Exhibit 10.1
AGREEMENT RELATING TO
FLEET CREDIT CARD SERVICES, L.P.
THIS AGREEMENT (the "AGREEMENT") is made and entered into as of the 28th
day of May, 2004 (the "EFFECTIVE DATE"), by and between ADVANTA CORP. ("AC"),
ADVANTA NATIONAL BANK ("ANB"), ADVANTA SERVICE CORP. ("ASC"), FLEET CREDIT CARD
HOLDINGS, INC. ("FCCH"), FLEET CREDIT CARD SERVICES, L.P. ("SERVICES") and BANK
OF AMERICA CORP. ("BAC"). AC, ANB and ASC are sometimes referred to herein
individually as an "ADVANTA PARTNER" and collectively as "ADVANTA." Each Advanta
Partner, FCCH, Services and BAC are sometimes referred to herein individually as
a "PARTY" and collectively as the "PARTIES." Any capitalized term used in this
Agreement and not otherwise defined herein shall have the same meaning given
such term in the Limited Partnership Agreement of Fleet Credit Card Services,
L.P., dated as of May 26, 1998 (the "LIMITED PARTNERSHIP AGREEMENT").
STATEMENT OF PURPOSE
Since February 20, 1998, Services (or its predecessor, Fleet Credit Card
LLC) has owned and operated the consumer credit card business of FleetBoston
Financial Corporation and its Affiliates (collectively "FLEET"), which business
resulted from the contribution by Advanta and Fleet Financial Group, Inc. (the
predecessor to Fleet) of the assets and liabilities of their respective consumer
credit card businesses to Fleet Credit Card LLC pursuant to that certain
Contribution Agreement, dated as of October 28, 1997, as amended (the
"CONTRIBUTION AGREEMENT"). Services is a Rhode Island limited partnership that
is governed by the terms and conditions of the Limited Partnership Agreement.
FCCH is the sole general partner of Services and owns a 98.7% Interest in
Services, and AC, ANB and ASC are the sole limited partners in Services and
collectively own a 1.3% Interest in Services. Effective as of April 1, 2004,
Fleet merged with and into BAC, with BAC being the survivor corporation. BAC now
desires to combine the credit card business owned and operated by Services with
BAC's consumer credit card business primarily owned and operated by BAC's
subsidiary, Bank of America, N.A. (USA) ("BANA(USA)"), and BAC and Advanta also
desire to settle certain issues that have arisen relating to the ownership and
operation of, and contributions to, Services, all as set forth in this
Agreement.
ACCORDINGLY, in consideration of the premises and the mutual covenants and
agreements set forth below, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto hereby agree as follows:
1. STRUCTURE OF COMBINED CREDIT CARD BUSINESS.
(a) Drop Down. As soon as reasonably practicable following the Effective
Date, BAC and Services shall cause their respective credit card businesses to be
combined into a single new entity (referred to herein as "NEWCO"), which shall
be a limited liability company or limited partnership, as selected by BAC in its
sole discretion. This combination into Newco shall be referred to as the "DROP
DOWN" structure and shall be accomplished by the contribution by Services of all
of its assets and liabilities to Newco and by the contribution of all of the
assets
and liabilities of BAC's consumer credit card business to Newco; provided,
however, certain of the credit card assets and liabilities of BAC's credit card
business may be transferred to Newco through a rights or participation
agreement. Anything in this Agreement to the contrary notwithstanding, BAC,
BANA(USA), Newco and Services covenant that no Advanta Partner shall recognize
any taxable income or gain, directly or indirectly, as a result of the transfer
of the assets and liabilities of Services to Newco pursuant to the Drop Down;
provided, however, each Advanta Partner's sole remedy for any breach of this
covenant shall be a claim for indemnification to the extent applicable under
Subparagraph 1(d)(ii)(A)(2) below.
(b) Ownership. The initial owners of Newco shall be Services and
BANA(USA) (or, as determined by BAC in its sole discretion, a subsidiary of
BANA(USA)) (the "BANA(USA) OWNER"), and the percentage ownership interest of
each such owner in Newco shall be equal to the quotient of (i) the fair market
value of such owner's business contributed to Newco divided by (ii) the sum of
the fair market values of both owner's businesses contributed to Newco;
provided, however, that the product of (A) the fair market value of Services'
business times (B) 1.3% shall not be less than $38.0 million. Subject to the
preceding sentence, the determination of the fair market value of each of these
businesses shall be made as soon as possible after the Effective Date by Xxxxxxx
Xxxxx & Co. and Xxxxxxx Sachs & Co.'s appraisal shall be final and binding on
the Parties hereto. The fees paid to Xxxxxxx Xxxxx & Co. for its valuation
services shall be paid equally by Services and BAC. Effective upon the
consummation of the Drop Down, Advanta's Percentage in Services shall be 1.3%,
and, from and after the Drop Down, Advanta's interest in Newco shall only be
indirect through its Interest in Services, and Advanta shall not be a partner,
member or other owner of Newco.
(c) Future Acquisitions. Neither Services nor Advanta shall be entitled
in any way, directly or indirectly, to participate in or benefit from any single
credit card portfolio acquisition having an aggregate acquisition cost in excess
of $250 million or other business acquired by or contributed to Newco (or any
other BAC subsidiary or affiliate) (an "ACQUISITION") after the Effective Date,
and in the event of any such Acquisition(s) by Newco, Newco's governing
documents shall be modified as necessary, in BAC's discretion, to cause all
participation in or benefit from such Acquisition(s) to inure solely to the
benefit of the BANA(USA) Owner. Notwithstanding the foregoing, neither the
acquisition by Newco of BAC's consumer credit card business pursuant to the Drop
Down structure set forth in Paragraph 1(a) above nor the acquisition of credit
card accounts or receivables in the ordinary course of business of Newco shall
be deemed to be an Acquisition for the purposes of this Agreement. In connection
with any Acquisition, BAC shall cause Newco to be compensated for Newco's costs
plus a reasonable profit (which may provide for less profit than an arms length
agreement with a third-party provider due to economies of scale generated by
Newco's business and such Acquisition) for the use of any Newco property or
personnel by any such acquired business in which Advanta and Services do not
participate.
(d) Governance. Newco shall be governed by an operating agreement (or,
if applicable, limited partnership agreement) that will provide that the
BANA(USA) Owner will be the manager (or general partner) of Newco and of the
combined business with the sole authority, subject to Subparagraph 1(d)(i)
below, to operate Newco in the best interest of Newco in its sole discretion
without any requirement to obtain Services' approval, except as may be required
by applicable law. Newco's governing documents shall also have no requirement to
obtain
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Advanta's consent for any purpose. Newco's initial governing documents shall be
agreed upon and executed by Services and the BANA(USA) Owner and Newco's owners
shall have the right to amend such governing documents in their discretion from
time to time; provided, however, as long as any Advanta Partner is a Partner in
Services, Newco's governing documents shall be required to include provisions in
substantially the following form:
(i) Newco and each of its owners shall not
(A) approve any act that would reduce the Percentage owned
by Advanta in Services below 1% in the aggregate;
(B) reduce the total amount of (x) the indebtedness of
Services and (y) the indebtedness of Newco that is allocable to
Services (the sum of (x) and (y) being hereafter referred to as the
"ALLOCABLE INDEBTEDNESS") if the reduction causes the amount of any
Advanta Partner's share of the Allocable Indebtedness to be less
than such Advanta Partner's Deficit Balance Amount (as defined
below). For purposes of this Agreement, the term "DEFICIT BALANCE
AMOUNT" means an amount, to the extent such amount is negative,
equal to the adjusted income tax basis of an Advanta Partner's
Interest computed without taking into account the increase in such
Advanta Partner's adjusted income tax basis attributable to such
Advanta Partner's share of liabilities of Services;
(C) approve any sale, transfer or other disposition of
Newco's property or assets that were Restricted Sale Assets at
Services, if any such sale, transfer or other disposition would
result in the recognition of gain or income to any Advanta Partner
under Section 704(c) of the Code;
(D) make any election that would result in Services being
taxed as other than a "partnership" for federal income tax purposes,
including (but not limited to) electing to be taxed as other than a
"partnership" by filing Form 8832, "Entity Classification Election"
or making any election inconsistent with Section 4.5.3 of the
Limited Partnership Agreement;
(E) on or before February 20, 2009, make any distribution of
Services property (other than money) to any Advanta Partner; or
(F) approve any activities of Services or Newco that are not
part of or incidental to the business of banking or are not
permissible for any operating subsidiary of a national bank.
To the extent that Newco or any of its owners breaches any of the above
provisions (other than Subparagraph 1(d)(i)(F)), Advanta's sole remedy
shall be a claim for indemnification to the extent applicable under
Subparagraph 1(d)(ii) below.
(ii) (A) Newco, its owners, BAC and BANA(USA) shall indemnify,
defend and hold harmless Advanta from and against any and all
Damages for Indemnified Taxes (as defined below) owed or incurred by
Advanta or any Advanta Affiliate as the result of (1) Newco or any
of its owners taking any action
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in violation of the provisions of Subparagraph 1(d)(i) above or (2)
the transfer of the assets and liabilities of Services to Newco
pursuant to the Drop Down; provided, however, such indemnification
shall not include any indemnity for Damages for Indemnified Taxes
relating to the Book/Tax Differential. The amount of the Indemnified
Taxes for purposes of this indemnification shall be computed in the
manner set forth in Section 7.2.6 of the Limited Partnership
Agreement, to the extent that such section specifies the procedure
for identifying the person that makes this computation. Payments to
Advanta under this indemnification provision shall be "grossed-up"
in the same manner as described in Section 6.4.3 of the Limited
Partnership Agreement.
(B) For purposes of this indemnification, the term
"INDEMNIFIED TAXES" shall mean Taxes owed or incurred due to (1) the
recognition of gain or income pursuant to Section 704(c) of the Code
for up to the $540,909,000 amount of built-in gain of the Restricted
Sale Assets (the "BUILT-IN GAIN AMOUNT") upon any sale, transfer or
other disposition of any such Restricted Sale Assets or (2) the
recognition of gain or income as the result of a breach of
Subparagraph 1(d)(i)(B) above. The Built-in Gain Amount and the
Deficit Balance Amount shall be adjusted by the amount of the gain
recognition for which indemnity payments, if any, are payable to
Advanta from time to time pursuant to this Subparagraph 1(d)(ii).
(C) Indemnification procedures shall be substantially
similar to Section 6.5 of the Limited Partnership Agreement (as
amended by this Agreement).
(iii) BAC shall cause Newco to provide copies of Newco's quarterly
and annual financial statements to Services on a timely basis, and
Services agrees to transmit such information to each Advanta Partner
promptly upon receipt.
(e) BAC Covenant. Notwithstanding any other provision herein to the
contrary, BAC shall assume the obligations of Fleet and Fleet's Affiliates
(other than Services) under the terms of the Limited Partnership Agreement and
the Contribution Agreement, and Advanta shall have the right to enforce such
obligations against BAC directly without the necessity to make demand on any
other Person.
2. LIMITED PARTNERSHIP AGREEMENT MATTERS.
(a) Consent to Drop Down. To the extent required by the Limited
Partnership Agreement and subject to the provisions of this Agreement (other
than Paragraph 3 below), each Advanta Partner hereby consents to the Drop Down.
In this regard, Advanta acknowledges that BAC intends after the Effective Date,
and before and after the consummation of the Drop Down, to consolidate and
outsource operations, close facilities, hire and terminate employees, acquire
and dispose of assets and perform such other activities to operate the business
and attain best practices in the discretion of BAC with respect to the business
of Services and the combined business of Newco. Advanta's consent to the Drop
Down is without prejudice to their rights to indemnification as provided in
Subparagraph 1(d)(ii)(A)(2) above as a result of the transfer of the assets and
liabilities of Services to Newco pursuant to the Drop Down.
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(b) Amendments to Limited Partnership Agreement. The Limited Partnership
Agreement is hereby amended as follows:
(i) Section 4.6 is hereby deleted in its entirety and the
following new Section 4.6 is substituted in lieu thereof:
"4.6 Net Gains from Sales. Net Gains from Sales shall be
allocated as follows: A percentage of the Net Gains from Sales
shall be allocated to the Advanta Partners and the balance
shall be allocated to the Fleet Partners. The percentage
referred to in the immediately preceding sentence shall (A) be
zero with respect to any Advanta Partner that does not have a
Deficit Balance Amount (as defined in Section 5.7.2) and (B)
with respect to each Advanta Partner that has a Deficit
Balance Amount, be determined by dividing the Deficit Balance
Amount (which for this purpose shall be a positive number) of
such Advanta Partner by the outstanding Company "excess
nonrecourse liabilities" (within the meaning of Section
1.752-3(a)(3) of the Regulations) at the end of the fiscal
year or at other applicable times (including immediately
before a disposition giving rise to the Net Gains from Sales),
and expressing the resulting decimal as a percentage."
(ii) The second sentence of Section 4.7.2 is hereby deleted in its
entirety and the following new sentence is substituted in lieu thereof:
"Notwithstanding the immediately preceding sentence, the
Company shall compute the amount of nonrecourse liabilities
allocable to the Advanta Partners in such manner, and
utilizing such conventions and methodologies, so as to
maximize the amount of nonrecourse liabilities allocable to
the Advanta Partners under Section 1.752-3(a) of the
Regulations."
(iii) Section 5.7.1 is hereby deleted in its entirety and the
following new Section 5.7.1 is substituted in lieu thereof:
"5.7.1 approving any act that would reduce the Percentage
owned by the Advanta Partners below one percent in the
aggregate;"
(iv) Section 5.7.2 is hereby deleted in its entirety and the
following new Section 5.7.2 is substituted in lieu thereof:
"5.7.2 reducing the amount of indebtedness of the Company
which can be allocated to any Advanta Partner below the amount
of such Advanta Partner's Deficit Balance Amount (as defined
below). For purposes of this Agreement, the term "Deficit
Balance Amount" means an amount, to the extent such amount is
negative, equal to the adjusted income tax basis of an Advanta
Partner's Interest computed without taking into account the
increase in such
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Advanta Partner's adjusted income tax basis attributable to
such Advanta Partner's share of Company liabilities;"
(v) Section 5.7.3 is hereby amended by deleting the phrase "are in
the ordinary course of the Company's business and" where it appears in
said Section 5.7.3.
(vi) Section 5.7.4 is hereby deleted in its entirety.
(vii) Section 5.7.6 is hereby deleted in its entirety and the
following new Section 5.7.6 is substituted in lieu thereof:
"5.7.6 for eleven years after the Closing Date, making any
distribution of Company property (other than money) to any
Advanta Partner; or"
(viii) The following sentence is added to the end of Section 5.7:
"Notwithstanding any other provision of this Agreement, to the
extent that the Company or any Partner (other than an Advanta
Partner) breaches the provisions of this Section 5.7 (other
than Section 5.7.7), the sole remedy of any Advanta Partner
shall be a claim for indemnification to the extent applicable
pursuant to Section 6.4.2 below."
(ix) Section 6.4.2 is hereby deleted in its entirety and the
following new Section 6.4.2 is substituted in lieu thereof:
"Fleet and the Fleet Partners, BAC and BANA(USA) shall
indemnify, defend and hold harmless each of the Company,
Advanta and Advanta's Affiliates from and against any and all
Damages for Indemnified Taxes (as defined below) owed or
incurred by any such Advanta Partner as the result of Fleet,
Fleet's Affiliates, the LLC, the Company, BAC, BANA(USA) or
any Partner (other than an Advanta Partner) taking any action
in violation of Section 5.7 or the last sentence of Section
9.5.3 of this Agreement; provided, however, that the
indemnification provided for in this Section 6.4.2 shall not
include an indemnification for Damages for Indemnified Taxes
relating to the Book/Tax Differential. The amount of the
Indemnified Taxes for purposes of this Section 6.4.2 shall be
computed in the manner set forth in Section 7.2.6, to the
extent that such section specifies the procedure for
identifying the person that computes the amount of Indemnified
Taxes. For purposes of this Section 6.4.2, the term
"INDEMNIFIED TAXES" shall mean Taxes owed or incurred due to
(A) the recognition of gain or income pursuant to Section
704(c) of the Code for up to the $540,909,000 amount of the
built-in gain of the Restricted Sale Assets (the "BUILT-IN
GAIN AMOUNT") upon any sale, transfer or other disposition of
any such Restricted Sale
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Assets or (B) the recognition of gain or income as the result
of a breach of Section 5.7.2. The Built-in Gain Amount and the
Deficit Balance Amount shall be reduced by the amount of gain
recognition for which indemnification payments, if any, are
payable to Advanta from time to time pursuant to this Section
6.4.2."
(x) Section 6.5 is hereby amended by adding new Section 6.5.6,
6.5.7 and 6.5.8, as follows:
"6.5.6 In the event that both the Indemnifying Party and the
Indemnified Partner participate in the defense of a Claim, (i)
the Indemnifying Party shall have the right to assume the
defense of the Claim with authority to negotiate and settle
such Claim with respect to all components of the Claim that
involve an indemnity payment for which the Indemnifying
Partner is responsible or which otherwise would have an
adverse impact on the Indemnifying Party and not the
Indemnified Partner, and (ii) the Indemnified Partner shall
have the right to assume the defense of, with authority to
negotiate and settle, all other components of the Claim. In
the event that the Claim is such that the applicable
components cannot be resolved independently, both the
Indemnifying Party and the Indemnified Partner must consent to
any settlement of the Claim, which consent shall not be
unreasonably conditioned, withheld or delayed.
6.5.7 Upon completion of the indemnification procedure set
forth in Sections 6.5.1 through 6.5.6 with respect to a Claim
arising under Section 6.4.2, Advanta shall calculate the
amount of Damages for Indemnified Taxes as soon as possible
after: (i) having received notice of any circumstance giving
rise to a Claim for Damages for Indemnified Taxes, (ii) the
conclusion of a tax audit or other similar examination in
which a taxing authority proposes an adjustment that would
give use to a Claim for Damages for Indemnified Taxes, or
(iii) the occurrence or the receipt of knowledge of the
occurrence of any other circumstances giving rise to a Claim
for Damages for Indemnified Taxes, and shall deliver a copy of
such calculation to BAC in accordance with Section 10.7
hereof. The calculation shall contain the following:
(a) a detailed calculation of the amount of Damages
for Indemnified Taxes prepared by Advanta and certified by the
officer of Advanta responsible for signing Advanta's corporate
federal income tax return and by Advanta's federal income tax
return preparer;
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(b) the amount of Damages for Indemnified Taxes shall
be calculated by determining, with respect to the taxable
period to which such Claim relates, the additional Taxes
required to be paid as a result of the events or adjustments
giving rise to the Claim by (x) calculating the amount of
Taxes required to be paid for such period and subtracting
therefrom (y) the amount of Taxes that would have been
required to be paid had there been no adjustment to taxable
income that gave rise to the Claim for Damages for Indemnified
Taxes (regardless of the taxable period in which any taxable
income or gain is required to be recognized).
(c) A calculation of the amount of Damages for
Indemnified Taxes "grossed-up" in accordance with Section
6.4.3.
(d) The latest date by which Advanta is required to
make a payment of Taxes in order to avoid any additional
penalty, which date shall be no less than thirty (30) calendar
days from the date such calculation is delivered to BAC and
the account to which the payment should be wired.
6.5.8. The payment of any Claim for Damages for Indemnified
Taxes shall be made to Advanta not later than three (3)
business days prior to the date specified in Section 6.5.7(d)
by immediately available federal funds wired to an account
designated by Advanta; provided, however, that the amount of
Damages for Indemnified Taxes shall be adjusted to account for
any delay in the receipt of the payment beyond the date
specified in Section 6.5.7(d) hereof. In the event that
Advanta receives a refund or credit with respect to the
Indemnified Taxes for which an indemnification payment has
been made, Advanta shall remit to the party that made the
indemnification payment an amount equal to the applicable
portion of such indemnification payment (including the amount
of the "gross-up") calculated with respect to such refund or
credit."
(xi) Section 6 is hereby amended by adding the following new
Section 6.6:
"6.6. Provided that draft copies of the Partnership's tax
returns and other accompanying statements to be filed by the
Company with the Internal Revenue Service are provided to the
Advanta Partners as required by Section 9.5.3 of the Agreement
and that the tax returns, as filed, are identical in all
material respects with the draft copies distributed to the
Advanta Partners, no Advanta Partner shall take a return
filing position inconsistent with the K-1 such Advanta Partner
receives from Services, unless such Advanta Partner receives
an opinion of tax counsel regularly employed by such Advanta
Partner stating that the filing of such Advanta Partner's
return consistent with such K-1 would, more likely than
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not, subject the Advanta Partner to an accuracy-related
penalty under Internal Revenue Code Sections 6662 or 6663, or
other state tax penalties."
(xii) The last sentence of Section 7.2.1 is hereby amended by
deleting the word "sixth" where it appears in said sentence and by
substituting in lieu thereof the word "tenth."
(xiii) Clause (iii) of the first sentence of Section 7.2.2 is hereby
amended by deleting the word "seven" where it appears in the proviso to
said clause (iii) and by substituting in lieu thereof the word "eleven."
(xiv) Clause (ii) of the second sentence of Section 7.2.2 is hereby
amended by deleting the phrase "clauses (a) and (b)" where it appears in
said clause (ii) and by substituting in lieu thereof the phrase "clause
(b)."
(xv) The first sentence of Section 7.2.7 is hereby amended by
deleting the phrase "clauses (a) and (b)" where it appears in said
sentence and by substituting in lieu thereof the phrase "clause (b)."
Except to the extent the Limited Partnership Agreement is expressly or by
necessary implication amended hereby, the Limited Partnership Agreement
shall remain in full force and effect.
(c) The Parties agree to review and amend the Contribution Agreement
with changes consistent with the amendments to the Limited Partnership Agreement
in this Agreement.
3. LITIGATION SETTLEMENT AND RELEASES.
(a) General.
(i) Except as expressly set forth in the last sentence of this
Paragraph 3(a)(i) and Paragraph 3(b) below, each of the Advanta Partners,
on behalf of itself, and its successors and assigns, does hereby remise,
release and forever discharge BAC, Services and FCCH, and their respective
Affiliates, officers, directors, employees, agents, stockholders,
successors and assigns (collectively, the "BAC RELEASED PARTIES"), of and
from any and all acts, actions, causes of action, suits, debts, sums of
money, claims, demands, liabilities, obligations, charges and expenses,
whether the same be liquidated, unliquidated, contingent or otherwise, of
whatever nature in law, equity or otherwise which each such Advanta
Partner ever had, now has, or hereafter can, shall or may have against the
BAC Released Parties or any of them for, upon or by reason of or related
to or in any manner connected with or arising out of Services, including
without limitation its formation, operation and contributions of assets
and liabilities thereto from the beginning of time through and including
the Effective Date. This is a full and final release of all claims, known
or unknown, fixed or contingent, relating to the above matters. Subject to
the proviso at the end of this sentence, this release does not apply to,
and each of the Advanta Partners reserves its rights to assert, any claim
relating to the liabilities and obligations assumed by Services under the
provisions of the Contribution Agreement and
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any claim for Damages for Indemnified Taxes pursuant to Section 6.4.2 of
the Limited Partnership Agreement; provided, however, each Advanta Partner
jointly and severally represents and warrants that, subject to BAC's
representation and warranty set forth in Paragraph 3(a)(ii) below and
except for a possible claim relating to Services' compliance with the
provisions of Section 9.5.3 of the Limited Partnership Agreement, as of
the Effective Date it has no knowledge of any such claim that it has or
may have relating to the liabilities or obligations assumed by Services
under the provisions of the Contribution Agreement or for Damages for
Indemnified Taxes.
(ii) Except as expressly set forth in Paragraph 3(b) below, each of
BAC, Services and FCCH (the "BAC RELEASING PARTIES"), on behalf of itself,
and its successors and assigns, does hereby remise, release and forever
discharge Advanta and their respective Affiliates, officers, directors,
employees, agents, stockholders, partners, members, successors and assigns
(collectively, the "ADVANTA RELEASED PARTIES"), of and from any and all
acts, actions, causes of action, suits, debts, sums of money, claims,
demands, liabilities, obligations, charges and expenses, whether the same
be liquidated, unliquidated, contingent or otherwise, of whatever nature
in law, equity or otherwise which each of the BAC Releasing Parties ever
had, now has, or hereafter can, shall or may have against the Advanta
Released Parties or any of them for, upon or by reason of or related to or
in any manner connected with or arising out of Services, including without
limitation its formation, operation and contributions of assets and
liabilities thereto from the beginning of time through and including the
Effective Date. This is a full and final release of all claims, known or
unknown, fixed or contingent, relating to the above matters. BAC
represents and warrants that, since April 1, 2004, neither it nor any of
its Affiliates has taken any action in violation of Section 5.7 of the
Limited Partnership Agreement.
(b) Settlement of All Existing Litigation. Upon the receipt of the IRS
Approval (as defined below) with respect to the Tax Settlement (as defined
below), BAC, Services and Advanta agree, without delay, (i) to settle and enter
into full and complete releases with respect to all existing litigation between
them (and Fleet and any Affiliates of Fleet) (including the Delaware and Rhode
Island lawsuits, captioned Advanta Corp., et al. v. FleetBoston Financial
Corporation, et al., No. 80,2004 (Del) and FleetBoston Financial Corporation,
et. al., v. Advanta Corp., et al., No. PC03-0220 (R.I.), and the tax protest
with the Internal Revenue Service) (collectively, the "LITIGATION DISPUTES") and
(ii) to file dismissals with prejudice in all cases with respect thereto in
consideration of the following:
(i) BAC shall pay AC the sum of $63,802,657.27, which sum
represents a return of the payments that Advanta made to Fleet in February
and March, 2004, representing the judgment Fleet obtained in the Delaware
state court action between Advanta and Fleet. BAC shall make this payment
to AC upon the receipt of the IRS Approval and Advanta's compliance
(without regard to the compliance of BAC, Fleet or their Affiliates) with
the foregoing provision of Paragraph 3(b) with respect to releases and
dismissals with prejudice of all Litigation Disputes.
(ii) With regard to the tax dispute relating to the proper
allocation of loss deduction for the chargeoff of approximately $508
million in receivables, $120 million of
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Services' 1998 chargeoffs shall be treated as a built-in loss under
Section 704(c) of the Code, allocable 100% to Advanta for Services' 1998
taxable year, and the remaining approximately $388 million of chargeoffs
shall not be treated as a built-in loss under Section 704(c) of the Code
and shall be allocated 98.7% to FCCH and 1.3% to Advanta (and among
Advanta in accordance with their relative Percentages).
(iii) With regard to the tax dispute relating to the proper
allocation of gain in the amount of $47,430,210 from the disposition of
the interest in RBS Advanta, none of such gain shall be classified as Code
Section 704(c) built-in gain allocable to Advanta and 100% of such taxable
gain shall be treated as an item of taxable income of Services for its
1998 taxable year and allocated 98.7% to FCCH and 1.3% to Advanta (and
among Advanta in accordance with their relative Percentages).
(iv) The Parties shall cooperate with each other as reasonably
necessary in coordinating the resolution of the above tax disputes with
the Internal Revenue Service ("IRS") pursuant to the terms set forth in
Subparagraphs 3(b)(ii)-(iii) above (the "TAX SETTLEMENT"). The Parties
shall not take any position inconsistent with the terms of the Tax
Settlement or the terms of this Agreement before the IRS. Furthermore,
immediately following the Effective Date, Services and Advanta shall
notify the IRS Appellate Conferee of the Tax Settlement and shall request
the expedited preparation of IRS Form 870-P(AD), Settlement Agreement for
Partnership Adjustments, consistent with the Tax Settlement. Services,
Advanta and BAC shall be given draft copies of any of such Party's
submissions to the IRS in respect of the Tax Settlement and no such
submission shall be delivered until each of such Parties has had the
opportunity to comment on such submission. If the IRS agrees and approves
the Tax Settlement on the terms set forth in this Paragraph 3(b), then
such agreement and approval shall be referred to as the "IRS APPROVAL."
For purposes of this Agreement, an IRS Form 870-P(AD) (or other similar
form) which incorporates the terms of the Tax Settlement, signed by or on
behalf of the Commissioner, shall constitute an IRS Approval. If the IRS
refuses to agree to the Tax Settlement and to issue the IRS Approval,
then, subject to a Party's compliance with the above provisions of this
Subparagraph 3(b)(iv), such Party shall have the right to take any
position in court or before any taxing authority with respect to the tax
disputes and shall no longer be obligated to the terms of the Tax
Settlement.
Resolution of the Litigation Disputes on the terms set forth in this Paragraph
3(b) shall not constitute a condition or be subject to any other provisions of
this Agreement, which other provisions shall be valid and binding whether or not
the Litigation Disputes are resolved on the terms set forth in this Paragraph
3(b), except that if the IRS refuses to agree to the Tax Settlement on the terms
set forth in this Paragraph 3(b) and to issue the IRS Approval, then BAC shall
have no obligation to make the payment described in Subparagraph 3(b)(i) above,
the mutual releases set forth in Paragraph 3(a) above shall not be valid or
binding and the Parties shall not be obligated to settle, dismiss or otherwise
release the Litigation Disputes.
4. REGULATORY DISCLOSURE. Advanta and BAC each acknowledges and agrees to
full, complete and open disclosure of the matters set forth in this Agreement to
all appropriate regulatory agencies, whether or not such disclosures are made by
BAC, Services or AC or their respective affiliates.
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5. CONDITION TO EFFECTIVENESS OF AGREEMENT. Advanta shall have the right to
terminate this Agreement and declare it void ab initio by delivering written
notice of termination to BAC no later than ten (10) calendar days after the
Effective Date if Advanta has not received written confirmation from KPMG of
AC's conclusion that the Agreement and the transactions contemplated herein will
not require Advanta to make any provision for income tax expense and an
associated increase in current or deferred tax reserves or a reduction in a
deferred tax asset. If Advanta does not terminate this Agreement pursuant to the
immediate preceding sentence, then this Agreement shall be valid and binding on
the Parties as of the Effective Date.
6. MISCELLANEOUS TERMS AND CONDITIONS.
(a) Dispute. If a dispute arises between the Parties in connection with
this Agreement or any document or instrument delivered in connection herewith
(except any document or instrument that contains separate dispute resolution
provisions), including without limitation alleged breach of any representation,
warranty or covenant herein or therein, or a disagreement regarding the
interpretation of any provision hereof or thereof (a "DISPUTE"), the Parties
shall use the procedures set forth herein in good faith prior to any Party
pursuing other available judicial or nonjudicial remedies. A meeting shall be
held among the Parties within ten (10) business days after any Party gives
written notice of a Dispute to another Party. The meeting shall be attended by a
representative of each Party having decision making authority regarding the
Dispute (subject to Board of Directors, or equivalent approval, if required), to
attempt in good faith to negotiate a resolution of the Dispute.
(b) Confidentiality. Except as set forth in this Agreement or as the
Parties otherwise agree or as otherwise required by law or any national
securities exchange, each of the Parties agrees to maintain this Agreement and
any document or instrument delivered in connection herewith and the terms and
conditions hereof and thereof as confidential for the term of the Limited
Partnership Agreement and for a period of one (1) year thereafter.
Notwithstanding anything herein to the contrary, any Party (and any of its
employees, representatives and other agents) may disclose to any and all
persons, without limitation of any kind, the tax treatment or tax structure of
this transaction. Furthermore, the Parties of this transaction may disclose, as
required by federal or state laws or the requirements or requests of any
regulatory agency having jurisdiction over one or more of the Parties, any
information as required to comply with such federal or state laws.
(c) Governing Law. This Agreement shall be governed by the laws of the
State of Rhode Island without regard to principles of conflicts of laws
applicable therein.
(d) Entire Agreement. This Agreement, the Limited Partnership Agreement
and the Contribution Agreement and any other document or instrument executed in
connection herewith, constitutes the entire agreement between the Parties with
respect to the subject matter hereof, and supersedes all prior agreements and
understandings between the Parties with respect to such matters.
(e) Notices. Any notice, demand, election or communication required,
permitted or desired to be given hereunder shall be sent by prepaid registered
or certified mail, return receipt requested, or by a nationally recognized
commercial courier service (such as FedEx or UPS), or
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by electronic facsimile (but in the latter instance, also by U.S. Postal Service
or by a nationally recognized commercial courier service). Notices, demands,
elections or communications shall be deemed received on the first to occur of
the following:
(i) when personally delivered;
(ii) when actually delivered by a nationally recognized commercial
courier; or
(iii) two (2) business days following the deposit thereof with the
U.S. Postal Service.
Notices, demands, elections or communications sent to (A) BAC, Services or FCCH
shall be sent to Xxxxxxx Mayopolis, General Counsel, Bank of America Corp., Bank
of America Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, and (B) any other Party shall
be sent to the address given for such Party on Schedule A of the Limited
Partnership Agreement. Any Party may change its address to which such notices
shall be given by written notices to the other Parties pursuant to the
provisions of this Paragraph 6(e).
(f) Successors and Assigns. All of the terms, conditions and covenants
of this Agreement shall be binding upon and inure to the benefit of the Parties
and their respective successors and permitted assigns.
(g) Expenses. Except as set forth in this Agreement or as otherwise
agreed to in writing by the Parties, each of the Parties will bear its own costs
and expenses, if any, incurred in connection with the preparation and execution
of this Agreement and any documents relating thereto.
(h) Further Assurances. Each Party shall execute and deliver such
further agreements, documents and instruments and do such further acts and
things as may be reasonably required to carry out the intent and purpose of this
Agreement
(i) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(j) Amendments. This Agreement shall not be amended or modified except
by an instrument in writing signed by Services, AC and BAC.
(k) Headings. All headings and captions herein are inserted for
convenience and identification only and are in no way intended to describe,
interpret, define or limit the scope or intent of this Agreement or any
provision hereof.
(1) Waiver. No waiver of a breach or default hereunder shall be
considered valid unless in writing and signed by the Party giving such waiver,
and no such waiver shall be deemed a waiver of any subsequent breach of default
of the same or similar nature. No failure or delay by any Party in exercising
any right, power or privilege hereunder (other than the failure or delay beyond
the period of time as specified herein) shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the
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exercise of any other right, power or privilege. Except as otherwise provided in
this Agreement, the rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
(m) Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in any number of counterparts, and by the
different Parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, and such counterparts taken
together shall constitute one and the same Agreement.
(n) Severability. Should any part or provision of this Agreement be held
unenforceable or in conflict with the applicable laws or regulations of any
jurisdiction, the invalid or unenforceable part or provision shall be replaced
with the revision that accomplishes, to the extent possible, the original
business purpose of such part or provision in a valid and enforceable manner,
and the balance of this Agreement shall remain in full force and effect and be
binding upon the Parties hereto.
(o) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDINGS ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the Parties have caused this AGREEMENT RELATING TO
FLEET CREDIT CARD SERVICES, L.P. to be executed by their duly authorized
representatives as of the Effective Date.
ADVANTA CORP.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
ADVANTA NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman
ADVANTA SERVICE CORP.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman
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FLEET CREDIT CARD HOLDINGS, INC.
By: /s/ G. Xxxxxxx Xxxxxxxx
--------------------------------
Name: G. Xxxxxxx Xxxxxxxx
Title: Executive Vice President
FLEET CREDIT CARD SERVICES, L.P.
By: /s/ G. Xxxxxxx Xxxxxxxx
--------------------------------
Name: G. Xxxxxxx Xxxxxxxx
Title: Executive Vice President
BANK OF AMERICA CORP.
By: /s/ G. Xxxxxxx Xxxxxxxx
--------------------------------
Name: G. Xxxxxxx Xxxxxxxx
Title: Executive Vice President
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