Exhibit 10.1
EXECUTION COPY
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CC CREDIT CARD CORPORATION,
as Corporation
and
TRAVELERS BANK & TRUST, fsb,
as Account Owner
RECEIVABLES TRANSFER AGREEMENT
Dated as of March 1, 1998
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions.................................................. 1
Section 1.02. Other Definitional Provisions................................ 4
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase..................................................... 4
Section 2.02. Addition of Additional Accounts.............................. 6
Section 2.03. Representations and Warranties............................... 7
Section 2.04. Delivery of Documents........................................ 7
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price............................................... 8
Section 3.02. Adjustments to Purchase Price................................ 8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Account Owner
Relating to the Account Owner................................ 9
Section 4.02. Representations and Warranties of the Account Owner
Relating to the Agreement and the Receivables................ 10
Section 4.03. Representations and Warranties of the Corporation............ 12
ARTICLE V
COVENANTS
Section 5.01. Covenants of the Account Owner............................... 13
Section 5.02. Covenants of the Account Owner with Respect to Portfolio
Yield and Cardholder Agreements.............................. 15
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ARTICLE VI
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables....................... 16
Section 6.02. Reassignment of Receivables in Trust Portfolio............... 16
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to the Corporation's Obligations Regarding
Initial Receivables.......................................... 17
Section 7.02. Conditions Precedent to the Account Owner's Obligations...... 18
TERM AND PURCHASE TERMINATION
Section 8.01. Term......................................................... 18
Section 8.02. Purchase Termination......................................... 18
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment.................................................... 19
Section 9.02. Governing Law................................................ 19
Section 9.03. Notices...................................................... 19
Section 9.04. Severability of Provisions................................... 20
Section 9.05. Assignment................................................... 20
Section 9.06. Acknowledgement and Agreement of the Account Owner........... 20
Section 9.07. Further Assurances........................................... 20
Section 9.08. No Waiver; Cumulative Remedies............................... 21
Section 9.09. Counterparts................................................. 21
Section 9.10. Binding; Third-Party Beneficiaries........................... 21
Section 9.11. Merger and Integration....................................... 21
Section 9.12. Headings..................................................... 21
Section 9.13. Schedules and Exhibits....................................... 21
Section 9.14. Survival of Representations and Warranties................... 21
Section 9.15. Nonpetition Covenant......................................... 22
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RECEIVABLES TRANSFER AGREEMENT, dated as of March 1, 1998, by and
between TRAVELERS BANK & TRUST, fsb, a federally chartered savings bank (the
"Account Owner"), and CC CREDIT CARD CORPORATION, a Delaware corporation (the
"Corporation").
W I T N E S S E T H:
WHEREAS, the Corporation desires to purchase, from time to time,
certain Receivables (hereinafter defined) arising in certain credit card
accounts of the Account Owner;
WHEREAS, the Account Owner desires to sell from time to time and
assign certain Receivables to the Account Owner upon the terms and conditions
hereinafter set forth;
WHEREAS, it is contemplated that the Receivables purchased hereunder
will be transferred by the Corporation to the Trust (hereinafter defined) in
connection with the issuance of certain Certificates (hereinafter defined); and
WHEREAS, the Account Owner agrees that all covenants and agreements
made by the Account Owner herein with respect to the Accounts (hereinafter
defined) and Receivables shall also be for the benefit of the Trustee
(hereinafter defined) and all beneficiaries of the Trust, including the holders
of the Certificates.
NOW, THEREFORE, it is hereby agreed by and between the Account Owner
and the Corporation 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 Pooling and Servicing Agreement; in addition, the following words
and phrases shall have the following meanings:
"Account" shall mean each Initial Account and each Additional
Account (but only from and after the Addition Date with respect thereto) but
shall exclude any Account in which all the Receivables are either reassigned or
assigned to the Corporation or its designee or to the Servicer in accordance
with the terms of the Pooling and Servicing Agreement and shall exclude any
Account all the Receivables in which are, after the Removal Date, not to be
assigned to the Corporation pursuant to subsection 2.01(e) hereof. The
definition of Account shall include each account into which an Account shall be
transferred (a
"Transferred Account"), provided that (i) such transfer is made in
accordance with the Credit Card Guidelines and (ii) such Transferred Account can
be traced or identified as an account into which an Account has been
transferred.
"Account Owner" shall mean Travelers Bank & Trust, fsb, a federally
chartered savings bank.
"Additional Account" shall mean each consumer revolving credit card
account established pursuant to a Cardholder Agreement, which account is
designated by the Account Owner pursuant to Section 2.01 or 2.02 hereof to be
included as an Account and which is identified in a computer file or microfiche
list delivered to the Corporation or to the Trustee pursuant to subsection
2.01(c) or Section 2.04.
"Addition Cut-Off Date" shall mean with respect to any Additional
Accounts the date specified in the related Assignment.
"Addition Date" shall mean with respect to Additional Accounts, the
date on which the Receivables in such Additional Accounts are conveyed to the
Trust pursuant to Section 2.02.
"Addition Notice Date" shall have the meaning specified in Section
2.02 of this Agreement.
"Agreement" shall mean this Receivables Transfer Agreement and all
amendments hereof and supplements hereto.
"Conveyance" shall have the meaning specified in subsection 2.01(a).
"Conveyance Papers" shall have the meaning specified in subsection
4.01(c).
"Corporation" shall mean CC Credit Card Corporation, a Delaware
corporation, and its permitted successors and assigns.
"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.
"Finance Charge Receivables" shall mean all Receivables in the
Accounts which would be treated as "Finance Charge Receivables" in accordance
with the Pooling and Servicing Agreement.
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"Initial Account" shall mean each MasterCard(R) and VISA(R)1 account
established pursuant to a Cardholder Agreement between Travelers Bank & Trust,
fsb and any person, and identified by account number and by the Receivable
balance in a computer file or microfiche list delivered to the Trustee by the
Corporation on or prior to the Initial Closing Date pursuant to subsection
2.01(c).
"Initial Closing Date" shall mean March 6, 1998.
"Initial Cut-Off Date" shall mean December 31, 1997.
"Insolvency Event" shall have the meaning specified in Section 8.02.
"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 Pooling and Servicing Agreement.
"Pooling and Servicing Agreement" shall mean the Pooling and
Servicing Agreement, dated as of March 1, 1998, among CC Credit Card
Corporation, as Transferor, Travelers Bank & Trust, fsb, in its individual
capacity and as Servicer, and the Trustee, together with all amendments and
supplements thereto.
"Portfolio Reassignment Price" shall mean that portion of the amount
payable by the Corporation to the Trustee pursuant to Section 2.06 of the
Pooling and Servicing Agreement which is allocable to the Receivables in
Accounts of the Account Owner hereunder.
"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 Pooling 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 with respect to which the Account
Owner hereunder is the Account Owner, from time to time, including amounts
payable for Principal Receivables and Finance Charge Receivables. Receivables
which become Defaulted Receivables will cease to be included as Receivables as
of the day on which they become Defaulted Receivables.
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1 MasterCard and VISA are registered trademarks of MasterCard International
Incorporated and of VISA USA, Inc., respectively.
3
"Removed Account" shall mean an Account hereunder that is a "Removed
Account" (as such term is defined in the Pooling and Servicing Agreement) that
is designated for removal pursuant to Section 2.10 of the Pooling and Servicing
Agreement.
"Repurchase Price" shall have the meaning set forth in subsection
6.01(b) hereof.
"Supplemental Conveyance" shall have the meaning set forth in
Section 2.04.
"Trust" shall mean the Travelers Bank Credit Card Master Trust I
created by the Pooling and Servicing Agreement.
"Trustee" shall mean The Bank of New York, a New York banking
corporation, the institution executing the Pooling and Servicing Agreement as,
and acting in the capacity of Trustee thereunder, or its successor in interest,
or any successor trustee appointed as provided in the Pooling and Servicing
Agreement.
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" and "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, as such Sections, subsections, Schedules and Exhibits
may be amended, 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 Pooling and Servicing Agreement and all applicable Supplements.
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase.
(a) By execution of this Agreement, the Account Owner does hereby
sell, transfer, assign, set over and otherwise convey to the Corporation
(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 the Receivables existing at the
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close of business on each Addition Cut-Off Date, in the case of Receivables
arising in the Additional Accounts, and, in each case, the Receivables
thereafter created from time to time until the termination of the Trust or until
such Account becomes a Removed Account, all monies due or to become due and all
amounts received with respect thereto (excluding, however, any and all
Recoveries) and all proceeds (including "proceeds" as defined in the UCC)
thereof (the "Purchased Assets").
(b) In connection with such Conveyance, the Account Owner 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 and other Purchased Assets now
existing and hereafter created, 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 the Account
Owner to the Corporation, (ii) that such financing statements shall name the
Account Owner, as seller, and the Corporation, as purchaser, of the Receivables
and other Purchased Assets and (iii) to deliver a file-stamped copy of such
financing statements or other evidence of such filings (excluding such
continuation statements, which shall be delivered as filed) to the Corporation
as soon as is practicable after filing.
(c) In connection with such Conveyance, the Account Owner further
agrees that it will, at its own expense, (i) on or prior to (x) the Initial
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 with the code "30" or
"31" or any other clearly specified code in the FDR Account Flagged field of
such 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 the Corporation in accordance with this Agreement and have been
conveyed by the Corporation to the Trustee pursuant to the Pooling and Servicing
Agreement for the benefit of the Certificateholders by including (or deleting,
in the case of newly originated Receivables in Removed Accounts) in such
computer files the code identifying each such Account and (ii) deliver on or
before the Initial Closing Date, in the case of the Initial Accounts, or on or
before the Addition Date, in the case of the Additional Accounts, to the
Corporation or the Trustee, as the Corporation's nominee, a computer files or
microfiche file 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
Initial Accounts, the applicable Addition Cut-Off Date, in the case of
Additional Accounts, and the applicable Removal Cut-Off Date, in the case of
Removed Accounts, its account number, the aggregate amount outstanding in such
Account and the aggregate amount of Principal Receivables outstanding in such
Account. Each such file or list, as supplemented from time to time to reflect
Additional Accounts or Removed Accounts, shall be marked as Schedule I to this
Agreement, shall be delivered to the Corporation or the Trustee, as the
Corporation's nominee, and is hereby incorporated into and made a part of this
Agreement. The Account Owner 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 or unless and
until (i) the Account Owner shall give written notice of any such alteration to
the Corporation and to the Trustee, such written notice to be as of the date of
its receipt by the Trustee incorporated
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into and part of this Agreement and (ii) the Account Owner and the Corporation
shall execute and file any UCC financing statement or amendment thereof
necessitated by such alteration.
(d) The parties hereto intend that the conveyance of the Account
Owner's right, title and interest in and to the Receivables and the other
Purchased Assets shall constitute an absolute sale, conveying good title free
and clear of any liens, claims, encumbrances or rights of others from the
Account Owner to the Corporation. It is the intention of the parties hereto that
the arrangements with respect to the Receivables and other Purchased Assets
shall constitute a purchase and sale of such 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 Account Owner shall be deemed to have granted and
does hereby grant to the Corporation a first priority perfected security
interest, in all of the Account Owner's right, title and interest, whether now
owned or hereafter acquired, in, to and under the Receivables and other
Purchased Assets to secure the rights of the Corporation hereunder and the
obligations of the Account Owner hereunder.
(e) If any Account becomes a Removed Account as provided in Section
2.10 of the Pooling and Servicing Agreement, the Account Owner, upon being
notified of the removal of such Account shall cease to sell the Receivables
arising therein to the Corporation.
Section 2.02. Addition of Additional Accounts.
(a) If, from time to time, the Corporation becomes obligated to
designate Additional Accounts (as such term is defined in the Pooling and
Servicing Agreement) pursuant to subsection 2.09(a) of the Pooling and Servicing
Agreement, then the Corporation may, at its option, give the Account Owner
written notice thereof on or before the tenth Business Day (the "Addition Notice
Date") prior to the Addition Date therefor, and upon receipt of such notice the
Account Owner shall on or before the Addition Date, designate sufficient
Eligible Accounts to be included as Additional Accounts so that after the
inclusion thereof the Corporation will be in compliance with the requirements of
said subsection 2.09(a) of the Pooling and Servicing Agreement. Additionally,
subject to subsection 2.02(b) hereof, from time to time Eligible Accounts may be
designated to be included as Additional Accounts, upon the mutual agreement of
the Corporation and the Account Owner. In either event, the Account Owner shall
have sole responsibility for selecting the Additional Accounts and shall
determine and notify the Corporation of the Addition Cut-Off Date with respect
to such Additional Accounts.
(b) On the Addition Date with respect to any designation of
Additional Accounts, the Corporation shall purchase the Account Owner's right,
title and interest in, to and under the Receivables in Additional Accounts (as
of the Addition Cut-Off Date) (and such Additional Accounts shall be deemed to
be Accounts for purposes of this Agreement), subject to the satisfaction of the
following conditions:
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i) all Additional Accounts shall be Eligible Accounts;
ii) the Account Owner shall have delivered to the Corporation copies
of UCC financing statements covering such Additional Accounts, if
necessary to perfect the Corporation's ownership of the Receivables
arising therein;
iii) to the extent required of the Corporation by Section 4.03 of
the Pooling and Servicing Agreement, the Account Owner shall have
deposited in the Collection Account all Collections with respect to such
Additional Accounts since the Addition Cut-Off Date;
iv) as of each of the Addition Cut-Off Date and the Addition Date,
no Insolvency Event with respect to the Account Owner shall have occurred
nor shall the transfer to the Corporation of the Receivables arising in
the Additional Accounts have been made in contemplation of the occurrence
thereof; and
v) the Account Owner shall have delivered to the Corporation an
Officer's Certificate, dated the Addition Date, (a) stating that, as of
the applicable Addition Cut-Off Date, the Additional Accounts are all
Eligible Accounts (b) confirming, to the extent applicable, the items set
forth in clauses (ii) through (iv) above; and (c) stating that the Account
Owner reasonably believes that the addition to the Trust of the
Receivables arising in the Additional Accounts will not based on the facts
known to such officer at the time of such addition, then or thereafter
cause an Adverse Effect to occur.
Section 2.03. Representations and Warranties. The Account Owner
hereby represents and warrants to the Corporation as of the related Addition
Date that, in the case of the Initial Accounts, the computer file or microfiche
file delivered pursuant to Section 2.01(c) hereof and marked as Schedule I to
this Agreement delivered pursuant to Section 2.01(c) hereof and, in the case of
Additional Accounts, the list delivered pursuant to Section 2.04 below is, as of
the applicable Addition Cut-Off Date, true and complete in all material
respects.
Section 2.04. Delivery of Documents. In the case of the designation
of Additional Accounts, the Account Owner shall deliver to the Corporation or
the Trustee (i) the schedule to be delivered pursuant to Section 2.01 hereof
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) with respect to Additional Accounts, a duly executed written assignment
(including an acceptance by the Corporation), substantially in the form of
Exhibit A (the "Supplemental Conveyance"), on the Addition Date.
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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 conveyed to the Corporation under this Agreement
shall be payable on the Initial Closing Date and shall be an amount equal to the
balance of the Receivables in the Initial Accounts as of the Initial Cut-Off
Date, adjusted to reflect such factors as the Account Owner and the Corporation
mutually agree will result in a Purchase Price determined to be not less than
the fair market value of such Receivables. This computation of initial purchase
price should assume no reinvestment in new Receivables. The Purchase Price for
the Receivables (including Receivables in Additional Accounts) to be conveyed to
the Corporation under this Agreement which come into existence after the Initial
Cut-Off Date, shall be payable on the Distribution Date following the Monthly
Period in which such Receivables are conveyed by the Account Owner to the
Corporation in an amount equal to the balance of the Principal Receivables so
conveyed (the "New Principal Receivables"), adjusted to reflect such factors as
the Account Owner and the Corporation mutually agree will result in a Purchase
Price determined to be not less than the fair market value of such New Principal
Receivables.
(b) The Purchase Price to be paid by the Corporation on the Initial
Closing Date and on each Distribution Date following a Monthly Period during
which New Principal Receivables are conveyed to the Corporation shall be paid in
cash.
Section 3.02. Adjustments to Purchase Price. The Purchase Price
shall be adjusted on each Distribution Date (a "Credit Adjustment") with respect
to any Receivable previously conveyed to the Corporation by the Account Owner
which has since been reversed by the Account Owner or the Servicer because of a
rebate, refund, unauthorized charge or billing error to an Obligor or because
such Receivable was created in respect of merchandise which was refused or
returned or due to the occurrence of any other event referred to in Section 3.09
of the Pooling and Servicing Agreement. The amount of such adjustment shall
equal (x) the reduction in the Principal Receivables resulting from the
occurrence of such event multiplied by (y) the quotient (expressed as a
percentage) of (i) the Purchase Price for Principal Receivables payable on such
Distribution Date computed in accordance with Section 3.01 hereof divided by
(ii) the Principal Receivables paid for on such date pursuant to such Section
3.01. In the event that an adjustment pursuant to this Section 3.02 causes the
Purchase Price to be a negative number, the Account Owner agrees that, not later
than 1:00 P.M. New York City time on such Distribution Date, the Account Owner
shall pay to the Corporation an amount equal to the amount by which the Purchase
Price minus the Credit Adjustment would be reduced below zero.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Account Owner
Relating to the Account Owner. The Account Owner hereby represents and warrants
to, and agrees with, the Corporation as of the Initial Closing Date and on each
Addition Date, that:
(a) Organization and Good Standing. The Account Owner is a federally
chartered savings bank duly organized and validly existing in good standing
under the laws of the United States and has, in all material respects, full
power and authority to own or lease its properties and conduct its business as
such properties are presently owned or leased and such business is presently
conducted, and to execute, deliver and perform its obligations under this
Agreement.
(b) Due Qualification. The Account Owner 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 Cardholder Agreement relating to an Account, or
any Receivable unenforceable by the Account Owner, the Servicer or the Trustee
and (ii) have a material adverse effect on the interests of the
Certificateholders.
(c) Due Authorization. The execution, delivery and performance of
this Agreement and any other document or instrument delivered pursuant hereto,
including any Supplemental Conveyance (such other documents or instruments,
collectively, the "Conveyance Papers"), and the consummation of the transactions
provided for in this Agreement and the Conveyance Papers have been (i) duly
authorized by the Account Owner by all necessary corporate action on the part of
the Account Owner and (ii) each of this Agreement and the Conveyance papers will
remain, from the time of its execution, an official record of the Account Owner.
(d) No Conflict. The execution and delivery of this Agreement and
the Conveyance Papers by the Account Owner, 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 the Account
Owner will not conflict with 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 the Account Owner is a party or by
which it or any of its properties are bound.
(e) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Account Owner, threatened against the
Account Owner, before any court, regulatory body, administrative agency, or
other tribunal or governmental instrumentality (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
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Agreement or the Conveyance Papers, (iii) seeking any determination or ruling
that, in the reasonable judgment of the Account Owner, would materially and
adversely affect the performance by the Account Owner of its obligations under
this Agreement or the Conveyance Papers, (iv) seeking any determination or
ruling that, in the reasonable judgment of the Account Owner, would materially
and adversely affect the validity or enforceability of this Agreement or the
Conveyance Papers or (v) seeking to affect adversely the income tax attributes
of the Trust or any Certificates under the United States Federal or any state
income or franchise tax systems.
(f) All Consents. All approvals, authorizations, consents, orders or
other actions of any Person or of any governmental body or official required to
be obtained, effected or given by the Account Owner in connection with the
execution and delivery by the Account Owner of this Agreement and the Conveyance
Papers and the performance of the transactions contemplated by this Agreement or
the Conveyance Papers by the Account Owner have been duly obtained, effected or
given and are in full force and effect, except for approvals, authorizations,
consents, orders or other actions which if not obtained will not individually or
in the aggregate have any material adverse effect upon the ability of the
Account Owner to execute, deliver and perform under this Agreement and the
Conveyance Papers.
(g) No Insolvency Event. No Insolvency Event with respect to the
Account Owner has occurred and the transfer of the Receivables and other
Purchased Assets by the Account Owner to the Corporation as contemplated by this
Agreement has not been made in contemplation thereof.
(h) No Violation. The execution, delivery and performance of this
Agreement and the Conveyance Papers by the Account Owner and the fulfillment of
the terms contemplated herein and therein applicable to the Account Owner will
not conflict with or violate any Requirements of Law applicable to the Account
Owner.
The representations and warranties set forth in this Section 4.01
shall survive the transfer and assignment of the Receivables to the Corporation
and the transfer and assignment by the Corporation to the Trust. Upon discovery
by the Account Owner, the Corporation or the Trustee of a breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the others.
Section 4.02. Representations and Warranties of the Account Owner
Relating to the Agreement and the Receivables.
(a) Representations and Warranties. The Account Owner hereby
represents and warrants to the Corporation as of the date of this Agreement, as
of the Initial Closing Date and, with respect to Additional Accounts, 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 the Account Owner enforceable against the Account
Owner in accordance with its terms,
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except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights
generally from time to time in effect or general principles of equity
(whether considered in a suit of law or in equity);
(ii) as of the Initial Cut-Off Date, and as of the related Addition
Cut-Off Date with respect to Additional Accounts, Schedule I to this
Agreement (composed of the list of accounts) as supplemented to such date,
is an accurate and complete listing in all material respects of all the
Accounts the Receivables in which were transferred 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 Addition
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
$140,461,579.20, of which $140,138,079.03 were Principal Receivables;
(iii) each Receivable has been conveyed to the Corporation free and
clear of any Lien;
(iv) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required to
be obtained, effected or given by the Account Owner in connection with the
conveyance of the Receivables to the Corporation have been duly obtained,
effected or given and are in full force and effect, except for
authorizations, consents, orders or other approvals of or registrations or
declarations which if not obtained, effected or given will not
individually or in the aggregate have any material adverse effect upon the
conveyance of the Receivables to the Corporation or the ability of the
Account Owner to enter into this Agreement and the Conveyance Papers or to
perform hereunder or thereunder;
(v) this Agreement and, in the case of Additional Accounts, any
related Supplemental Conveyance constitutes a valid sale, transfer and
assignment to the Corporation of all right, title and interest of the
Account Owner in the Receivables conveyed to the Corporation by the
Account Owner and the proceeds thereof; upon the filing of the financing
statements and, in the case of Receivables hereafter created and the
proceeds thereof, upon the creation thereof, the Corporation shall have a
first priority perfected ownership interest in such property and proceeds;
(vi) on the Initial Cut-Off Date, each Initial Account is an
Eligible Account and, in the case of Additional Accounts, on the Addition
Cut-Off Date, each related Additional Account is an Eligible Account;
(vii) on the Initial Cut-Off Date, each Receivable then existing and
conveyed to the Corporation is an Eligible Receivable, and in the case of
Additional Accounts, on the applicable Addition Cut-Off Date, each
Receivable contained in such Additional Account and conveyed to the
Corporation is an Eligible Receivable;
11
(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 the Account Owner to be
materially adverse to the interests of the Corporation or the Investor
Certificateholders 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 the Corporation and the transfer and assignment by the
Corporation to the Trust. Upon discovery by either the Account Owner, the
Corporation, the Servicer or the Trustee of a breach of any of the
representations and warranties set forth in this Section 4.02, the party
discovering such breach shall give prompt written notice to the others. The
Account Owner hereby acknowledges that the Corporation intends to rely on the
representations hereunder in connection with representations made by the
Corporation to secured parties, assignees or subsequent transferees including
but not limited to transfers made by the Corporation to the Trust pursuant to
the Pooling and Servicing Agreement and that the Trustee may enforce such
representations directly against the Account Owner.
Section 4.03. Representations and Warranties of the Corporation. As
of the Initial Closing Date, the Corporation hereby represents and warrants to,
and agrees with, the Account Owner that:
(a) Organization and Good Standing. The Corporation 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 or lease its
properties and conduct its business as such properties are presently owned or
leased and such business is presently conducted and to execute, deliver and
perform its obligations under this Agreement.
(b) Due Authorization. The execution and delivery of this Agreement
and the Conveyance Papers and the consummation of the transactions provided for
in this Agreement and the Conveyance Papers have been duly authorized by the
Corporation by all necessary corporate action on the part of the Corporation.
(c) No Conflict. The execution and delivery of this Agreement and
the Conveyance Papers by the Corporation, 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 the Account
Owner, 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 the Corporation 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 the Corporation and the fulfillment of
the terms
12
contemplated herein and therein applicable to the Corporation will not conflict
with or violate any Requirements of Law applicable to the Corporation.
(e) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Corporation, threatened against the
Corporation, before any court, regulatory body, administrative agency, or other
tribunal or governmental instrumentality (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
the Corporation, would materially and adversely affect the performance by the
Corporation of its obligations under this Agreement or the Conveyance Papers or
(iv) seeking any determination or ruling that, in the reasonable judgment of the
Corporation, 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 the Corporation in connection with the
execution and delivery by the Corporation 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; except for approvals, authorizations, consents or orders
which if not obtained will not individually or in the aggregate have any
material adverse effect upon the ability of the Corporation to execute, deliver
and perform under this Agreement and the Conveyance Papers.
The representations and warranties set forth in this Section 4.03
shall survive the conveyance of the Receivables to the Corporation and the
conveyance by the Corporation to the Trust. Upon discovery by the Corporation or
the Account Owner of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give written notice to the
other party and the Trustee within three Business Days following such discovery.
ARTICLE V
COVENANTS
Section 5.01. Covenants of the Account Owner. The Account Owner
hereby covenants and agrees with and for the benefit of the Corporation as
follows:
(a) Receivables To Be Accounts or General Intangibles. Except in
connection with its enforcement or collection of a Receivable, the Account Owner
will take no action to cause any Receivable to be evidenced by any instrument or
chattel paper (as defined in the UCC) and, if any Receivable is so evidenced, it
shall be deemed to be an Ineligible Receivable in accordance with Section
6.01(a) hereof and shall be reassigned to the Account Owner in accordance with
Section 6.01(b) hereof; provided, however, that
13
Receivables evidenced by notes taken from Obligors in the ordinary course of
business of the Servicer's collection efforts shall not be deemed Ineligible
Receivables solely as a result thereof. In addition, the Account Owner agrees
that it will not take any other action to cause any Receivable to be anything
other than an "account" or a "general intangible" (as such terms are defined in
the UCC as in effect in the State of Delaware).
(b) Security Interests. Except for the conveyance hereunder, the
Account Owner will not sell, pledge, assign or transfer to any other Person, or
take any other action inconsistent with the Corporation's ownership of the
Receivables and other Purchased Assets or grant, create, incur, assume or suffer
to exist any Lien on any Receivable or other Purchased Assets, whether now
existing or hereafter created, or any interest therein, and the Account Owner
shall not claim any ownership interest in the Receivables or in other Purchased
Assets and shall defend the right, title and interest of the Corporation in, to
and under the Receivables and other Purchased Assets, whether now existing or
hereafter created, against all claims of third parties claiming through or under
the Account Owner; provided, however, that nothing in this subsection 5.01(b)
shall prevent or be deemed to prohibit the Account Owner from suffering to exist
upon any of the Receivables transferred by it to the Corporation any Liens for
municipal or other local taxes if such taxes shall not at the time be due and
payable or if the Account Owner shall be currently contesting the validity
thereof in good faith by appropriate proceedings and shall have set aside on its
books adequate reserves with respect thereto.
(c) Account Allocations. In the event that the Account Owner is
unable for any reason to transfer Receivables to the Corporation in accordance
with the provisions of this Agreement (including, without limitation, by reason
of the application of the provisions of Section 8.02 hereof or any order of any
Governmental Authority), then, in any such event, the Account Owner agrees
(except as prohibited by any such order) to allocate and pay to the Corporation,
after the date of such inability, all amounts in the manner by which the
Corporation will allocate and pay to the Trust after such inability by the
Corporation pursuant to Section 2.11 of the Pooling and Servicing Agreement.
(d) Delivery of Collections. In the event that the Account Owner
receives Collections, the Account Owner agrees to pay to the Corporation (or to
the Servicer if the Corporation so directs) all such Collections as soon as
practicable after receipt thereof.
(e) Notice of Liens. The Account Owner shall notify the Corporation
promptly after becoming aware of any Lien on any Receivable other than the
conveyances hereunder and under the Pooling and Servicing Agreement or Liens
permitted under subsection 5.01(b) hereof.
(f) Documentation of Transfer. The Account Owner shall undertake to
file the documents which would be necessary to perfect and maintain the transfer
of the Purchased Assets to the Corporation. This Agreement and any amendments
hereto will be maintained, continuously, as an official record of the Account
Owner.
14
(g) Sale. The Account Owner agrees to treat the Conveyance, for all
purposes (including all relevant tax and financial accounting purposes) as a
sale on all federal and state tax returns, financial statements and other
applicable documents.
Section 5.02. Covenants of the Account Owner with Respect to
Portfolio Yield and Cardholder Agreements. The Account Owner, hereby agrees, for
the benefit of the Corporation that:
(a) Periodic Finance Charges and Other Fees. (i) Except (x) as
otherwise required by any Requirement of Law, or (y) as is deemed by the Account
Owner to be necessary in order for it to maintain its credit card business on a
competitive basis based on a good faith assessment by it of the nature of its
competition in the credit card business, it shall not at any time reduce the
annual percentage rate of the Periodic Finance Charges assessed on the
Receivables transferred by it to the Corporation or other fees charged on any of
the Accounts if, as a result of any such reduction, either (i) the Account
Owner's reasonable expectation is that such reduction will cause a Pay Out Event
or Reimbursement Event to occur or (ii) such reduction is not also applied to
any comparable segments of consumer revolving credit card accounts owned by the
Account Owner which have characteristics the same as, or substantially similar
to, such Accounts.
(b) Cardholder Agreements and Credit Card Guidelines. The Account
Owner shall comply with and perform its obligations under the Cardholder
Agreements relating to the Accounts and the Credit Card Guidelines and all
applicable rules and regulations of MasterCard and VISA or their respective
substantial equivalents except insofar as any failure so to comply or perform
would not materially and adversely affect the rights of the Trust or the
Certificateholders under the Pooling and Servicing Agreement. Subject to
compliance with all Requirements of Law, the Account Owner may change the terms
and provisions of the Cardholder Agreements or the Credit Card Guidelines with
respect to any of the Accounts in any respect (including the calculation of the
amount or the timing, of charge-offs and the Periodic Finance Charges and other
fees to be assessed thereon) only if in the reasonable judgment of the Account
Owner such change is made applicable to any comparable segment of the consumer
revolving credit card accounts owned by the Account Owner which have
characteristics the same as, or substantially similar to, such Accounts.
(c) MasterCard and VISA. The Account Owner, to the extent applicable
to Accounts owned or serviced by it, shall use its best efforts to remain,
either directly or indirectly, a member in good standing of the MasterCard
system, the VISA system and any other similar entity's or organization's system
relating to any other type of consumer revolving credit card accounts included
as Accounts.
(d) Provide Information. The Corporation covenants that, if, at any
time, the Account Owner is not the Servicer under the Pooling and Servicing
Agreement, the Corporation will provide the Account Owner with such information
as the Account Owner may reasonably request to enable the Account Owner to
determine compliance with the covenants contained in Section 5.02(a) and (b)
above.
15
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables.
(a) In the event (i) any representation or warranty under Section
4.02(a)(ii), (iii), (iv), (vi), (vii), (viii) or (ix) is not true and correct in
any material respect as of the date specified therein with respect to any
Receivable or the related Account or (ii) there is a breach of the covenant set
forth in Section 5.01(a) hereof and as a result of such untrue or incorrect
representation or warranty or such breach the Corporation is required to accept
reassignment of Ineligible Receivables previously sold by the Account Owner to
the Corporation pursuant to Section 2.05(a) of the Pooling and Servicing
Agreement, the Account Owner shall accept reassignment of the Corporation's
interest in such Ineligible Receivables on the terms and conditions set forth in
Section 6.01(b) hereof.
(b) the Account Owner shall accept reassignment of any Ineligible
Receivables previously sold by the Account Owner to the Corporation from the
Corporation on the date on which such reassignment obligation arises, and shall
pay for such reassigned Ineligible Receivables by paying to the Corporation, not
later than 3:00 p.m., New York City time on such date, an amount equal to the
unpaid principal balance of such Ineligible Receivables plus 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 (the "Repurchase Price"). Upon reassignment of
such Ineligible Receivables, the Corporation shall automatically and without
further action be deemed to sell, transfer, assign, set-over and otherwise
convey to the Account Owner, without recourse, representation or warranty, all
the right, title and interest of the Corporation in and to such Ineligible
Receivables, all monies due or to become due with respect thereto and all
proceeds thereof; and such reassigned Ineligible Receivables shall be treated by
the Corporation as collected in full as of the date on which they were
transferred. The Corporation shall execute such documents and instruments of
transfer or assignment and take such other actions as shall reasonably be
requested by the Account Owner to effect the conveyance of such Ineligible
Receivables pursuant to this subsection.
Section 6.02. Reassignment of Receivables in Trust Portfolio. In the
event any representation or warranty set forth in Section 4.01(a) or (c) or
Section 4.02(a)(i) or (a)(v) hereof is not true and correct in any material
respect and, as a result of such breach, the Corporation is required to accept a
reassignment of the Receivables previously sold by the Account Owner to the
Corporation pursuant to Section 2.06 of the Pooling and Servicing Agreement, the
Account Owner shall be obligated to accept a reassignment of the Corporation's
interest in such Receivables on the terms set forth below.
16
The Account Owner shall pay to the Corporation by depositing in the
Collection Account in immediately available funds, not later than 12:00 noon New
York City time, on the first Distribution 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 Pooling and
Servicing Agreement.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to the Corporation's Obligations Regarding
Initial Receivables. The obligations of the Corporation to purchase the
Receivables in the Initial Accounts on the Initial Closing Date shall be subject
to the satisfaction of the following conditions:
(a) All representations and warranties of the Account Owner
contained in this Agreement shall be true and correct on the Initial 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 the
Corporation shall be true and correct in all material respects as of the Initial
Cut-Off Date;
(c) the Account Owner shall have (i) delivered to the Corporation a
schedule of Accounts 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) the Account Owner 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 Section 9-106 of the UCC)
meeting the requirements of applicable state law in such manner and in such
jurisdiction as would be necessary to perfect the sale of and security interest
in the Receivables and other Purchased Assets from the Account Owner to the
Corporation, and shall deliver a file-stamped copy of such financing statements
or other evidence of such filings to the Corporation;
(e) On or before the Initial Closing Date, the Corporation and the
Trustee shall have entered into the Pooling and Servicing Agreement and the
closing under the Pooling and Servicing Agreement 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 the Corporation, and the Corporation shall
have received from the Account Owner copies of all documents (including, without
limitation, records of corporate proceedings) relevant to the transactions
herein contemplated as the Corporation may reasonably have requested.
17
Section 7.02. Conditions Precedent to the Account Owner's
Obligations. The obligations of the Account Owner to sell Receivables in the
Initial Accounts on the Initial Closing Date shall be subject to the
satisfaction of the following conditions:
(a) All representations and warranties of the Corporation 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;
(b) Payment or provision for payment of the Purchase Price in
accordance with the provision of Section 3.01 hereof shall have been made; and
(c) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Account Owner, and the Account Owner
shall have received from the Corporation copies of all documents (including,
without limitation, records of corporate proceedings) relevant to the
transactions herein contemplated as the Account Owner may reasonably have
requested.
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 the termination of the
Trust as provided in Article XII of the Pooling and Servicing Agreement.
Section 8.02. Purchase Termination. If the Account Owner 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
the Account Owner 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 the Account Owner or for
any substantial part of the Account Owner's property, or for the winding-up or
liquidation of the Account Owner's affairs and, if instituted against the
Account Owner, any such proceeding shall continue undismissed or unstayed and in
effect, for a period of 60 consecutive days, or any of the actions sought in
such proceeding shall occur; or if the Account Owner shall commence a voluntary
case under any Debtor Relief Law, or if the Account Owner 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 the Account Owner or any
subsidiary of the Account Owner shall have taken any corporate action in
furtherance of any of the foregoing actions (each an "Insolvency Event"); then
the Account Owner shall immediately cease to transfer Principal Receivables to
the Corporation and shall promptly give notice to the Corporation and the
Trustee of such Insolvency Event.
18
Notwithstanding any cessation of the transfer to the Corporation of additional
Principal Receivables, Principal Receivables transferred to the Corporation
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 the Corporation available for transfer by the Corporation to the Trust
pursuant to the Pooling and Servicing Agreement.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment. This Agreement and any Conveyance Papers
and the rights and obligations of the parties hereunder may not be changed
orally, but only by an instrument in writing signed by the Corporation and the
Account Owner in accordance with this Section 9.01. This Agreement and any
Conveyance Papers may be amended from time to time by the Corporation and the
Account Owner (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 the Account Owner or the
Corporation; provided, however, that no amendment pursuant to clause (iv) or (v)
of this Section 9.01 shall be effective unless the Account Owner and the
Corporation have been notified in writing that the Rating Agency Condition has
been satisfied; provided, further, that such action shall not (as evidenced by
an Opinion of Counsel delivered to the Trustee) adversely affect in any material
respect the interests of the Trustee or the Investor Certificateholders, unless
the 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 each
Rating Agency.
Section 9.02. Governing Law. THIS AGREEMENT AND THE CONVEYANCE
PAPERS SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
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 the Account Owner, Travelers Bank & Trust, fsb, 000
Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000 (telephone: 000-000-0000), (b) in the
case of the Corporation, CC Credit Card Corporation, 000 Xxxxxxxx Xxxxx, Xxxxx
000X, Xxxxxx, Xxxxxxxx 00000 (telephone: 000-000-0000), or (c) in the case of
the Trustee, The Bank of New York, 000 Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx,
19
New York 10286, Attention: Corporate Trust Department--Trustee; 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 Agreement or any Conveyance
Paper and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of any Conveyance Paper.
Section 9.05. Assignment. Notwithstanding anything to the contrary
contained herein, other than the Corporation's assignment of its rights, title,
and interests in, to, and under this Agreement to the Trustee for the benefit of
the beneficiaries of the Trust, including the Certificateholders as contemplated
by the Pooling and Servicing Agreement and Section 9.06 hereof, this Agreement
and all other Conveyance Papers may not be assigned by the parties hereto;
provided, however, that the Account Owner shall have the right to assign its
rights, title and interests, in to and under this Agreement to (i) any successor
by merger assuming this Agreement (ii) to any affiliate owned directly or
indirectly by Commercial Credit Company which assumes the obligations of this
Agreement or (iii) to any entity provided that the Rating Agency Condition has
been satisfied.
Section 9.06. Acknowledgement and Agreement of the Account Owner. By
execution below, the Account Owner expressly acknowledges and agrees that all of
the Corporation's right, title, and interest in, to, and under this Agreement,
including, without limitation, all of the Account Owner's right, title, and
interest in and to the Receivables and other Purchased Assets purchased pursuant
to this Agreement, shall be assigned by the Corporation to the Trustee for the
benefit of the beneficiaries of the Trust, including the Certificateholders, and
the Corporation consents to such assignment. The Account Owner further agrees
that notwithstanding any claim, counterclaim, right of setoff or defense which
it may have against the Corporation, due to a breach by the Corporation of this
Agreement or for any other reason, and notwithstanding the bankruptcy of the
Corporation or any other event whatsoever, the Account Owner's sole remedy shall
be a claim against the Corporation for money damages and, then only to the
extent of funds received by the Corporation pursuant to the Pooling and
Servicing Agreement, and in no event shall the Corporation assert any claim on
or any interest in the Receivables and other Purchased Assets or any proceeds
thereof or take any action which would reduce or delay receipt by
Certificateholders of collections with respect to the Receivables and other
Purchased Assets. Additionally, the Account Owner agrees for the benefit of the
Trustee that any amounts payable by the Account Owner to the Corporation
hereunder which are to be paid by the Corporation to the Trustee for the benefit
of the Certificateholders shall be paid by the Corporation, on behalf of the
Corporation, directly to the Trustee.
Section 9.07. Further Assurances. The Account Owner and the
Corporation 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 or the Trustee more
20
fully to effect the purposes of this Agreement, the Conveyance Papers and the
Pooling and Servicing Agreement, including, without limitation, the execution of
any financing statements or continuation statements or equivalent documents
relating to the Receivables and other Purchased Assets 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 the Corporation or the Account Owner,
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. Subject to Section
9.06, the rights, remedies, powers and privileges herein provided are cumulative
and not exhaustive of any rights, remedies, powers and privileges provided by
law.
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
Trustee shall be considered a third-party beneficiary 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 the
Corporation to the Trust pursuant to the Pooling and Servicing Agreement.
21
Section 9.15. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, the Account Owner 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 the Corporation to invoke the
process of any Governmental Authority for the purpose of commencing or
sustaining a case against the Corporation under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Corporation or
any substantial part of its property or ordering the winding-up or liquidation
of the affairs of the Corporation.
22
IN WITNESS WHEREOF, the Corporation and the Account Owner have
caused this Receivables Transfer Agreement to be duly executed by their
respective officers as of the day and year first above written.
TRAVELERS BANK & TRUST, fsb,
as Account Owner
By: /s/ Xxxxxxx Xxxx
-------------------------
Name: Xxxxxxx Xxxx
Title: SVP & CFO
CC CREDIT CARD CORPORATION,
as Corporation
By: /s/ Xxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
[Signature Page to Receivables Transfer Agreement]
EXHIBIT A
FORM OF SUPPLEMENTAL CONVEYANCE
(As required by Section 2.04 of
the Receivables Transfer Agreement)
SUPPLEMENTAL CONVEYANCE No. dated as of , 19 , by and between
TRAVELERS BANK & TRUST, fsb, as Account Owner ("the Account Owner"), and CC
CREDIT CARD CORPORATION as Corporation (the "Corporation"), pursuant to the
Receivables Transfer Agreement referred to below.
WITNESSETH:
WHEREAS, the Corporation and the Account Owner are parties to a
Receivables Transfer Agreement, dated as of March 1, 1998 (hereinafter as such
agreement may have been, or may from time to time be, amended, supplemented or
otherwise modified, the "Receivables Transfer Agreement");
WHEREAS, pursuant to the Receivables Transfer Agreement, the
Corporation wishes to designate Additional Accounts to be included as Accounts
and the Account Owner wishes to convey its right, title and interest in the
Receivables of such Additional Accounts, whether now existing or hereafter
created, to the Corporation pursuant to the Receivables Transfer Agreement (as
each such term is defined in the Receivables Transfer Agreement); and
WHEREAS, the Corporation is willing to accept such designation and
conveyance subject to the terms and conditions hereof.
NOW, THEREFORE, the Corporation and the Account Owner hereby agree
as follows:
1. Defined Terms. All capitalized terms used herein shall have the
meanings ascribed to them in the Receivables Transfer Agreement unless otherwise
defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby, ________________, 19__.
"Addition Cut-Off Date" shall mean, with respect to the Additional
Accounts designated hereby, _________ __, 19__.
2. Designation of Additional Accounts. The Account Owner delivers
herewith a computer file or microfiche list containing a true and complete
schedule
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identifying all such Additional Accounts and specifying for each such Account,
as of the Addition 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 (each
an "Account Schedule") shall be as of the date of this Supplemental Conveyance
incorporated into and made part of this Supplemental Conveyance and is marked as
Schedule I to this Supplemental Conveyance.
3. Conveyance of Receivables.
(a) The Account Owner does hereby sell, transfer, assign, set over
and otherwise convey to the Corporation, without recourse except as provided in
the Receivables Transfer Agreement, all its right, title and interest in, to and
under the Receivables generated by such Additional Accounts, existing at the
close of business on the Addition Cut-Off Date and thereafter created until
termination of the Receivables Transfer Agreement, all monies due or to become
due and all amounts received with respect thereto and all "proceeds" (including,
without limitation, "proceeds" as defined in Article 9 of the UCC) thereof (but
not including the right to receive Recoveries with respect to such Receivables).
(b) In connection with such sale, the Account Owner 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 now existing and hereafter created, for the transfer
of accounts and general intangibles 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 the
Corporation, and to deliver a file-stamped copy of such financing statement or
other evidence of such filing to the Corporation.
(c) In connection with such sale, the Account Owner further agrees,
at its own expense, on or prior to the date of this Supplemental Conveyance, (i)
to indicate in its computer files with the code ____ or ____ or any other
clearly specified code in the FDR Account Flagged field of such computer files
that the Receivables created in connection with such Additional Accounts have
been conveyed to the Corporation in accordance with the Receivables Transfer
Agreement and this Supplemental Conveyance and have been conveyed by the
Corporation to the Trustee pursuant to the Pooling and Servicing Agreement for
the benefit of the Certificateholders by including in such computer files the
code identifying each such Account and (ii) to deliver to the Corporation or the
Trustee, as the Corporation's nominee, a computer file or microfiche list
containing a true and complete list of all Receivables created in connection
with the Additional Accounts designated hereby which have been conveyed to the
Corporation pursuant to this Supplemental Conveyance.
4. Acceptance by the Corporation. The Corporation hereby
acknowledges its acceptance of all right, title and interest to the property,
now existing and hereafter created, conveyed to the Corporation pursuant to
Section 3(a) of this Supplemental Conveyance, and declares that it shall
maintain such right, title and interest. The Corporation further acknowledges
that, prior to or simultaneously with the execution and delivery of this
Supplemental Conveyance, the Account Owner delivered to the Corporation the
computer file or microfiche list described in Section 2 of this Supplemental
Conveyance.
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5. Representations and Warranties of the Account Owner. The Account
Owner hereby represents and warrants to the Corporation 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 the Account
Owner enforceable against the Account Owner in accordance with its terms, except
as such enforceability may be limited 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;
(b) Eligibility of Accounts. On the Addition Cut-Off Date, each
Additional Account designated hereby is an Eligible Account;
(c) No Liens. Each Receivable in an Additional Account designated
hereby has been conveyed to the Corporation free and clear of any Lien;
(d) Eligibility of Receivables. On the Addition 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 the
Account Owner to be adverse to the interests of the Corporation or the Investor
Certificateholders was utilized in selecting the Additional Accounts;
(f) Transfer of Receivables. This Supplemental Conveyance
constitutes a valid sale, transfer and assignment to the Corporation of all
right, title and interest of the Account Owner in the Receivables arising in the
Additional Accounts designated hereby now existing or hereafter created, all
monies due or to become due, all amounts received with respect thereto, the
"proceeds" (including, without limitation, "proceeds" as defined in Article 9 of
the UCC) thereof and the Recoveries with respect thereto;
(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 the Account Owner is a party or by which it or its
properties are bound;
(h) No Violation. The execution and delivery of this Supplemental
Conveyance by the Account Owner, the performance of the transactions
contemplated by this Supplemental Conveyance and the fulfillment of the terms
hereof applicable to the Account Owner will not conflict with or violate any
Requirements of Law applicable to the Account Owner;
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(i) No Proceedings. There are no proceedings or investigations,
pending or, to the best knowledge of the Account Owner, threatened against the
Account Owner 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 the Account Owner,
would materially and adversely affect the performance by the Account Owner 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 court or other governmental authority required to be obtained by the
Account Owner in connection with the execution and delivery of this Supplemental
Conveyance by the Account Owner and the performance of the transactions
contemplated by this Supplemental Conveyance by the Account Owner, have been
obtained, except for authorizations, consents, orders or approvals which, if not
obtained, will not individually or in the aggregate have any material adverse
effect upon the conveyance of the Receivables to the Corporation or the ability
of the Account Owner to execute and deliver this Supplemental Conveyance or to
perform the transactions contemplated hereby.
6. Ratification of the Receivables Transfer Agreement. The
Receivables Transfer Agreement is hereby ratified, and all references to the
"Receivables Transfer Agreement," to "this Agreement" and "herein" shall be
deemed from and after the Addition Date to be a reference to the Receivables
Transfer Agreement as supplemented by this Supplemental Conveyance. Except as
expressly amended hereby, all the representations, warranties, terms, covenants
and conditions of the Receivables Transfer 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 Transfer 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 Delaware, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined is accordance with such laws.
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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.
CC CREDIT CARD CORPORATION
By: __________________________________
Name:_____________________________
Title:____________________________
TRAVELERS BANK & TRUST, fsb
By: __________________________________
Name:_____________________________
Title:____________________________
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Schedule I to
Supplemental
Conveyance
Additional Accounts
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Schedule I
to Receivables
Transfer Agreement
LIST OF ACCOUNTS
DEEMED INCORPORATED BY REFERENCE
