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Exhibit 4.8
EXECUTION COPY
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ASSOCIATES CREDIT CARD MASTER NOTE TRUST
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AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
between
ASSOCIATES CREDIT CARD SERVICES, INC.
and
ASSOCIATES CREDIT CARD RECEIVABLES CORP.
Dated as of April 1, 2000
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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 ACCS Relating to ACCS...................................12
Section 4.02. Representations and Warranties of ACCS Relating to the Agreement and the Receivables......13
Section 4.03. Representations and Warranties of ACCR....................................................14
ARTICLE V
COVENANTS
Section 5.01. Covenants of ACCS.........................................................................16
Section 5.02. Covenants of ACCS with Respect to Receivables Purchase Agreements.........................17
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables....................................................18
Section 6.02. Reassignment..............................................................................18
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ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to ACCR's Obligations Regarding Initial Receivables............................20
Section 7.02. Conditions Precedent to ACCS'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 ACCS.....................................................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
EXHIBIT A FORM OF SUPPLEMENTAL CONVEYANCE..........................................................A-1
Schedule 1 LIST OF ACCOUNTS.........................................................................I-1
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AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as
of April 1, 2000, by and between ASSOCIATES CREDIT CARD RECEIVABLES CORP., a
Delaware corporation ("ACCR"), and ASSOCIATES CREDIT CARD SERVICES, INC., a
Delaware corporation ("ACCS").
W I T N E S S E T H:
WHEREAS, ACCR desires to purchase, from time to time, certain
Receivables (hereinafter defined) sold to ACCS by Associates National Bank
(Delaware) ("ANB") and arising under certain credit card accounts of ANB;
WHEREAS, ACCR may in the future desire to purchase, from time
to time, certain Receivables sold to ACCS by another Account Owner (hereinafter
defined) and arising under certain credit card accounts of such Account Owner;
WHEREAS, ACCS desires to sell and assign, from time to time,
certain Receivables to ACCR upon the terms and conditions hereinafter set forth;
WHEREAS, it is contemplated that the Receivables purchased
hereunder will be transferred by ACCR to the Trust (hereinafter defined) in
connection with the issuance of certain Securities (hereinafter defined); and
WHEREAS, ACCS agrees that all representations, warranties,
covenants and agreements made by ACCS herein with respect to the Accounts
(hereinafter defined) and Receivables shall also be for the benefit of 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 ACCR and
ACCS as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. All capitalized terms used herein
or in any certificate, document, or Conveyance Paper 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; 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 ACCR by ACCS 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 ACCR hereunder, (y) the
right, title and interest of ACCR in the Receivables in which are reassigned to
ACCS 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 Affiliate 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 it's permitted successors and assigns.
"ACCS" shall mean Associates Credit Card Services, Inc., a
Delaware corporation, and its successors and permitted assigns.
"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 ACCR by ACCS
pursuant to Sections 2.01 and 2.05.
"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.
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"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 "ACCS" shall be substituted for
each occurrence of "Transferor," "ACCR" 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.
"Insolvency Event" shall have the meaning specified in Section
8.02.
"Interchange" shall mean interchange fees payable to an
Account Owner, in its capacity as credit card issuer, through VISA or MasterCard
in connection with cardholder charges for goods and services with respect to the
Accounts, as calculated pursuant to the related Indenture Supplement for any
Series.
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"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 ACCR by ACCS
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 the Servicer'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. Unless the context otherwise requires (whether or not there is a
specific reference to the underlying receivable), any reference in this
Agreement or any Supplemental Conveyance to a Receivable (including any
Principal Receivable, Finance Charge Receivable or Defaulted Receivable) and any
Collections thereon or other amounts recoverable with respect thereto shall
refer to only the fractional interest that is transferred from an Account Owner
to ACCS pursuant to a Receivables Purchase Agreement in the amounts paid or
payable by Obligors on the Accounts, which fractional interest may be less than
a 100% fractional interest therein, and which fractional interest may exclude
certain types of Receivables. Any reference in this Agreement to the "underlying
receivable" with respect to a Receivable shall refer to the receivable in which
such Receivable represents an undivided interest.
"Receivables Purchase Agreements" shall mean the receivables
purchase agreement between ANB and ACCS, dated April 1, 2000, as the same may be
amended, supplemented or otherwise modified from time to time, and includes any
receivables purchase agreement, substantially in the form of such agreement,
entered into between ACCS and another Account Owner in the future, if any.
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"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).
"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.
[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, ACCS does hereby sell,
transfer, assign, set over and otherwise convey to ACCR (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"). ACCS does hereby
further transfer, assign, set over and otherwise convey to ACCR all of its
right, title and interest in and under the Receivables Purchase Agreements.
(b) In connection with such Conveyance, ACCS 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 ACCS to ACCR, (ii) that such financing statements shall
name ACCS, as seller, and ACCR, as purchaser, of the Receivables and (iii) to
deliver a file-stamped copy of such financing statements or other evidence of
such filings to ACCR as soon as is practicable after filing.
(c) In connection with such Conveyance, ACCS 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 ACCR in accordance with this Agreement and have
been conveyed by ACCR to the Trust pursuant to the Transfer and Servicing
Agreement and have been pledged by the Trust to the Indenture Trustee pursuant
to the Indenture for the benefit of the Noteholders by including (or that, in
the case of Removed Accounts, newly originated Receivables in such Accounts have
been reassigned 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 ACCR 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
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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 marked as SCHEDULE 1 to this Agreement, shall be
delivered to ACCR, 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 ACCS'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 ACCS to ACCR. 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 ACCS shall be deemed to have granted and does hereby
grant to ACCR a first priority perfected security interest, in all of ACCS'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 ACCS hereunder.
Section 2.02. Addition of Aggregate Addition Accounts.
(a) If, from time to time, ACCR becomes obligated to designate
Aggregate Addition Accounts (as such term is defined in the Transfer and
Servicing Agreement) pursuant to subsection 2.09(a) of the Transfer and
Servicing Agreement, then ACCR may, at its option, give ACCS 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 ACCS shall on or
before the Addition Date, designate sufficient Eligible Accounts to be included
as Additional Accounts so that after the inclusion thereof ACCR will be in
compliance with the requirements of said subsection 2.09(a). Additionally,
subject to subsections 2.09(b) and (c) of 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 ACCR
and ACCS. In either event, ACCS shall have sole responsibility for selecting the
Aggregate Addition Accounts.
(b) On the Addition Date with respect to any designation of
Aggregate Addition Accounts, ACCR shall purchase ACCS's right, title and
interest in, to and under the Receivables in 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:
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(i) all Aggregate Addition Accounts shall be Eligible
Accounts;
(ii) ACCS shall have delivered to ACCR copies of UCC-1
financing statements covering such Aggregate Addition Accounts, if necessary to
perfect ACCR's interest in the Receivables arising therein;
(iii) to the extent required of ACCR by Section 2.09(c) of the
Transfer and Servicing Agreement, ACCS shall have deposited in the Collection
Account (as such term is defined in the Indenture) 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 ACCS shall have occurred nor
shall the transfer of the Receivables arising in the Aggregate Addition Accounts
to ACCR 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) ACCS shall have delivered to ACCR 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 ACCR will not result in an Adverse Effect and, in the case
of Aggregate Addition Accounts, ACCS shall have delivered to ACCR an Officer's
Certificate, dated the Addition Date, stating that ACCS reasonably believes that
the transfer of the Receivables arising in the Aggregate Addition Accounts to
ACCR will not have an Adverse Effect.
Section 2.03. Addition of New Accounts.
(a) Upon the mutual agreement of ACCR and ACCS, subject to
compliance by ACCS with subsection 2.03(b), ACCS 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. ACCS shall cooperate with
ACCR to enable ACCR to comply with the requirements of Section 2.09 of the
Transfer and Servicing Agreement and shall cooperate with ACCR to enable ACCR to
perform with respect to the Receivables in such New Accounts all actions
specified in subsections 2.09(d) and (e) of the Transfer and Servicing
Agreement.
(b) On the Addition Date with respect to any New Accounts,
ACCR shall purchase ACCS'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 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;
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(ii) ACCS shall have delivered to ACCR copies of UCC-1
financing statements covering such New Accounts, if necessary to perfect ACCR's
interest in the Receivables arising therein;
(iii) to the extent required of ACCR by Section 2.09(e) of the
Transfer and Servicing Agreement, ACCS shall have deposited in the Collection
Account all Collections with respect to such New 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, or ACCS shall have occurred nor shall the transfer of the
Receivables arising in the New Accounts to ACCR have been made in contemplation
of the occurrence thereof; and
(v) the transfer of the Receivables arising in the New
Accounts to ACCR will not result in the occurrence of a Pay Out Event.
Section 2.04. Representations and Warranties. ACCS hereby
represents and warrants to ACCR as of the related Addition Date as to the
matters set forth in subsections 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, ACCS shall deliver to ACCR (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 ACCR),
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 ACCR 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 ACCR 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 ACCS and ACCR 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 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 ACCR 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 ACCS to ACCR 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 ACCS and ACCR 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 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 ACCR, respectively, on the Closing Date and on each
Distribution Date following a Monthly Period during which New Principal
Receivables are conveyed to ACCR, shall be paid in cash.
(d) Notwithstanding any other provision of this Agreement,
ACCS shall not be obligated to continue to sell Receivables to ACCR to the
extent that ACCS 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 ACCR by ACCS which has since
been reversed by ACCS 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 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
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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, ACCS agrees that, not later than 1:00
p.m., New York City time, on such Distribution Date, ACCS shall pay or cause to
be paid to ACCR 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 ACCS Relating
to ACCS. ACCS hereby represents and warrants to, and agrees with, ACCR as of the
Closing Date and on each Addition Date, that:
(a) Organization and Good Standing. ACCS is a corporation duly
organized and validly existing in good standing 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 Qualification. ACCS 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, any
Receivable or Receivables Purchase Agreement unenforceable by 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, each Receivables Purchase Agreement and any other document or
instrument delivered pursuant hereto, including any Supplemental Conveyance, to
which ACCS is a party (such other documents or instruments, collectively, the
"CONVEYANCE PAPERS"), and the consummation of the transactions provided for in
this Agreement, the Receivables Purchase Agreements and the Conveyance Papers
have been duly authorized by ACCS by all necessary corporate action on the part
of ACCS.
(d) No Conflict. The execution and delivery of this Agreement,
the Receivables Purchase Agreements and the Conveyance Papers by ACCS, the
performance of the transactions contemplated by this Agreement, the Receivables
Purchase Agreements and the Conveyance Papers, and the fulfillment of the terms
of this Agreement, the Receivables Purchase Agreements and the Conveyance Papers
applicable to ACCS 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 ACCS
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, the Receivables Purchase Agreements 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.
(f) 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
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consummation of any of the transactions contemplated by this Agreement, any
Receivables Purchase 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, (iv) seeking any determination or
ruling that would materially and adversely affect the validity or enforceability
of this Agreement, any Receivables Purchase 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 ACCS in connection with the
execution and delivery by ACCS of this Agreement, the Receivables Purchase
Agreements and the Conveyance Papers and the performance of the transactions
contemplated by this Agreement, the Receivables Purchase Agreements or the
Conveyance Papers by ACCS 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 ACCR. Upon
discovery by ACCS or ACCR of a breach of any of the foregoing representations
and warranties, the party discovering such breach shall give written notice to
the other party, the Owner Trustee and the Indenture Trustee within three (3)
Business Days following such discovery.
Section 4.02. Representations and Warranties of ACCS Relating
to the Agreement and the Receivables.
(a) Representations and Warranties. ACCS hereby represents and
warrants to ACCR as of the date of this Agreement and as of the Closing Date
with respect to the Initial Accounts (and the Receivables arising therein), and,
with respect to Additional Accounts (and the 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 ACCS enforceable against ACCS 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;
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(iii) each Receivable has been conveyed to ACCR 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 ACCS in connection with the conveyance of
Receivables to ACCR 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 ACCR of all right, title and interest of ACCS 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 ACCS to be materially
adverse to the interests of ACCR or the Noteholders 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 ACCR. Upon discovery by either ACCS or ACCR 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, 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. ACCS hereby acknowledges that ACCR
intends to rely on the representations hereunder in connection with
representations made by ACCR to secured parties, assignees or subsequent
transferees including but not limited to transfers made by ACCR to the Trust
pursuant to the Transfer and Servicing Agreement and by the Trust to the
Indenture Trustee pursuant to the Indenture and that the Owner Trustee and the
Indenture Trustee may enforce such representations directly against ACCS.
Section 4.03. Representations and Warranties of ACCR. As of
the Closing Date and each Addition Date, ACCR hereby represents and warrants to,
and agrees with, ACCS that:
(a) Organization and Good Standing. ACCR 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.
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(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 ACCR by all necessary corporate action on the part of ACCR.
(c) No Conflict. The execution and delivery of this Agreement
and the Conveyance Papers by ACCR, 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 ACCR, 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 ACCR 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 ACCR and the fulfillment of the
terms contemplated herein and therein applicable to ACCR will not conflict with
or violate any Requirements of Law applicable to ACCR.
(e) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of ACCR, threatened, against ACCR, 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 ACCR,
would materially and adversely affect the performance by ACCR 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 ACCR in connection with the
execution and delivery by ACCR 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 ACCR. Upon discovery by
ACCR or ACCS 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, the Owner Trustee and the Indenture Trustee.
[END OF ARTICLE IV]
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ARTICLE V
COVENANTS
Section 5.01. Covenants of ACCS. ACCS hereby covenants and
agrees with ACCR as follows:
(a) Receivables Not To Be Evidenced by Promissory Notes.
Except in connection with its enforcement or collection of an Account, ACCS 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 ACCS it
shall be deemed to be an Ineligible Receivable in accordance with subsection
6.01(a) and shall be reassigned to ACCS in accordance with subsection 6.01(b).
(b) Security Interests. Except for the conveyances hereunder,
ACCS will not sell, pledge, assign or transfer to any other Person, or take any
other action inconsistent with ACCR's ownership of the Receivables or grant,
create, incur, assume or suffer to exist any Lien (arising through or under
ACCS) on any Receivable (or the underlying receivable), whether now existing or
hereafter created, or any interest therein, and ACCS shall not claim any
ownership interest in the Receivables and shall defend the right, title and
interest of ACCR in, to and under the Receivables, whether now existing or
hereafter created, against all claims of third parties claiming through or under
ACCS.
(c) Account Allocations. In the event that ACCS is unable for
any reason to transfer Receivables to ACCR 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
ACCS agrees (except as prohibited by any such order) to allocate and pay to
ACCR, after the date of such inability, all amounts in the manner by which ACCR
will allocate and pay such amounts to the Trust after such inability by ACCR
pursuant to Section 2.11 of the Transfer and Servicing Agreement.
(d) Delivery of Collections or Recoveries. In the event that
ACCS receives Collections or Recoveries, ACCS agrees to pay to ACCR (or to the
Servicer if ACCR so directs) all such Collections and Recoveries as soon as
practicable after receipt thereof.
(e) Notice of Liens. ACCS shall notify ACCR promptly after
becoming aware of any Lien on any Receivable (or on the underlying receivable)
other than the conveyances hereunder, under any other Receivables Purchase
Agreements, 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, ACCS 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 ACCS cannot identify the amount of such
Interchange, the amount reasonably estimated by ACCS as the amount of such
Interchange.
(g) Documentation of Transfer. ACCS shall undertake to file
the documents which would be necessary to perfect and maintain the transfer of
the Purchased Assets to ACCR.
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Section 5.02. Covenants of ACCS with Respect to Receivables
Purchase Agreements. ACCS, in its capacity as purchaser of Receivables from ANB
or any other Account Owner pursuant to the Receivables Purchase Agreements
between ACCS and ANB or any other Account Owner, as the case may be, hereby
covenants that ACCS will at all times enforce the covenants and agreements of
ANB or any other Account Owner, as the case may be, in such Receivables Purchase
Agreements, including covenants substantially to the effect set forth below:
(a) Periodic Rate Finance Charges. (i) Except (x) as otherwise
required by any Requirements of Law or (y) as is deemed by ANB or other Account
Owner, as the case may be, 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.
(b) Credit Card Agreements and Guidelines. Subject to
compliance with all Requirements of Law and paragraph (a) above, ANB or other
Account Owner, as the case may be, 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 (a) above, ANB or other Account Owner, as the case may
be, will not take any action unless (i) at the time of such action, ANB or other
Account Owner, as the case may be, 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 or other Account Owner 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 or other Account Owner, as the case may be, and an
unrelated third party or by the terms of the Credit Card Agreements.
ACCS further covenants that it will not enter into any
amendments to the Receivables Purchase Agreements or enter into a new
Receivables Purchase Agreement (other than the Receivables Purchase Agreement
with ANB identified in the definition of Receivables Purchase Agreement) unless
the Rating Agency Condition has been satisfied.
ACCR covenants that it will provide ACCS with such information
as ACCS may reasonably request to enable ACCS to determine compliance with the
covenants contained in subsection 5.02(b).
[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 ACCR is
required to accept reassignment of Ineligible Receivables previously sold by
ACCS to ACCR pursuant to subsection 2.05(a) of the Transfer and Servicing
Agreement, ACCS shall accept reassignment of such Ineligible Receivables on the
terms and conditions set forth in subsection 6.01(b).
(b) ACCS shall accept reassignment of any Ineligible
Receivables previously sold by ACCS to ACCR from ACCR on the date on which such
reassignment obligation arises, and shall pay for such reassigned Ineligible
Receivables by paying to ACCR, 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, ACCR shall automatically and without further action be deemed to
sell, transfer, assign, set-over and otherwise convey to ACCS, without recourse,
representation or warranty, all the right, title and interest of ACCR 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 ACCR as
collected in full as of the date on which they were transferred. ACCR shall
execute such documents and instruments of transfer or assignment and take such
other actions as shall reasonably be requested by ACCS 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 ACCR is required to accept a reassignment of the
Receivables previously sold by ACCS to ACCR pursuant to Section 2.06 of the
Transfer and Servicing Agreement, ACCS shall be obligated to accept a
reassignment of such Receivables on the terms set forth below.
ACCS shall pay to ACCR 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, ACCR shall automatically
and without further action be deemed to sell, transfer, assign, set-over and
otherwise convey to ACCS, without recourse, representation or warranty, all the
right, title and interest of ACCR 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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ACCR shall execute such documents and instruments of transfer or assignment and
take such other actions as shall reasonably be requested by ACCS 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 ACCR's Obligations Regarding
Initial Receivables. The obligations of ACCR 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 ACCS 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 ACCR shall be true and correct as of the Initial Cut-Off Date in all material
respects;
(c) ACCS shall have (i) delivered to ACCR 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) ACCS 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 ACCS to ACCR, and shall deliver a file-stamped copy of such
financing statements or other evidence of such filings to ACCR;
(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) ANB and
ACCS shall have entered into a Receivables 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 ACCR, and ACCR shall have received from
ACCS copies of all documents (including, without limitation, records of
corporate proceedings) relevant to the transactions herein contemplated as ACCR
may reasonably have requested.
Section 7.02. Conditions Precedent to ACCS's Obligations. The
obligations of ACCS 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 ACCR 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) On or before the Closing Date, ACCS and ANB shall have
entered into a Receivables Purchase Agreement with ANB identified in the
definition of Receivables Purchase Agreement.
(c) Payment or provision for payment of the Purchase Price in
accordance with the provision of Section 3.01 hereof shall have been made; and
(d) 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
ACCR copies of all documents (including, without limitation, records of
corporate proceedings) relevant to the transactions herein contemplated as ACCS
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 until at least the
termination of the Trust as provided in Article VIII of the Trust Agreement.
Thereafter this Agreement may be terminated by the mutual agreement of the
parties hereto.
Section 8.02. Purchase Termination. If ACCS 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
ACCS 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 ACCS or for any substantial part of
ACCS's property, or for the winding-up or liquidation of ACCS's affairs and, if
instituted against ACCS, 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 ACCS shall commence a
voluntary case under any Debtor Relief Law, or if ACCS 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 ACCS shall have taken any
corporate action in furtherance of any of the foregoing actions (each, an
"INSOLVENCY EVENT"); then ACCS shall immediately cease to transfer Principal
Receivables to ACCR and shall promptly give notice to ACCR, the Owner Trustee
and the Indenture Trustee of such Insolvency Event. Notwithstanding any
cessation of the transfer to ACCR of additional Principal Receivables, Principal
Receivables transferred to ACCR 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 ACCR available for transfer 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 ACCR
and ACCS in accordance with this Section 9.01. This Agreement and any Conveyance
Papers may be amended from time to time by ACCR and ACCS (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 ACCS or ACCR; provided, however, that no amendment
pursuant to clause (iv) or (v) of this Section 9.01 shall be effective unless
ACCS and ACCR have been notified in writing that the Rating Agency Condition has
been satisfied; provided further that ACCS shall have delivered to ACCR an
Officer's Certificate, dated the date of such action, stating that ACCS
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 ACCS, 000 Xxxx Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000,
Attention: Senior Vice President - Capital Markets (facsimile no. (972)
652-5445), (b) in the case of ACCR, 000 Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 0 Xxxxxx,
Xxxxxx, Xxxxx 00000, Attention: General Counsel (facsimile no. (000) 000-0000),
(c) in the case of the Owner Trustee, Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Administration (facsimile no. (000) 000-0000), or (d) in the
case of the Indenture Trustee, The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx
00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000 (facsimile no. (000) 000-0000); 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 ACCR's assignment of its right, title, and
interest in, to, and under this Agreement to the Trust and the Trust's
assignment of its right, title and interest in, to and under this Agreement to
the Indenture Trustee for the benefit of the beneficiaries of the Trust,
including the Noteholders as contemplated by 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 ACCS 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 ACCR and ACCS that the Rating Agency Condition has been
satisfied.
Section 9.06. Acknowledgement and Agreement of ACCS. By
execution below, ACCS expressly acknowledges and agrees that all of ACCR's
right, title, and interest in, to, and under this Agreement, including, without
limitation, all of ACCR's right, title, and interest in and to the Receivables
purchased pursuant to this Agreement, may be assigned 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 ACCS consents to such
assignments. ACCS further agrees that notwithstanding any claim, counterclaim,
right of setoff or defense which it may have against ACCR, due to a breach by
ACCR of this Agreement or for any other reason, and notwithstanding the
bankruptcy of ACCR or any other event whatsoever, ACCS's sole remedy shall be a
claim against ACCR for money damages, and then only to the extent of funds
available to ACCR, and in no event shall ACCS 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, ACCS agrees that any amounts payable by ACCS to ACCR
hereunder which are to be paid by ACCR to the Trust shall be paid by ACCS, on
behalf of ACCR, directly to the Trust.
Section 9.07. Further Assurances. ACCR and ACCS 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, 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 ACCR or ACCS, 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.
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 ACCR 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, ACCS 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 ACCR or the Trust to invoke the process of any
Governmental Authority for the purpose of commencing or sustaining a case
against ACCR or the Trust under any Debtor Relief Law or appointing a receiver,
conservator, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of ACCR or the Trust or any substantial part of its property or
ordering the winding-up or liquidation or the affairs of ACCR or the Trust.
[END OF ARTICLE IX]
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IN WITNESS WHEREOF, ACCR and ACCS 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 CREDIT CARD SERVICES, INC.
By: /s/ XXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Senior Vice President
ASSOCIATES CREDIT CARD RECEIVABLES
CORP.
By: /s/ XXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Senior Vice President
[Signature Page to the ACCS Amended and Restated Receivables Purchase Agreement]
30
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 CREDIT CARD SERVICES, INC., as Transferor
("ACCS"), and ASSOCIATES CREDIT CARD RECEIVABLES CORP. ("ACCR"), pursuant to the
Receivables Purchase Agreement referred to below.
WITNESSETH:
WHEREAS, ACCS and ACCR 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, ACCS
wishes to designate Additional Accounts to be included as Accounts and ACCS
wishes to convey its right, title and interest in the Receivables of such
Additional Accounts, whether now existing or hereafter created, to ACCR pursuant
to the Receivables Purchase Agreement (as each such term is defined in the
Receivables Purchase Agreement); and
WHEREAS, ACCR is willing to accept such designation and
conveyance subject to the terms and conditions hereof.
NOW, THEREFORE, ACCS and ACCR 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. ACCS 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) ACCS does hereby sell, transfer, assign, set over and
otherwise convey to ACCR, 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, ACCS 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 ACCR, and to
deliver a file-stamped copy of such financing statement or other evidence of
such filing to ACCR.
(c) In connection with such sale, ACCS 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 ACCR pursuant to this Supplemental Conveyance.
4. Acceptance by ACCR. ACCR 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 ACCR pursuant to Section 3(a)
of this Supplemental Conveyance, and declares that it shall maintain such right,
title and interest. ACCR further acknowledges that, prior to or simultaneously
with the execution and delivery of this Supplemental Conveyance, ACCS delivered
to ACCR the computer file or microfiche list described in Section 2 of this
Supplemental Conveyance.
5. Representations and Warranties of ACCS. ACCS hereby
represents and warrants to ACCR 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 ACCS enforceable
against ACCS 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 ACCR 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
ACCS to be adverse to the interests of ACCR 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 ACCR of all right, title
and interest of ACCS 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 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 ACCS is a party or by which it or its properties are
bound;
(h) No Violation. The execution and delivery of this
Supplemental Conveyance by ACCS, the performance of the transactions
contemplated by this Supplemental Conveyance and the fulfillment of the terms
hereof applicable to ACCS will not conflict with or violate any Requirements of
Law applicable to ACCS;
(i) 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
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 ACCS, would
materially and adversely affect the performance by ACCS 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 ACCS in
connection with the execution and delivery of this Supplemental Conveyance by
ACCS and the performance of the transactions contemplated by this Supplemental
Conveyance by ACCS, have been obtained.
6. Ratification of the Receivables Purchase Agreement. The
Receivables Purchase Agreement is hereby ratified, and all references to the
"RECEIVABLES PURCHASE
X-0
00
XXXXXXXXX," 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 conflicts 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 CREDIT CARD SERVICES, INC.
By:
------------------------------------------
Name:
Title:
ASSOCIATES CREDIT CARD RECEIVABLES CORP.
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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