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OVERDUE RECEIVABLES PURCHASE AND SALE AGREEMENT
BETWEEN
XXXXXX TRUST AND SAVINGS BANK
AND
PARTNERS FIRST RECEIVABLES, LLC
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OVERDUE RECEIVABLES PURCHASE AND SALE AGREEMENT
This Overdue Receivables Purchase and Sale Agreement, dated as of
January 29, 1998 (as in effect from time to time, this "Agreement"),
between (a) Xxxxxx Trust and Savings Bank, an Illinois banking
corporation (the "Seller"), and (b) Partners First Receivables, LLC, a
Delaware limited liability company (the "Purchaser").
WHEREAS, Seller desires to sell the Overdue Receivables (as
hereinafter defined) to Purchaser, and Purchaser desires to purchase the
Overdue Receivables, on the terms and conditions hereinafter set forth
and provided.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants set forth below, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree, intending to be legally bound, as follows:
ARTICLE 1
DEFINITIONS
Section 1.1. Certain Defined Terms. Capitalized terms used herein
without definition have the meaning assigned to such terms in the Limited
Liability Company Agreement of Partners First Holdings, LLC dated as of
the date hereof among BankBoston (NH), National Association, Bankmont
Financial Corp., Xxxxxx Trust and Savings Bank, First Annapolis Marketing
Information Services, Inc. and the Company (the "Operating Agreement").
Additionally, the following capitalized terms shall have the following
meanings:
"Adjusted Closing Statement" has the meaning set forth in
Section 3.3(b).
"Agreement" has the meaning set forth in the preamble.
"Applicable Agreements" means (i) that certain Contribution
Agreement dated as of the date hereof by and between Partners First
Holdings, LLC and Seller, (ii) that certain Contribution Agreement dated
as of the date hereof by and between Partners First Holdings, LLC and
Bankmont Financial Corp., and (iii) that certain Receivables Purchase and
Sale Agreement dated as of the date hereof by and between Seller and
Purchaser.
"Assignment" has the meaning set forth in Section 9.3.
"Assumed Obligations" has the meaning set forth in Section 3.1.
"Cardholder" means a holder of a Credit Card.
"Cardholder Agreements" means the agreements between the
Cardholders or other obligors with respect to a Credit Card and the
Seller, including, without limitation, any agreements relating to credit
enhancements provided in connection with such Credit Card, and as the
same has been amended or otherwise modified and in effect from time to
time.
"Chargeback Amount" has the meaning set forth in Article 10.
"Claim" has the meaning set forth in Section 7.3(a).
"Closing Date" means the date on which the transactions described
in this Agreement are consummated, except that for purposes of
determining Overdue Accounts or Overdue Receivables it shall mean the
opening of business on the day on which the transactions described in
this Agreement are consummated.
"Credit Card" means a MasterCard(R) or Visa(R) card issued by
Seller and associated solely with an Overdue Account of Seller's Credit
Card Business.
"Credit Card Business" means the provision of lines of credit
accessible by Visa(R) or MasterCard(R) to consumers within the United
States of America, the servicing of such credit card relationships, and
the provision of services incidental thereto.
"Estimated Purchase Price" has the meaning set forth in
Section 3.3.
"Excluded Accounts" has the meaning set forth in Section 2.2.
"Excluded Assets" has the meaning set forth in Section 2.2.
"Governmental Authority" means any federal, national, state,
municipal, local, territorial or other governmental department,
commission, board, bureau, agency, regulatory authority, instrumentality,
judicial or administrative body, domestic or foreign and Visa(R) and
MasterCard(R).
"Indemnified Party" has the meaning set forth in Section
7.3(a).
"Indemnifying Party" has the meaning set forth in Section
7.3(a).
"Initial Closing Statement" has the meaning set forth in
Section 3.3(a).
"Letter" has the meaning set forth in Section 9.3.
"Losses" has the meaning set forth in Section 7.1.
"MasterCard(R)" means MasterCard International Incorporated.
"Overdue Accounts" means all of the credit card accounts of the
Seller's Credit Card Business (other than Excluded Accounts) identified
on Schedule 2.1 which is attached hereto or provided herewith and made a
part hereof (which may in the Seller's sole discretion be in the form of
a computer file or magnetic tape) consisting generally of any credit card
account of Seller's Credit Card Business (other than commercial or
business or accounts), including dormant accounts, inactive accounts,
closed accounts, accounts which are classified as "substandard,"
"doubtful," "loss" or treated as "other loans especially mentioned" in
the most recent report examination prepared by any Federal or State
supervisory agency, accounts in nonaccrual status, accounts on which
principal or interest payments are more than 30 days past due, accounts
whose terms have been renegotiated or compromised due to the
deteriorating financial condition of the Cardholder or accounts statused
by Seller as bankrupt, deceased, fraud, lost or stolen or charged off (in
accordance with the Seller's then-current written policies) and which
contains sufficient information to identify each account and respective
Cardholder such as name, address, social security number, account number,
status codes, account balance and such other information as is mutually
agreed upon by Purchaser and Seller.
"Overdue Receivables" has the meaning set forth in Section 2.1.
"Purchase Price" has the meaning set forth in Section 3.2.
"Purchaser" has the meaning set forth in the preamble hereto.
"Purchaser Indemnitees" has the meaning set forth in Section
7.1.
"Purchaser Indemnity Representations" means the representations and
warranties of Purchaser contained in Section 5.4 and 5.5 of this
Agreement.
"Receivables Agreements" has the meaning set forth in Section
9.3.
"Retained Liabilities" has the meaning set forth in Section
3.1.
"Seller" has the meaning set forth in the preamble hereto.
"Seller Indemnitees" has the meaning set forth in Section 7.2.
"Seller Indemnity Representations" means the representations and
warranties of Seller contained in Sections 4.5, 4.6, 4.7 (except the
first sentence thereof), 4.8, 4.9, 4.10 and 4.12 of this Agreement.
"Subject Losses" has the meaning set forth in Section 7.5.
"Third Party Claim" has the meaning set forth in Section
7.3(a).
"Visa(R)" means Visa U.S.A., Inc.
"Zero Value Accounts" means Overdue Accounts which, as of the
Closing Date are (i) statused by Seller as bankruptcy, deceased, fraud,
lost or stolen or charged off or (ii) 180 days or more contractually past
due (in each case, such status to be determined in accordance with
Seller's then-current written policies).
ARTICLE 2
SALE OF ASSETS
Section 2.1. Overdue Receivables. On the Closing Date, and subject
to the terms and conditions set forth in this Agreement, the Seller
(subject to the provisions of Article 10 hereto) shall sell, assign,
transfer and deliver to Purchaser, and the Purchaser shall purchase and
take assignment and delivery of, all of the Seller's right, title and
interest in, to and under the following assets as of the Closing Date
(other than the Excluded Accounts and the Excluded Assets): any and all
amounts owing from the Cardholders to the Seller (whether billed or
unbilled, posted or not) in connection with the Overdue Accounts,
including, without limitation, all principal, outstanding purchases, cash
advances, interest (including accrued but unbilled interest), annual
fees, finance and service charges and other charges and fees, less any
and all amounts owing from the Seller to the Cardholders as a credit
balance, whether or not credited (hereinafter referred to collectively as
the "Overdue Receivables").
The parties hereto intend that the conveyance of the Seller's
right, title and interest in and to the Overdue Receivables shall
constitute an absolute sale, conveying good title free and clear of any
liens, claims, encumbrances or rights of others from the Seller to the
Purchaser and that the Overdue Receivables shall not be a part of the
Seller's estate in the event of the insolvency of the Seller or a
conservatorship, receivership or similar event with respect to the
Seller. It is the intention of the parties hereto that the arrangements
with respect to the Overdue Receivables shall constitute a purchase and
sale of such Overdue Receivables 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 the Seller shall be deemed to have granted
and does hereby grant to the Purchaser a first priority perfected
security interest, in all of the Seller's right, title and interest,
whether now owned or hereafter acquired, in, to and under the Overdue
Receivables to secure the rights of the Purchaser hereunder and the
obligations of the Seller hereunder.
Section 2.2. Excluded Assets. Notwithstanding the foregoing, the
Seller is not transferring to the Purchaser and the Purchaser is not
acquiring pursuant to this Agreement, and the term "Overdue Receivables"
shall not include, any other assets of Seller not specifically referenced
in Section 2.1 (the "Excluded Assets") or any Overdue Receivables
generated by or related to accounts which are secured accounts,
commercial or business accounts ("Excluded Accounts").
2.3. Secured Accounts. Seller hereby transfers and assigns to
Purchaser all right, title and interest in and to certificates of deposit
and other deposit accounts constituting security for the payments of the
Overdue Receivables generated with respect to Accounts. Subject to the
terms of the agreements with Cardholders, Seller will continue to
administer and maintain the deposit accounts with Seller as provided
under any deposit agreements with Cardholders, including payment of
interest, if any, on such accounts and providing statements of account
balances to those depositors. Seller will place a "hold" on such deposit
accounts. Upon a Cardholder's default and upon the written direction of
Purchaser (or Purchaser's designee), Seller will turn over to Purchaser
amounts due Purchaser from such Cardholder. Purchaser and Seller will
cooperate to develop procedures to facilitate the utilization of the
security assigned to Purchaser hereunder for Purchaser's benefit.
ARTICLE 3
ASSUMPTION OF OBLIGATIONS
Section 3.1. Assumption of Obligations. The Purchaser hereby assumes,
and agrees to pay, perform, fulfill and discharge, all of the Seller's
obligations with respect to the Overdue Receivables from and after the
Closing Date (collectively, the "Assumed Obligations"). Anything in this
Agreement to the contrary notwithstanding, the Purchaser shall not
assume, and shall not be deemed to have assumed, any liability, contract
or obligation of the Seller not specifically listed or included herein or
assumed by separate written agreement signed by the Purchaser (all such
liabilities and obligations not being assumed being referred to herein as
the "Retained Liabilities"), which Retained Liabilities are retained by
the Seller and the Purchaser shall not be liable therefor.
Section 3.2. Consideration. In consideration of the sale of the
Overdue Receivables by the Seller to the Purchaser hereunder, the
Purchaser agrees to assume the Assumed Obligations and to pay to the
Seller, the purchase price ("Purchase Price") which shall be an amount
equal to (i) the sum of all Overdue Receivables as of the Closing Date,
(ii) less the sum of all Overdue Receivables of the Zero Value Accounts
as of the Closing Date, and (iii) plus or minus any other items or
prorations agreed to by Seller and Purchaser.
Section 3.3. Payment of Purchase Price. (a) On the Closing Date, the
parties shall prepare a closing statement (the "Initial Closing
Statement") calculating the Purchase Price as of the date of the most
recently available data (or another date mutually acceptable to Purchaser
and Seller) with respect to the Overdue Receivables (the "Estimated
Purchase Price"). On the Closing Date, the Estimated Purchase Price shall
be paid in immediately available funds to Seller by Purchaser.
(b) As soon as practicable after the Closing Date, Purchaser and
Seller shall conduct and complete a post-Closing review of the Overdue
Receivables and shall prepare a closing statement as of the Closing Date
(the "Adjusted Closing Statement"), mutually acceptable to Seller and
Purchaser, and showing any adjustments from the Initial Closing Statement
including the difference between the Estimated Purchase Price and the
Purchase Price. Purchaser shall pay Seller (or Seller shall pay Purchaser
as the case may be) an amount equal to the difference between the
Estimated Purchase Price and the Purchase Price as reflected on the
Adjusted Closing Statement plus interest thereon at the federal funds
rate from the Closing Date to the date of payment.
Section 3.4 Post-Closing Adjustments. Seller is responsible for any
and all fees in connection with the Overdue Receivables related to the
period prior to the Closing Date, including fees, normal operating
assessments or penalties and other charges imposed by MasterCard(R) or
Visa(R). The parties hereto hereby agree to cooperate in good faith to
estimate such fees and include them on the Initial Closing Statement and
to make such post-closing adjustments between themselves as may be
necessary to give effect to the provisions hereof and to reflect such
adjustments on the Adjusted Closing Statement. Adjustments to amounts
calculated pursuant to Sections 3.3 and this Section 3.4 hereof may
include unposted amounts, miscalculations, errors, incorrect status,
mischaracterization or mis-classification of Overdue Accounts, Zero Value
Accounts and Overdue Receivables prior to the Closing Date. For purposes
of this adjustment, mis-classified Overdue Accounts which should have
been classified as Zero Value Accounts will be valued accordingly. As
provided in Section 6.2 hereof, for the purposes of determining when or
whether an event took place, the interchange date as specified by Visa(R)
or MasterCard(R) shall be determinative.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser as
follows:
Section 4.1. Organization. The Seller is a banking corporation duly
organized and validly existing under the laws of Illinois and is
authorized to conduct general banking business under such laws.
Section 4.2. Authority; Enforceability. The Seller has all
requisite power and authority (i) to enter into and carry out its
obligations under this Agreement, (ii) to hold the Overdue Receivables
and (iii) to sell, assign and transfer the Overdue Receivables to the
Purchaser. The execution, delivery and performance of this Agreement have
been duly authorized by all necessary action on the part of Seller. This
Agreement has been duly executed and delivered by Seller and constitutes
the legal, valid and binding obligation of the Seller, enforceable
against the Seller in accordance with its terms, except as enforcement
thereof may be limited by receivership, conservatorship and supervisory
powers of bank regulatory agencies generally, as well as bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or similar
laws of general applicability relating to or affecting creditors' rights
or to general equity principles (regardless of whether such matters are
considered in a proceeding in equity or at law) and the availability of
equitable remedies.
Section 4.3. No Conflicts. The execution, delivery and performance by
the Seller of this Agreement does not violate (a) the Seller's Charter or
By-Laws, as applicable, (b) any material agreement or instrument to which
the Seller is a party or by which the Seller is bound or which affects
the Overdue Receivables, or (c) any law, rule or regulation applicable to
the Seller or which affects the Overdue Receivables.
Section 4.4. Ownership of Assets. The Seller is the sole owner of all
right, title and interest in, to and under all of the Overdue Receivables
being sold by the Seller to the Purchaser under this Agreement. The
Seller has the right, power and authority to sell and transfer the
Overdue Receivables to the Purchaser, and the Overdue Receivables are not
subject to any assignment, lien, charge, encumbrance or security
interest, except that such Overdue Receivables may be subject to the
terms of the Cardholder Agreements and to other rights of Cardholders and
other obligors as specified in Section 4.7 hereof. The Seller hereby
sells the Overdue Receivables to the Purchaser free and clear of all
assignments, liens, charges, encumbrances and other security interests
and of all claims or rights of third parties, except as such Overdue
Receivables may be subject to the terms of the Cardholder Agreements and
to other rights of Cardholders and other obligors as specified in Section
4.7 hereof.
Section 4.5. Cardholder Agreements. The Overdue Receivables have
been generated pursuant to the Overdue Accounts and pursuant to
Cardholder Agreements which are legal, valid and binding upon Seller and,
to the best of Seller's knowledge, such Cardholder Agreements are legally
binding agreements, enforceable in all material respects against the
Cardholders or other obligors who are a party thereto in accordance with
their respective terms, except as enforcement thereof may be limited by
bankruptcy, fraudulent transfer, reorganization, moratorium or similar
laws of general applicability relating to or affecting creditors' rights
or to general equity principles (regardless of whether such matters are
considered in a proceeding in equity or at law) and the availability of
equitable remedies. The Seller is in compliance with the Cardholder
Agreements except where the failure to so comply would not have a
material adverse effect on the Overdue Receivables.
Section 4.6. Litigation. Except for the litigation described on
Schedule 4.6, which is attached hereto and made a part hereof, there are
no actions, suits or proceedings pending or, to the knowledge of the
Seller, threatened against or affecting the Seller which would reasonably
be expected to cause any material adverse effect on the Overdue
Receivables. There is no action, suit or proceeding pending against the
Seller which would prevent the Seller from consummating the sale of the
Overdue Receivables to the Purchaser hereunder.
Section 4.7. Overdue Receivables. Other than the right of
Cardholders or other obligors to assert claims and defenses against the
Seller pursuant to 12 C.F.R. ss.226.12(c) and under any other applicable
laws and the Cardholders' "billing error" rights pursuant to 12 C.F.R.
ss.226.13, to the best of the Seller's knowledge, the Overdue Receivables
are not subject to Cardholder or other obligor claims, offsets or
adjustments and represent the legal, valid and binding obligations of the
Cardholders, enforceable against the Cardholders in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
fraudulent transfer, reorganization, moratorium or similar laws of
general applicability relating to or affecting creditors' rights or to
general equity principles (regardless of whether such matters are
considered in a proceeding in equity or at law) and the availability of
equitable remedies. Seller makes no representation or warranty regarding
the payment or collectibility of the Overdue Receivables.
Section 4.8. Compliance with Applicable Law. The Overdue
Receivables have been generated in compliance, in all material respects,
with applicable federal and state laws, rules and regulations, and
judicial, administrative and arbitrator's orders relating thereto,
including without limitation the federal Truth-in-Lending Act, Equal
Credit Opportunity Act, Fair Credit Reporting Act, Fair Debt Collection
Practices Act and Regulations B and Z promulgated by the Board of
Governors of the Federal Reserve System.
Section 4.9. Licensed to Carry on Credit Card Business. The Seller
is and has been licensed to participate in the programs offered by
Visa(R) and by MasterCard(R) to the full extent necessary to generate the
Overdue Receivables.
Section 4.10. Account Records. The books and records relating to
the Overdue Receivables are accurate and complete in all material
respects, in each case, as of the date when each such record was made and
all information relating to application, payment history, customer
inquiry and other relevant Overdue Account information is contained in
the relevant books and records.
Section 4.11. Brokers. The Seller has not agreed to pay any fee or
commission to any agent, broker, finder or other person for or on account
of services rendered as a broker or finder in connection with this
Agreement or the sale of the Overdue Receivables hereunder.
Section 4.12. Permits, Etc. No consent of any Person and no license,
permit or approval with any Governmental Authority having jurisdiction
over Seller is required in connection with the transactions contemplated
by this Agreement. The Seller has not received notice from any
Governmental Authority indicating that it would oppose or not grant or
issue its consent or approval, if required, with respect to the sale of
the Overdue Receivables hereunder or any of the other transactions
contemplated hereby.
The Seller makes no other representations or warranties, expressed
or implied, with respect to the subject matter hereof other than as
specifically set forth in this Article 4.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller as
follows:
Section 5.1. Organization. The Purchaser is a limited liability
company duly organized and validly existing in good standing under the
laws of the State of Delaware.
Section 5.2. Authority; Enforceability. The Purchaser has all
requisite power and authority (i) to enter into and carry out its
obligations under this Agreement, (ii) to purchase and hold the Overdue
Receivables and (iii) to assume the Assumed Obligations. The execution,
delivery and performance of this Agreement have been duly authorized by
all necessary action on the part of the Purchaser. This Agreement has
been duly executed and delivered by the Purchaser and constitutes the
legal, valid and binding obligation of the Purchaser, enforceable against
the Purchaser in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws of general applicability
relating to or affecting creditors' rights or to general equity
principles (regardless of whether such matters are considered in a
proceeding in equity or at law) and the availability of equitable
remedies.
Section 5.3. No Conflicts. The execution, delivery and performance of
this Agreement by the Purchaser does not violate (a) Purchaser's
Certificate of Formation or Limited Liability Company Agreement, (b) any
material agreement or instrument to which the Purchaser is a party or by
which the Purchaser is bound, or (c) any law, rule or regulation
applicable to the Purchaser.
Section 5.4. Permits, Etc. The Purchaser has obtained all licenses,
permits and approvals of all Governmental Authorities necessary for the
Purchaser to purchase, service and collect the Overdue Receivables and to
consummate the transactions contemplated hereby.
Section 5.5. Litigation. There is no action, suit or proceeding
pending or, to the knowledge of the Purchaser, threatened against the
Purchaser which challenges the validity, propriety or enforceability of,
or seeks to enjoin the performance of, the transactions contemplated by
this Agreement.
Section 5.6. Finders or Brokers. Neither Purchaser nor any Affiliate
of Purchaser has agreed to pay any fee or commission to any agent,
broker, finder or other person for or on account of services rendered as
a broker or finder in connection with this Agreement or the transactions
contemplated hereby.
ARTICLE 6
CERTAIN TRANSITIONAL MATTERS
Section 6.1. Third Party Consents. To the extent any Assumed
Obligation is not transferable or assignable without the consent of any
third party or the transfer or assignment of which would result in a
violation of any law or order, this Agreement shall not constitute on
assignment or attempted assignment thereof; Seller shall use all
reasonable efforts to obtain the required consent of any such third party
to the transfer or assignment thereof to the Purchaser and if any such
consent shall not be obtained, Seller shall cooperate with the Purchaser
in any reasonable arrangement (including reimbursement of monies paid by
the Purchaser on account of any such arrangement) designed to provide the
Purchaser with the benefits and/or burdens intended to be transferred and
assigned to it thereunder.
Section 6.2. Responsibility for Pre-Closing Transactions. Subject to
the provisions of Article 10, the Seller shall remain liable after the
date hereof for all draft retrievals, representments or incorrectly
posted transactions arising from transactions with an interchange
transaction date occurring prior to the Closing Date with respect to the
Overdue Receivables.
Section 6.3. Business Records. The Purchaser acknowledges that
certain business records of the Seller relating to the Seller's Credit
Card Business prior to the Closing Date will be conveyed to the Purchaser
or others, and that the Seller may from time to time require access to
such records, and the Purchaser agrees that upon reasonable prior notice
from the Seller, it will, during normal business hours, either provide
the Seller with access to records under its custody or control or, at the
Purchaser's option, copies of such records for such purposes. The Seller
agrees to hold any information so provided as confidential and in strict
confidence as it would its own confidential information. The Purchaser
agrees that it will not destroy any such business records during the
three (3) year period after the date hereof, and it will not within the
two (2) year period after such date destroy any business records prepared
prior to the date hereof without first notifying the Seller and affording
the Seller the opportunity to remove or copy them.
Section 6.4. Further Assistance. On and after the Closing Date,
Seller shall (i) execute, acknowledge and deliver all such
acknowledgments and other instruments (including financing statements)
and take such further action as may be necessary and appropriate to
effectively vest in the Purchaser the full legal and equitable title to
the Overdue Receivables or to perfect the Purchaser's interest therein,
and (ii) assist the Purchaser in the orderly transition of the Overdue
Receivables being acquired by the Purchaser, and (iii) deliver such other
information about the Overdue Receivables as the Purchaser may reasonably
request. Subject to the provisions of Article 10 hereof, in the event
Seller shall receive any payments relating to the Overdue Receivables
attributable to the period after the Closing Date, the Seller shall
promptly endorse and transfer such payments to the Purchaser and take all
necessary and reasonable actions to vest such monies in the Purchaser.
ARTICLE 7
INDEMNIFICATION
Section 7.1. Indemnity by the Seller. The Seller agrees to indemnify
and hold the Purchaser, and its affiliates, employees, officers,
directors, controlling persons, successors and assigns (the "Purchaser
Indemnitees"), harmless from and with respect to any and all claims,
liabilities, losses, damages, costs and expenses, including without
limitation the reasonable fees and disbursements of counsel and expert
witnesses, net of insurance proceeds (collectively, the "Losses"),
related to or arising directly or indirectly out of (a) any inaccuracies
in any representation or warranty made by the Seller in or pursuant to
this Agreement, (but only to the extent that Losses relating to or
arising directly or indirectly out of such inaccuracies when taken
together with Losses (as that term is defined in the Applicable
Agreements) for which the Seller or Bankmont is obligated to indemnify
the Purchaser Indemnitees (as defined in the Xxxxxx Purchase Agreement)
pursuant to Section 7.1(a) of the Xxxxxx Purchase Agreement and the
Company Indemnitees (as defined in the Xxxxxx Contribution Agreement and
the Bankmont Contribution Agreement) pursuant to Section 7.1(a) of the
Xxxxxx Contribution Agreement or Section 5.1 (a) of the Bankmont
Contribution Agreement, without duplication, exceed $100,000 in the
aggregate), (b) any failure or breach by the Seller of any covenant,
obligation, or undertaking made by the Seller in this Agreement or (c)
the Retained Liabilities, in each such case, except to the extent that
any such Losses were caused by any such Indemnified Party's gross
negligence or willful misconduct.
Section 7.2. Indemnity by the Purchaser. The Purchaser agrees to
indemnify and hold the Seller, and its affiliates, employees, officers,
directors, controlling persons, successors and assigns (the "Seller
Indemnitees"), harmless from and with respect to any and all Losses
related to or arising directly or indirectly out of (a) any inaccuracies
in any representation or warranty made by the Purchaser in this Agreement
(but only to the extent that Losses relating to or arising directly or
indirectly out of such inaccuracies when taken together with Losses (as
that term is defined in the Applicable Agreements) for which Purchaser
and/or the Company are obligated to indemnify the Seller Indemnitees (as
defined in the Xxxxxx Purchase Agreement and the Xxxxxx Contribution
Agreement) pursuant to Section 7.2(a) of the Xxxxxx Purchase Agreement
and the Xxxxxx Contribution Agreement and/or the Investor Indemnitees (as
defined in the Bankmont Contribution Agreement) pursuant to Section
5.2(a) of the Bankmont Contribution Agreement, without duplication,
exceed $100,000 in the aggregate), (b) any failure or breach by the
Purchaser of any covenant, obligation or undertaking made by the
Purchaser in this Agreement (including without limitation any failure by
the Purchaser to pay or perform any of the Assumed Obligations), (c) the
collection of the Overdue Receivables by the Purchaser after the Closing
Date, or (d) the Assumed Obligations, in each case, except to the extent
that any such Losses are caused by any such Indemnified Party's gross
negligence or willful misconduct.
Section 7.3. Claims. (a) Any party seeking indemnification hereunder
(the "Indemnified Party") shall promptly notify the party hereto
obligated to provide indemnification hereunder (the "Indemnifying Party")
of any action, suit, proceeding, demand or breach (a "Claim") with
respect to which the Indemnified Party claims indemnification hereunder,
provided that failure of the Indemnified Party to give such notice shall
not relieve the Indemnifying Party of its obligations under this Article
7 except to the extent, if at all, that such Indemnifying Party shall
have been prejudiced thereby. If such Claim relates to any action, suit,
proceeding or demand instituted against the Indemnified Party by a third
party (a "Third Party Claim"), then upon receipt of such notice from the
Indemnified Party the Indemnifying Party shall be entitled to participate
in the defense of such Third Party Claim, and if and only if each of the
following conditions is satisfied, the Indemnifying Party may assume the
defense of such Third Party Claim, and in the case of such an assumption
the Indemnifying Party shall have the authority to negotiate, compromise
and settle such Third Party Claim:
(i) the Indemnifying Party confirms in writing that it is
obligated hereunder toindemnify the Indemnified Party with respect to
such Third Party Claim; and
(ii) there is no conflict of interest which would make
separate representatibly the Indemnified Party's own counsel advisable.
The Indemnified Party shall retain the right to employ its own counsel
and to participate in the defense of any Third Party Claim, the defense
of which has been assumed by the Indemnifying Party pursuant hereto, but
the Indemnified Party shall bear and shall be solely responsible for its
own costs and expenses in connection with such participation. The
Indemnifying Party shall not, without the prior written consent of the
Indemnified Party, settle or compromise any claim or consent to the entry
of any judgment that does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to the Indemnified Party a
release from all liability in respect of such claim.
(b) In the event of any Claim under Section 7.1 or 7.2, the
Indemnified Party shall advise the Indemnifying Party in writing of the
amount and circumstances surrounding such Claim.
Section 7.4. Time Limits. No claim for indemnification under this
Article 7 may be asserted for the first time after June 30, 1999.
Section 7.5. Exclusive Remedy; Damage Limitations. The Seller and
the Purchaser acknowledge and agree that, except for the right to seek
specific performance of covenants and other agreements, the
indemnification rights and remedies available to each party under this
Article 7 shall be the sole and exclusive rights and remedies of the
Purchaser and the Seller with respect to any Losses arising out of or
relating in any way to (a) any breach of this Agreement, (b) the
acquisition of the Overdue Receivables and the assumption of the Assumed
Obligations by the Purchaser, or (c) the consummation of the transactions
contemplated hereby (collectively, the "Subject Losses"), including
without limitation any claims, rights or remedies for negligent
misrepresentation but excluding specifically, any claims, rights or
remedies for fraud. Without limiting the generality of the foregoing,
except for remedies for fraud and as specifically authorized by this
Article 7, the Purchaser and the Seller hereby waive, release and
disclaim any claims, rights or remedies arising in tort, by statute, or
otherwise, with respect to the Subject Losses. As provided in Section
9.6, in no event shall the Purchaser or the Seller be entitled to recover
from the other party hereto for incidental, special, consequential,
exemplary or punitive damages, and for all purposes of this Agreement,
the term "Losses" shall be deemed not to include any such damages.
Seller's maximum aggregate liability, and the right of recovery of the
Purchaser Indemnitees against the Seller under this Article 7 for Losses,
arising as a result of breaches of the Seller Indemnity Representations
contained herein shall, in all events, other than fraud by Seller, be
limited in the aggregate to $5,900,000 less all amounts paid by Seller
under Article 7 of the respective Applicable Agreements as a result of
breaches by Seller of the Seller Indemnity Representations (as that term
is defined in the respective Applicable Agreements). Purchaser's maximum
aggregate liability, and the right of recovery of the Seller Indemnitees
against the Purchaser under this Article 7 for Losses arising as a result
of breaches of the Purchaser Indemnity Representations contained herein
shall, in all events other than fraud by the Purchaser, be limited in the
aggregate to $5,900,000 less all amounts paid by the Purchaser and/or the
Company under the Applicable Agreements as a result of breaches by the
Company and/or the Purchaser of the Purchaser Indemnity Representations
and the Company Indemnity Representations (as such terms are defined in
the respective Applicable Agreements).
ARTICLE 8
ITEMS TO BE DELIVERED AT CLOSING
Section 8.1. Items to be Delivered by Seller. Seller shall deliver to
Purchaser:
(a) Such bills of sale, assignments, UCC-1 forms, and other
instruments documents duly executed and in full force and effect
with respect to Seller as Purchaser may reasonably require as
necessary or desirable for transferring, assigning and
conveying title to the Overdue Receivables to Purchaser, all
in form and substance reasonably satisfactory to Purchaser;
(b) The Initial Closing Statement; and
(c) Such other documents as Purchaser may reasonably request.
Section 8.2. Items to Be Delivered by Purchaser. Purchaser
shall deliver to Seller:
(a) An Assignment and Assumption Agreement duly executed and
in full force and effect with respect to Purchaser;
(b) Payment of the Estimated Purchase Price stated on the Initial
Closing Statement by wire transfer of funds immediately available in
Chicago, Illinois; and
(c) Such other documents as Seller may reasonably request.
ARTICLE 9
GENERAL
Section 9.1. Disputes. In the event of any dispute or disagreement
between the parties after the Closing Date, either with respect to the
interpretation of any provision of this Agreement or with respect to the
performance or nonperformance by any party hereto, upon the written
request of any party, corporate executives of Seller and Purchaser shall
attempt to resolve any such dispute.
Section 9.2. Notices. All notices, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given
if delivered personally or if mailed by certified mail, return receipt
requested, postage prepaid or if sent by overnight courier or sent by
written facsimile with answerback confirmed, as follows:
If to the Seller: Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Senior Vice President
and U.S. General Counsel
with a copy to: Bank of Montreal
3300 Bloor Street West
12th Floor, West Tower
Toronto, Ontario Canada
M8X 2X2
Attention: Xx. Xxxxxx X. Xxxxxx
with a copy sent Xxxxxxx and Xxxxxx
contemporaneously to: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
If to the Purchaser: Partners First Receivables, LLC
000 Xxxxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
with a copy sent Partners First Receivables, LLC
contemporaneously to: 000 Xxxxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Any such communication shall be deemed to have been received (i)
when delivered, if personally delivered, or sent by nationally recognized
overnight courier or sent via facsimile or (ii) on the third Business Day
following the date on which the piece of mail containing such
communication is posted, if sent by certified mail.
Section 9.3Entire Agreement. This Agreement (including the Exhibits
(including the Assignment and Assumption Agreement dated of even date
herewith (the "Assignment") between the parties hereto) and Schedules
hereto) and the letter agreement dated of even date herewith (the
"Letter") among the Company, the Seller and BankBoston (NH), National
Association, a national banking association (this Agreement, the
Assignment and the Letter Being, collectively, the "Receivables
Agreements") contains the entire understanding of the parties hereto, and
supersedes all prior agreements and understandings relating to the
subject matter hereof; and further, provided that nothing contained in
this Agreement, the Assignment or the Letter shall be deemed in any
manner to amend, modify, revise or otherwise change or supersede any of
the terms or provisions of any of the other Receivables Agreements. This
Agreement shall not be amended except by a written instrument hereafter
signed by the authorized officers of all of the parties hereto. No waiver
of any provision of this Agreement shall be effective unless evidenced by
a written instrument signed by the waiving party. Each of the parties
hereto further acknowledges and agrees that, in entering into this
Agreement, it has not in any way relied upon any oral or written
agreements, statements, promises, information, arrangements,
understandings, representations or warranties, express or implied, not
specifically set forth in this Agreement.
Section 9.4. Governing Law. This Agreement shall be governed by,
and construed and enforced in accordance with, the laws of the State of
Delaware without regard to its conflict of laws rules.
Section 9.5. Consent to Jurisdiction. Each of the parties hereto
agrees that any suit, action or proceeding instituted against such party
under or in connection with this Agreement may be brought in a court of
competent jurisdiction in State of Delaware. By execution hereof, each
party hereto irrevocably waives any objection to, and any right of
immunity on the grounds of, improper venue, the convenience of the forum,
the personal jurisdiction of such courts or the execution of judgments
resulting therefrom. Each party hereto hereby irrevocably accepts and
submits to the jurisdiction of such courts in any such action, suit or
proceeding.
Section 9.6. Waiver of Certain Damages. Each of the parties hereto
irrevocably waives, to the fullest extent permitted by law, any rights
that it may have to punitive, incidental, special, exemplary or
consequential damages in respect of any litigation based upon, or arising
out of, this Agreement or any course of conduct, course of dealing,
statements or actions of any of the parties hereto relating thereto.
Section 9.7. Section and Subsection Headings. The headings of
sections and subsections are for reference only and shall not limit or
control the meaning thereof.
Section 9.8. Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns. Neither this Agreement nor the
obligations of any party hereunder shall be assignable or transferable by
any party without the prior written consent of the other party hereto.
Section 9.9. No Implied Rights or Remedies. Except as otherwise
expressly provided herein, nothing herein expressed or implied is
intended or shall be construed to confer upon or to give any Person,
except the parties hereto, any rights or remedies under or by reason of
this Agreement.
Section 9.10. Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
Section 9.11. Construction. The language used in this Agreement
will be deemed to be the language chosen by the parties hereto to express
their mutual intent, and no rule of strict construction will be applied
against any party hereto.
Section 9.12. Severability. The invalidity or unenforceability of
any particular provision of this Agreement shall not affect the other
provisions hereof, and this Agreement shall be construed in all respects
as if such invalid or unenforceable provision were omitted.
Section 9.13. Survival. The representations, warranties and
covenants of the parties hereto shall survive indefinitely, unless
otherwise specified therein.
Section 9.14. WAIVER OF RIGHT TO JURY TRIAL. EACH OF THE PARTIES
HERETO HEREBY WAIVES ITS RIGHTS TO A TRIAL BY JURY IN ANY LITIGATION IN
ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF, THIS
AGREEMENT, OR THE VALIDITY, INTERPRETATION OR ENFORCEMENT HEREOF OR
THEREOF OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 9.15. Remedies. Each party hereto will be entitled to
enforce its rights under this Agreement specifically (without posting a
bond or other security), to recover damages by reason of any breach of
any provision of this Agreement and to exercise all other rights existing
in their favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that either party may in its sole discretion apply to
any court of law or equity of competent jurisdiction for specific
performance and/or injunctive relief in order to enforce or prevent any
violation of the provisions of this Agreement. In the event of any
dispute involving the terms of this Agreement, the prevailing party shall
be entitled to collect reasonable fees and expenses incurred by the
prevailing party in connection with such dispute from the other parties
to such dispute.
ARTICLE 10
CHARGEBACKS
Seller shall retain all right, title and interest in claims against
or payments from merchants in respect of amounts that were charged back
through Visa(R) or MasterCard(R) by Seller prior to the Closing Date or
will be charged back after the Closing Date in each case in respect to
which Seller had credited the affected Overdue Receivables prior to the
Closing Date (the "Chargeback Amount"). In the event any such payment
with respect to such Chargeback Amount is received by Purchaser, such
amount shall be promptly paid to Seller. After the Closing Date,
Purchaser shall have all right, title and interest in claims against or
payments from merchants in respect of all amounts in connection with the
Overdue Accounts that were charged back through the systems of Visa(R) or
MasterCard(R) by Seller prior to the Closing Date and in respect to which
Seller had not credited the affected Overdue Receivables prior to the
Closing Date; provided, however, that if the merchant refuses to pay such
Chargeback Amount because of any act or omission of Seller in violation
of applicable rules of Visa(R) or MasterCard(R), Seller shall promptly
pay Purchaser such amount and Purchaser shall assign to Seller any and
all rights Purchaser may have against the merchant. Purchaser shall have
all right, title and interest in all claims against or payment from
merchants in respect of all amounts in connection with the Overdue
Accounts that are charged back through the systems of Visa(R) or
MasterCard(R) after the Closing Date and in respect to which the affected
Overdue Account had not been credited prior to the Closing Date, and in
the event that any such payment is received by Seller, such amount shall
be promptly paid by Seller to Purchaser.
In the event either party hereto receives, or otherwise has
possession of, documents which the other party needs in order to pursue a
chargeback claim, the party which has such documents shall send such
documents to the other party within five (5) Business Days after written
request therefore.
Anything contained in this Agreement to the contrary
notwithstanding, all amounts received with respect to any Overdue Account
after the Closing Date not in excess of the amount (if any) of the
Chargeback Amount with respect to such Overdue Account shall belong to
Seller and, if received by Purchaser after the Closing Date, shall be
promptly paid to Seller. Seller may retain any such amounts received by
it after the Closing Date.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have caused this Overdue Receivables Purchase and Sale
Agreement to be duly executed and delivered as a sealed instrument as of
the date and year first above written.
XXXXXX TRUST AND SAVINGS BANK
By /s/ Xxxxxxxx X. Xxxxx
_____________________________
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
PARTNERS FIRST RECEIVABLES, LLC
By /s/ Xxxx X. Xxxxxxxxx
_____________________________
Name: Xxxx X. Xxxxxxxxx
Title: President and Chief
Executive Officer
SCHEDULE 2.1
OVERDUE ACCOUNTS
TAPE TO BE SUPPLIED BY XXXXXX.
SCHEDULE 4.6
LITIGATION
NONE
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS.........................................................1
Section 1.1. Certain Defined Terms. ...................1
ARTICLE 2
SALE OF ASSETS......................................................4
Section 2.1. Overdue Receivables.......................4
Section 2.2. Excluded Assets...........................4
Section 2.3 Secured Accounts..........................5
ARTICLE 3
ASSUMPTION OF OBLIGATIONS...........................................5
Section 3.1. Assumption of Obligations.................5
Section 3.2. Consideration.............................5
Section 3.3. Payment of Purchase Price.................5
Section 3.4. Post-Closing Adjustments..................6
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE SELLER........................6
Section 4.1. Organization..............................6
Section 4.2. Authority; Enforceability.................6
Section 4.3. No Conflicts..............................7
Section 4.4. Ownership of Assets.......................7
Section 4.5. Cardholder Agreements.....................7
Section 4.6. Litigation................................7
Section 4.7. Overdue Receivables.......................7
Section 4.8. Compliance with Applicable Law............8
Section 4.9. Licensed to Carry on Credit Card Business.8
Section 4.10. Account Records..........................8
Section 4.11. Brokers..................................8
Section 4.12. Permits, Etc.............................8
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.....................8
Section 5.1. Organization..............................8
Section 5.2. Authority; Enforceability.................9
Section 5.3. No Conflicts..............................9
Section 5.4. Permits, Etc..............................9
Section 5.5. Litigation................................9
Section 5.6. Finders or Brokers........................9
ARTICLE 6
CERTAIN TRANSITIONAL MATTERS........................................9
Section 6.1. Third Party Consents......................9
Section 6.2. Responsibility for Pre-Closing
Transactions............................10
Section 6.3. Business Records.........................10
Section 6.4. Further Assistance.......................10
ARTICLE 7
INDEMNIFICATION....................................................10
Section 7.1. Indemnity by the Seller..................10
Section 7.2. Indemnity by the Purchaser...............11
Section 0.0.Xxxxxx....................................11
Section 7.4. Time Limits..............................12
Section 7.5. Exclusive Remedy; Damage Limitations.....12
ARTICLE 8
ITEMS TO BE DELIVERED AT CLOSING...................................13
Section 8.1. Items to be Delivered by Seller.........13
Section 8.2. Items to Be Delivered by Purchaser......13
ARTICLE 9
GENERAL............................................................13
Section 9.1. Disputes................................13
Section 9.2. Notices.................................13
Section 9.3. Entire Agreement........................14
Section 9.4. Governing Law...........................15
Section 9.5. Consent to Jurisdiction.................15
Section 9.6. Waiver of Certain Damages...............15
Section 9.7. Section and Subsection Headings.........15
Section 9.8. Assigns.................................15
Section 9.9. No Implied Rights or Remedies...........15
Section 9.10. Counterparts...........................16
Section 9.11. Construction...........................16
Section 9.12. Severability...........................16
Section 9.13. Survival...............................16
Section 9.14. WAIVER OF RIGHT TO JURY TRIAL..........16
Section 9.15. Remedies...............................16
ARTICLE 10
CHARGEBACKS........................................................16
Schedules
Schedule 2.1 - Overdue Accounts
Schedule 4.6 - Litigation
