ASSIGNMENT AND ASSUMPTION AGREEMENT dated January 29, 1998,
between Partners First Receivables, LLC, a Delaware limited liability
company (the "Company"), and BankBoston (NH), National Association, a
national banking association organized under the laws of the United
States (the "Bank").
WHEREAS, the Company and the Bank have entered into a certain
Receivables Purchase and Sale Agreement, dated as of January 29, 1998
(the "Receivables Purchase Agreement");
WHEREAS, the Receivables Purchase Agreement contemplates that
on the date hereof (a) the Bank shall assign and transfer to the Company
all of its right, title and interest in, to and under the Accounts
Receivables (other than the Excluded Accounts and the Excluded Assets)
(as defined in the Receivables Purchase Agreement) and (b) the Company
shall assume the Assumed Obligations (as defined in the Receivables
Purchase Agreement);
WHEREAS, the Company and the Bank have entered into a certain
Overdue Receivables Purchase and Sale Agreement, dated as of January 29,
1998 (the "Overdue Receivables Purchase Agreement" and, together with the
Receivables Purchase Agreement, the "Closing Date Receivables Purchase
Agreements");
WHEREAS, the Overdue Receivables Purchase Agreement
contemplates that on the date hereof (a) the Bank shall assign and
transfer to the Company all of its right, title and interest in, to and
under the Overdue Receivables (other than the Excluded Accounts and
Excluded Assets) (as defined in the Overdue Receivables Purchase
Agreement) and (b) the Company shall assume the Assumed Obligations (as
defined in the Overdue Receivables Purchase Agreement).
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
Transfer of Accounts Receivables
1. Defined Terms. The capitalized terms used in this Article
I but not otherwise defined in this Agreement shall have the respective
meanings assigned to them in the Receivables Purchase Agreement.
2. Assignment of the Accounts Receivable. As of the date
hereof, the Bank hereby sells, assigns, transfers, sets over and
otherwise conveys to the Company, all of the Bank's right, title and
interest in, to and under all the Accounts Receivable (other than the
Excluded Accounts and the Excluded Assets).
3. Assumption of the Assumed Obligations. Subject to the
terms of the Receivables Purchase Agreement, as of the date hereof, the
Company hereby assumes and agrees to pay, perform, fulfill and discharge
the Assumed Obligations from and after the date hereof.
4. Intent of Parties. The parties hereto intend that the
conveyance of the Bank's right, title and interest in and to the Accounts
Receivable shall constitute an absolute sale, conveying good title free
and clear of any liens, claims, encumbrances or rights of others from the
Bank to the Company and that the Accounts Receivable shall not be a part
of the Bank's estate in the event of the insolvency of the Bank or a
conservatorship, receivership or similar event with respect to the Bank.
It is the intention of the parties hereto that the arrangements with
respect to the Accounts Receivable shall constitute a purchase and sale
of such Accounts Receivable 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 Bank shall be deemed to have granted
and does hereby grant to the Company a first priority perfected security
interest, in all of the Bank's right, title and interest, whether now
owned or hereafter acquired, in, to and under the Accounts Receivable to
secure the rights of the Company hereunder and the obligations of the
Bank hereunder.
ARTICLE II
Transfer of Overdue Receivables
1. Defined Terms. The capitalized terms used in this Article
II but not otherwise defined in this Agreement shall have the respective
meanings assigned to them in the Overdue Receivables Purchase Agreement.
2. Assignment of the Overdue Receivables. As of the date
hereof, the Bank hereby sells, assigns, transfers, sets over and
otherwise conveys to the Company, all of the Bank's right, title and
interest in, to and under all the Overdue Receivables (other than the
Excluded Accounts and the Excluded Assets).
3. Assumption of the Assumed Obligations. Subject to the
terms of the Overdue Receivables Purchase Agreement, as of the date
hereof, the Company hereby assumes and agrees to pay, perform, fulfill
and discharge the Assumed Obligations from an after the date hereof.
4. Intent of Parties. The parties hereto intend that the
conveyance of the Bank'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
Bank to the Company and that the Overdue Receivables shall not be a part
of the Bank's estate in the event of the insolvency of the Bank or a
conservatorship, receivership or similar event with respect to the Bank.
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 Bank shall be deemed to have granted
and does hereby grant to the Company a first priority perfected security
interest, in all of the Bank's right, title and interest, whether now
owned or hereafter acquired, in, to and under the Overdue Receivables to
secure the rights of the Company hereunder and the obligations of the
Bank hereunder.
ARTICLE III
Representations and Warranties
1. Defined Terms. The capitalized terms used in this Article
III but not otherwise specifically defined in this Agreement (without
reference to any other agreement) shall have the respective meanings
assigned to them in the Receivables Purchase Agreement, dated as of
January 29, 1998, between the Bank and the Company, relating to
Receivables generated after the date hereof.
2. Representations and Warranties of the Bank Relating to the
Bank. The Bank hereby represents and warrants to, and agrees with, the
Company as of the Closing Date that:
(a) Organization and Good Standing. The Bank is a national
banking association 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 presently owned or conducted, and to execute, deliver and perform its
obligations under this Agreement and the Closing Date Receivables
Purchase Agreements.
(b) Due Qualification. The Bank is duly qualified to do
business and is in good standing as a national banking association (or is
exempt from such requirements) and has obtained all necessary licenses
and approvals, in each jurisdiction which requires such qualification
except where the failure to so qualify or obtain licenses or approvals
would not (i) render any Account or any Receivable unenforceable by the
Bank, the Company, the Transferor or the Trustee or (ii) have a material
adverse effect on the Certificateholders.
(c) Due Authorization. The execution, delivery and
performance of this Agreement and the Closing Date Receivables Purchase
Agreements and any other document or instrument delivered pursuant hereto
or thereto, including any supplemental conveyance (such other documents
or instruments, collectively, the "Conveyance Papers"), and the
consummation of the transactions provided for in this Agreement, the
Closing Date Receivables Purchase Agreements and the Conveyance Papers
have been duly authorized by the Bank by all necessary corporate action
on the part of the Bank.
(d) No Conflict. The execution and delivery of this
Agreement, the Closing Date Receivables Purchase Agreements and the
Conveyance Papers by the Bank, the performance of the transactions
contemplated by this Agreement, the Closing Date Receivables Purchase
Agreements and the Conveyance Papers, and the fulfilment of the terms of
this Agreement, the Closing Date Receivables Purchase Agreements and the
Conveyance Papers will not conflict with, violate or result in any breach
of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, any indenture,
contract, agreement, mortgage, deed of trust, or other instrument to
which the Bank is a party or by which it or any of its properties are
bound which would have a material adverse effect on the Bank's ability to
perform its obligations hereunder or thereunder.
(e) No Violation. The execution, delivery and performance of
this Agreement, the Closing Date Receivables Purchase Agreements and the
Conveyance Papers by the Bank and the fulfillment of the terms
contemplated herein and therein applicable to the Bank will not conflict
with or violate any Requirements of Law applicable to the Bank in a
manner which would have a material adverse effect on the Bank's ability
to perform its obligation hereunder or thereunder.
(f) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Bank, threatened
against the Bank, before any Governmental Authority (i) asserting the
invalidity of this Agreement, the Closing Date Receivables Purchase
Agreements or the Conveyance Papers, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement,
the Closing Date Receivables Purchase Agreements or the Conveyance
Papers, (iii) seeking any determination or ruling that, in the reasonable
judgment of the Bank, would materially and aversely affect the
performance by the Bank of its obligations under this Agreement, the
Closing Date Receivables Purchase Agreements or the Conveyance Papers,
(iv) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement, the
Closing Date Receivables Purchase Agreements 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 the Bank in
connection with the execution and delivery by the Bank of this Agreement,
the Closing Date Receivables Purchase Agreements and the Conveyance
Papers and the performance of the transactions contemplated by this
Agreement, the Closing Date Receivables Purchase Agreements or the
Conveyance Papers by the Bank have been duly obtained, effected or given
and are in full force and effect.
The representations and warranties set forth in this Article
III, Section 2 shall survive the transfer and assignment of the
Receivables to the Company. Upon discovery by the Bank or the Company of
a breach of any of the foregoing representations and warranties, the
party discovering such breach shall given written notice to the other
party within three (3) Business Days following such discovery.
3. Representations and Warranties of the Bank Relating to the
Agreement and the Receivables. The Bank hereby represents and warrants to
the Company as of the Closing Date that:
(i) each of this Agreement and the Closing Date Receivables
Purchase Agreements constitutes a legal, valid and binding obligation of
the Bank enforceable against the Bank in accordance with its terms,
except as such enforceability may be limited by receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally, as well as by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally from time to time in effect or general principles of
equity;
(ii) as of the Initial Cut-Off Date, Schedule 2.1 to each of
the Closing Date Receivables Purchase Agreement as supplemented to such
date, contains an accurate and complete listing in all material respects
of all the Eligible Accounts as of the Initial Cut-Off Date and the
information contained therein with respect to the identity of such
Eligible Accounts and the Receivables existing thereunder is true and
correct in all material respects as of the Initial Cut-Off Date and as of
the Closing Date, the aggregate amount of Receivables in all the Initial
Accounts was $1,210,185,564.00, of which $1,189,789,333.00 were Principal
Receivables;
(iii) each Receivable has been conveyed to the Company free
and clear of any Lien of any Person claiming through or under the Bank or
any of its other Affiliates (other than Liens permitted under subsection
2.7(b) of the Pooling and Servicing Agreement);
(iv) all authorizations, consents, orders or approvals or
registrations or declarations with any Governmental Authority required to
be obtained, effected or given by the Bank in connection with the
conveyance of Receivables to the Company have been duly obtained,
effected or given and are in full force and effect;
(v) each of the Closing Date Receivables Purchase Agreements
constitutes a valid sale, transfer and assignment to the Company of all
right, title and interest of the Bank in the Receivables and the proceeds
thereof and the Interchange payable pursuant to the Closing Date
Receivables Purchase Agreements and the Recoveries payable pursuant to
the Closing Date Receivables Purchase Agreements or, if either of the
Closing Date Receivables Purchase Agreements does not constitute a sale
of such property, it constitutes a grant of a first priority perfected
"security interest" (as defined in the UCC) in such property to the
Company, which, in the case of existing Receivables and the proceeds
thereof and said Recoveries and Interchange, is enforceable upon
execution and delivery of the appropriate Closing Date Receivables
Purchase Agreement, and which will be enforceable with respect to such
Receivables hereafter and thereafter created and the proceeds thereof
upon such creation. Upon the filing of the financing statements and, in
the case of Receivables hereafter created and the proceeds thereof, upon
the creation thereof, the Company shall have a first priority perfected
security or ownership interest in such property and proceeds;
(vi) on the Initial Cut-Off Date, each Account designated as
an Eligible Account on Schedule I to each of the Closing Date Receivables
Purchase Agreements is an Eligible Account;
(vii) on the Initial Cut-Off Date, each Receivable then
existing and designated as an Eligible Receivable on Schedule I to each
of the Closing Date Receivables Purchase Agreements is an Eligible
Receivable; and
(viii)no Insolvency Event with respect to the Bank has
occurred nor has the transfer of the Receivables arising in the Accounts
to the Company been made in contemplation of the occurrence thereof.
4. The representations and warranties set forth in this
Article III, Section 3 shall survive the transfer and assignment of the
Receivables to the Company. Upon discovery by either the Bank or the
Company of a breach of any of the representations and warranties set
forth in this Article III, Section 3, the party discovering such breach
shall give written notice to the other party 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. The
Bank hereby acknowledges that the Company intends to rely on the
representations hereunder in connection with the representations made by
the Company to secured parties, assignees or subsequent transferees
including but not limited to assignments made by the Company to the
Transferor pursuant to the Transferor Purchase Agreement.
5. Nonpetition Covenant. The Bank hereby covenants and agrees
that prior to the date which is one year and one day after the payment in
full of all Investor Certificates of all Series, it will not institute
against or join any other person in instituting against the Company any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under the laws of the United
States or any state of the United States.
ARTICLE IV
Miscellaneous
1. Closing Date Receivables Purchase Agreements. This
Agreement has been executed and delivered pursuant to the Closing Date
Receivables Purchase Agreements and is subject to the provisions of
Article IX thereof (other than Section 9.6 thereof), which are hereby
incorporated herein; provided, however that for purposes of this
Agreement references to "Agreement" under such Article IX shall be deemed
to mean this Agreement.
2. Interpretation. None of the terms and provisions contained
herein shall be deemed in any manner to amend, modify, revise or
otherwise change or supersede any of the terms or provisions of the
Closing Date Receivables Purchase Agreements.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by a duly authorized officer of each party hereto as of the
date first above written.
PARTNERS FIRST RECEIVABLES, LLC
By: /s/ Xxxx X. Xxxxxxxxx
____________________________
Namee: Xxxx X. Xxxxxxxxx
Title: President and Chief
Executive Officer
BANKBOSTON (NH), NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Parent
____________________________
Name: Xxxxxxx X. Parent
Title: Authorized Officer
