------------------
Name: Scott W. McCarthy
Title: Senior Vice President
ASSOCIATES CREDIT CARD SERVICES, INC.
By: /s/ SCOTT W. MCCARTHY
-------------------------------------
Name: Scott W. McCarthy
Title: Senior Vice President
Acknowledged and Accepted:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ CASSANDRA SHEDD
-------------------------------
Name: Cassandra Shedd
Title: Assistant Treasurer
[Signature Page to ANB Amended and Restated Receivables Purchase Agreement]
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EXHIBIT A
FORM OF SUPPLEMENTAL CONVEYANCE
(As required by Section 2.05 of
the Receivables Purchase Agreement)
SUPPLEMENTAL CONVEYANCE No. ___, dated as of ___________ __, ____, by and
between ASSOCIATES NATIONAL BANK (DELAWARE), as Transferor ("ANB"), and
ASSOCIATES CREDIT CARD SERVICES, INC. ("ACCS"), pursuant to the Receivables
Purchase Agreement referred to below.
WITNESSETH:
WHEREAS, ANB and ACCS are parties to an Amended and Restated Receivables
Purchase Agreement, dated as of April 1, 2000 (hereinafter as such agreement may
have been, or may from time to time be, amended, supplemented or otherwise
modified, the "RECEIVABLES PURCHASE AGREEMENT");
WHEREAS, pursuant to the Receivables Purchase Agreement, ANB wishes to
designate Additional Accounts to be included as Accounts and ANB wishes to
convey its right, title and interest in the Receivables of such Additional
Accounts, whether now existing or hereafter created, to ACCS pursuant to the
Receivables Purchase Agreement (as each such term is defined in the Receivables
Purchase Agreement); and
WHEREAS, ACCS is willing to accept such designation and conveyance subject
to the terms and conditions hereof.
NOW, THEREFORE, ANB and ACCS hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have the meanings
ascribed to them in the Receivables Purchase Agreement unless otherwise defined
herein.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby __________ __, ____.
"Additional Cut-Off Date" shall mean, with respect to the Additional
Accounts designated hereby, _____________ __, ____.
2. Designation of Additional Accounts. ANB delivers herewith a computer
file or microfiche list containing a true and complete schedule identifying all
such Additional Accounts (the "ADDITIONAL ACCOUNTS") and specifying for each
such Additional Account, as of the Additional Cut-Off Date, its account number,
the aggregate amount outstanding in such Account and the aggregate amount of
Principal Receivables in such Account. Such computer file, microfiche list or
other documentation shall be as of the date of this Supplemental Conveyance
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incorporated into and made part of this Supplemental Conveyance and is marked as
SCHEDULE 1 to this Supplemental Conveyance.
3. Conveyance of Receivables.
(a) ANB does hereby sell, transfer, assign, set over and otherwise convey
to ACCS, without recourse except as provided in the Receivables Purchase
Agreement, all its right, title and interest in, to and under the Receivables
arising in such Additional Accounts, existing at the close of business on the
Additional Cut-Off Date and thereafter created until termination of the
Receivables Purchase Agreement, all Interchange and Recoveries with respect to
such Receivables, all monies due or to become due and all amounts received or
receivable with respect thereto and all "proceeds" (including, without
limitation, "proceeds" as defined in Article 9 of the UCC) thereof.
(b) In connection with such sale and if necessary, ANB agrees to record and
file, at its own expense, one or more financing statements (and continuation
statements with respect to such financing statements when applicable) with
respect to the Receivables, existing on the Additional Cut-Off Date and
thereafter created, meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect the sale and
assignment of and the security interest in the Receivables to ACCS, and to
deliver a file-stamped copy of such financing statement or other evidence of
such filing to ACCS.
(c) In connection with such sale, ANB further agrees, at its own expense,
on or prior to the date of this Supplemental Conveyance, to indicate in the
appropriate computer files or microfiche list that all Receivables created in
connection with the Additional Accounts designated hereby have been conveyed to
ACCS pursuant to this Supplemental Conveyance.
4. Acceptance by ACCS. ACCS hereby acknowledges its acceptance of all
right, title and interest to the property, existing on the Additional Cut-Off
Date and thereafter created, conveyed to ACCS pursuant to Section 3(a) of this
Supplemental Conveyance, and declares that it shall maintain such right, title
and interest. ACCS further acknowledges that, prior to or simultaneously with
the execution and delivery of this Supplemental Conveyance, ANB delivered to
ACCS the computer file or microfiche list described in Section 2 of this
Supplemental Conveyance.
5. Representations and Warranties of ANB. ANB hereby represents and
warrants to ACCS as of the date of this Supplemental Conveyance and as of the
Addition Date that:
(a) Legal, Valid and Binding Obligation. This Supplemental Conveyance
constitutes a legal, valid and binding obligation of ANB enforceable against ANB
in accordance with its terms, except as such enforceability may be limited by
applicable Debtor Relief Laws or general principles of equity;
(b) Eligibility of Accounts. On the Additional Cut-Off Date, each
Additional Account designated hereby is an Eligible Account;
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(c) No Liens. Each Receivable in an Additional Account designated hereby
has been conveyed to ACCS free and clear of any Lien and each underlying
receivable is free and clear of all Liens;
(d) Eligibility of Receivables. On the Additional Cut-Off Date, each
Receivable existing in an Additional Account designated hereby is an Eligible
Receivable and as of the date of creation of any Receivable in an Additional
Account designated hereby, such Receivable is an Eligible Receivable;
(e) Selection Procedures. No selection procedure believed by ANB to be
adverse to the interests of ACCS or the Noteholders was utilized in selecting
the Additional Accounts;
(f) Transfer of Receivables. This Supplemental Conveyance constitutes a
valid sale, transfer and assignment to ACCS of all right, title and interest of
ANB in the Receivables arising in the Additional Accounts designated hereby
existing on the Additional Cut-Off Date or thereafter created, the Interchange
and the Recoveries with respect thereto, all monies due or to become due and all
amounts received or receivable with respect thereto and the "proceeds"
(including, without limitation, "proceeds" as defined in Article 9 of the UCC)
thereof;
(g) No Conflict. The execution and delivery of this Supplemental
Conveyance, the performance of the transactions contemplated by this
Supplemental Conveyance and the fulfillment of the terms hereof, will not
conflict with, result in any breach of any of the material terms and provisions
of, or constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of trust or
other instrument to which ANB is a party or by which it or its properties are
bound;
(h) No Violation. The execution and delivery of this Supplemental
Conveyance by ANB, the performance of the transactions contemplated by this
Supplemental Conveyance and the fulfillment of the terms hereof applicable to
ANB will not conflict with or violate any Requirements of Law applicable to ANB;
(i) No Proceedings. There are no proceedings or investigations, pending or,
to the best knowledge of ANB, threatened, against ANB before any Governmental
Authority (i) asserting the invalidity of this Supplemental Conveyance, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Supplemental Conveyance, (iii) seeking any determination or ruling that, in
the reasonable judgment of ANB, would materially and adversely affect the
performance by ANB of its obligations under this Supplemental Conveyance or (iv)
seeking any determination or ruling that would materially and adversely affect
the validity or enforceability of this Supplemental Conveyance; and
(j) All Consents. All authorizations, consents, orders or approvals of any
Governmental Authority required to be obtained by ANB in connection with the
execution and delivery of this Supplemental Conveyance by ANB and the
performance of the transactions contemplated by this Supplemental Conveyance by
ANB, have been obtained.
6. Ratification of the Receivables Purchase Agreement. The Receivables
Purchase Agreement is hereby ratified, and all references to the "RECEIVABLES
PURCHASE
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AGREEMENT," to "THIS AGREEMENT" and "HEREIN" shall be deemed from and after the
Addition Date to be a reference to the Receivables Purchase Agreement as
supplemented by this Supplemental Conveyance. Except as expressly amended
hereby, all the representations, warranties, terms, covenants and conditions of
the Receivables Purchase Agreement shall remain unamended and shall continue to
be, and shall, remain, in full force and effect in accordance with its terms and
except as expressly provided herein shall not constitute or be deemed to
constitute a waiver of compliance with or consent to non-compliance with any
term or provision of the Receivables Purchase Agreement.
7. Counterparts. This Supplemental Conveyance may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument.
8. Governing Law. This Supplemental Conveyance shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions.
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IN WITNESS WHEREOF, the undersigned have caused this Supplemental
Conveyance to be duly executed and delivered by their respective duly authorized
officers on the day and the year first above written.
ASSOCIATES NATIONAL BANK (DELAWARE)
By:
-------------------------------------
Name:
Title:
ASSOCIATES CREDIT CARD SERVICES, INC.
By:
-------------------------------------
Name:
Title:
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Schedule 1 to
Supplemental
Conveyance
ADDITIONAL ACCOUNTS
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Schedule 1
LIST OF ACCOUNTS
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