AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT between SYNCHRONY BANK, Seller, and SYNCHRONY CARD FUNDING, LLC Buyer Dated as of May 1, 2018

 

Exhibit 4.9

 

AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT

 

between

 

SYNCHRONY BANK,

 

Seller,

 

and

 

SYNCHRONY CARD FUNDING, LLC

 

Buyer

 

Dated as of May 1, 2018

 

 

 

 

ARTICLE I DEFINITIONS 1
     
Section 1.1 Definitions 1
     
ARTICLE II SALES and contributions 6
     
Section 2.1 Sales and Contributions 6
     
Section 2.2 Acceptance by Buyer 7
     
Section 2.3 Grant of Security Interest 8
     
Section 2.4 Purchase Price 8
     
Section 2.5 Adjustments 8
     
Section 2.6 Addition of Accounts 9
     
Section 2.7 Removal of Accounts 9
     
Section 2.8 Additional Sellers 10
     
Section 2.9 Additional Originators 10
     
ARTICLE III CONDITIONS PRECEDENT 11
     
Section 3.1 Conditions to all Transfers 11
     
ARTICLE IV OTHER MATTERS RELATING TO SELLER 11
     
Section 4.1 Merger or Consolidation of, or Assumption of the Obligations of, Seller, etc 11
     
ARTICLE V insolvency EVENTS 12
     
Section 5.1 Rights upon the Occurrence of an Insolvency Event 12
     
ARTICLE VI REPRESENTATIONS, WARRANTIES AND COVENANTS 13
     
Section 6.1 Representations and Warranties of Seller 13
     
Section 6.2 Affirmative Covenants of Seller 16
     
Section 6.3 Negative Covenants of Seller 17
     
Section 6.4 Compliance with the FDIC Rule 18
     
ARTICLE VII MISCELLANEOUS 19
     
Section 7.1 Notices 19
     
Section 7.2 No Waiver; Remedies 20
     
Section 7.3 Successors and Assigns 20
     
Section 7.4 Termination 20
     
Section 7.5 Survival 20
     
Section 7.6 Complete Agreement; Modification of Agreement 21
     
Section 7.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL 21

 

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Section 7.8 Counterparts 22
     
Section 7.9 Severability 22
     
Section 7.10 Section Titles 22
     
Section 7.11 No Setoff 22
     
Section 7.12 Confidentiality 22
     
Section 7.13 Further Assurances 23
     
Section 7.14 Relationship of Parties 23
     
Section 7.15 No Indirect or Consequential Damages 23
     
Section 7.16 Dispute Resolution 24
     
Section 7.17 Relationship of Parties 26
     
Section 7.18 No Petition 26
     
Section 7.19 Effectiveness 26
     
SCHEDULES    
     
SCHEDULE 1 List of Accounts  
     
SCHEDULE 6.1(a) Seller’s UCC Information  
     
EXHIBITS    
     
EXHIBIT A Form of Assignment of Transferred Receivables in Additional Accounts  
     
EXHIBIT B Form of Reassignment of Transferred Receivables in Removed Accounts  

 

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AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT, dated as of May 1, 2018 (this “Agreement”), between SYNCHRONY BANK, a federal savings association organized under the laws of the United States, (the “Bank”) and SYNCHRONY CARD FUNDING, LLC, a limited liability company organized under the laws of the State of Delaware, as Buyer (“Buyer”).

 

WHEREAS, the Bank, as Seller, and Buyer are parties to that certain Receivables Sale Agreement, dated as of November 30, 2017 (as amended prior to the date hereof, the “Original Receivables Sale Agreement”); and

 

WHEREAS, the Bank, as Seller, and Buyer desire to amend and restate the Original Receivables Sale Agreement in the form of this Agreement.

 

NOW, THEREFORE, in consideration of the mutual agreements hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

DEFINITIONS

 

Section 1.1           Definitions.

 

(a)          All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.

 

(b)          Initially capitalized terms used but not otherwise defined herein have the respective meanings assigned thereto in (or by reference in) the Amended and Restated Master Indenture, dated as of May 1, 2018 (the “Indenture”), between Synchrony Card Issuance Trust and The Bank of New York Mellon, as Indenture Trustee. This Agreement shall be interpreted in accordance with the conventions set forth in subsections 1.01(a) through (g) of the Indenture. Whenever used in this Agreement, the following words and phrases shall have the following meanings, and the definitions of such terms and phrases and any definitions incorporated herein are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and the neuter genders of such terms:

 

“Account” means an “Account” (as defined in the Indenture); it being understood that any credit accounts all of the Receivables in which are either reassigned or assigned to Transferor or its designee in accordance with the Transfer Agreement shall remain “Accounts” for purposes of this Agreement unless all of the Receivables in such Accounts are also reassigned or assigned to the related Seller or its designee in accordance with this Agreement.

 

“Addition Cut-Off Date” means, as to any Additional Account, the date specified in the related Assignment.

 

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“Addition Date” means, as to any Additional Account, the date as of which Receivables outstanding in such Additional Account are first sold or contributed to Buyer, as specified in the related Assignment.

 

“Addition Representation Date” means, as to any Additional Account, the date specified in the related Assignment; provided, that such Addition Representation Date shall not be more than 7 Business Days prior to the Addition Cut-Off Date specified in the related Assignment; provided, further, that the Addition Representation Date with respect to any Assignment executed prior to the Amendment and Restatement Effective Date shall mean the Addition Cut-Off Date specified in the related Assignment.

 

“Additional Accounts” is defined in Section 2.6(a).

 

“Amendment and Restatement Effective Date” means May 1, 2018.

 

“Agreement” is defined in the preamble.

 

“Agreement Termination Date” is defined in Section 7.4.

 

“Assignment” is defined in Section 2.6(b).

 

“Buyer” is defined in the preamble.

 

“Conveyance Date” means a date on which Buyer acquires Transferred Receivables from Seller pursuant to Section 2.1 or any Assignment.

 

“Debtor Relief Laws” means Title 11 of the United States Code, the Federal Deposit Insurance Act and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, readjustment of debt, marshalling of assets or similar debtor relief laws of the United States, any state or any foreign country from time to time in effect, affecting the rights of creditors generally.

 

“Eligible Account” means a credit card account that (x) in the case of any Initial Account, satisfied each of the requirements below as of the Initial Cut-Off Date and (y) in the case of any Additional Account, satisfies each of the requirements below as of the applicable Addition Representation Date:

 

(a)          the account is established or acquired by an Originator;

 

(b)          the Originator’s electronic records related to the account do not indicate that the account has been cancelled;

 

(c)          the Originator’s electronic records related to the account indicate that the account is payable in United States dollars;

 

(d)          the Originator’s electronic records related to the account do not indicate that the account is a closed-end account;

 

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(e)          except as provided below, the account has not been identified on the Originator’s electronic records related to the account as an account (i) the credit cards for which have been reported to Originator as lost or stolen or (ii) the Obligor of which is the subject of a bankruptcy proceeding;

 

(f)          none of the Receivables in the account have been identified by the electronic records of Originator as having been sold, pledged, assigned or otherwise conveyed to any Person other than Buyer, Issuer or Indenture Trustee, unless any such pledge or assignment is released on or before the Initial Transfer Date or the Addition Date, as applicable;

 

(g)          except as provided below, none of the Receivables in the account are Charged-Off Receivables or have been identified by the electronic records of Originator as having been incurred as a result of fraudulent use;

 

(h)          according to the electronic records of Originator, the account has an Obligor who has provided as his or her most recent billing address, an address located in the United States (or a territory thereof) or a United States military address; and

 

(i)          none of the Receivables in the account is listed on Originator’s electronic records as an obligation of the United States, any state or agency or instrumentality or political subdivision thereof.

 

Notwithstanding the foregoing, Eligible Accounts may include accounts, the receivables in which have been written off as uncollectible, or as to which Originator believes the related Obligor is bankrupt and certain receivables that have been identified by the Obligor as having been incurred as a result of fraudulent use of credit cards or any credit cards have been reported to Originator as lost or stolen, so long as (1) the balance of all receivables included in such accounts is reflected on the books and records of Originator (and is treated for purposes of the Related Documents) as “zero” and (2) charging privileges with respect to all such accounts have been canceled and are not reinstated.

 

“Eligible Receivable” means a Receivable:

 

(a)          that has arisen under an Eligible Account;

 

(b)          that complied at the time it was originated with all Requirements of Law applicable to Originator the failure to comply with which would have a material adverse effect on Buyer or any of its creditors;

 

(c)          the terms of the Receivable do not limit the right of the owner of the Receivable to sell and assign the Receivable;

 

(d)          that at the time of transfer to Buyer is the legal and binding payment obligation of the Obligor thereof, legally enforceable in all material respects against such Obligor in accordance with its terms, except as enforceability may be limited by applicable Debtor Relief Laws, and by general principles of equity (whether considered in a suit at law or in equity) and the Servicemembers Civil Relief Act;

 

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(e)          that constitutes an “account” or “general intangible” within the meaning of UCC Section 9-102; and

 

(f)          that, at the time of its transfer to Buyer, the Originator’s electronic records do not reflect any right of rescission, setoff, counterclaim or any other defense of the Obligor (including the defense of usury), other than defenses arising out of Debtor Relief Laws and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or equity) or as to which Seller makes an adjustment pursuant to Section 2.5.

 

“Flagged Account” is defined in Section 2.1(b).

 

“Inactive Account” is defined in Section 2.7(c).

 

“Ineligible Receivable” is defined in Section 6.1(c).

 

“Initial Cut-Off Date” means, with respect to each Initial Account, the date specified in the related Account Schedule as the cut-off date for such Initial Account.

 

“Interchange Accrual Rate” means, with respect to each credit card program relating to the Accounts and any Monthly Period, the result (expressed as a percentage) of (a) the total amount of Interchange for the second preceding Monthly Period arising from such credit card program divided by (b) the aggregate amount of cardholder charges for goods and services for all credit card accounts in such credit card program during the second preceding Monthly Period.

 

“Interchange Amount” means, for any credit card program relating to the Accounts and each Date of Processing, the amount determined pursuant to Section 2.1(d) or such other amount determined by the Originator, in its sole discretion, to be reasonably representative of the amount of Interchange that is generated by the Receivables arising in the Accounts of such Originator. The Originator may, with notice to Transferor and Servicer, from time to time modify the methodology for determining the Interchange Amount to more closely approximate the actual Interchange relating to the Transferred Receivables. Unless modified in accordance with the preceding sentence, Bank, as Originator, will use the methodology described in Section 2.1(d) to calculate the Interchange Amount.

 

“Intercompany Note” means an intercompany line of credit evidencing borrowings made by Buyer from Seller.

 

“Involuntary Removal” is defined in Section 2.7(b).

 

“Originator” means Seller or any other originator so designated pursuant to Section 2.9.

 

“Purchase Price” is defined in Section 2.4(a).

 

“Reassignment” is defined in Section 2.7(a).

 

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“Removed Accounts” is defined in Section 2.7(a).

 

“Removal Cut-Off Date” means the date as of which any credit card accounts are designated to be removed as Accounts, as specified in the related Reassignment.

 

“Removal Date” is defined in Section 2.7(a).

 

“Requesting Party” means (i) any Person requesting that Seller repurchase a Transferred Receivable as a result of a breach of a representation or warranty of Seller set forth in this Agreement or (ii) any Verified Note Owner.

 

“Seller” means Synchrony Bank or any additional Person designated as a “Seller” in accordance with Section 2.8.

 

“Transferred Assets” is defined in Section 2.1(a).

 

“Transferred Receivable” means any Receivable purchased by Buyer from Seller pursuant to this Agreement or any Assignment, including Principal Receivables and Finance Charge Receivables that exist at the time of purchase of any Principal Receivables in the same Account or that arise in an Account after the date of purchase of Principal Receivables in the Account. However, Receivables that are repurchased by Seller pursuant to this Agreement or purchased by Servicer pursuant to the Servicing Agreement shall cease to be considered “Transferred Receivables” from the date of such purchase.

 

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ARTICLE II

SALES and contributions

 

Section 2.1           Sales and Contributions. (a) By execution of this Agreement, Seller does hereby transfer, assign, set over and otherwise convey to Buyer, without recourse except as provided herein, all its right, title and interest in, to and under: (i) the Receivables existing at the opening of business on the Initial Cut-Off Date, and thereafter created from time to time in the Initial Accounts until the Agreement Termination Date, and the Receivables existing on the Addition Cut-Off Date as designated pursuant to the related Assignment, and thereafter created from time to time in each Additional Account until the Agreement Termination Date, together with the Related Security and Collections with respect thereto and related Recoveries, in each case together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto, (ii) without limiting the generality of the foregoing or the following, all of Seller’s rights to receive payments from any Program Partner on account of in-store payments and any other amounts received by such Program Partner in payment of Receivables, (iii) the Interchange Amounts for all credit card programs relating to the Accounts on each Date of Processing and (iv) all proceeds of all of the foregoing (collectively, the “Transferred Assets”). The foregoing does not constitute and is not intended to result in the creation or assumption by Buyer of any obligation of Originator, Seller or any other Person in connection with the Accounts or the Transferred Receivables or under any agreement or instrument relating thereto, including any obligation to Obligors, merchant banks, Program Partners, clearance systems or insurers. The foregoing conveyances shall be effective (x) on the Initial Transfer Date, with respect to all Transferred Assets arising in the Initial Accounts and existing on the Initial Cut-Off Date or arising in the Initial Accounts on or prior to the Initial Transfer Date, (y) on the applicable Addition Date, with respect to Transferred Assets arising in Additional Accounts and existing on the applicable Addition Cut-Off Date or arising in the Additional Accounts on or prior to the applicable Addition Date or (z) with respect to any other Transferred Assets, instantaneously upon the creation of each Transferred Asset.

 

(b)          Seller agrees, at its own expense, (i) on or prior to (x) the Initial Transfer Date, in the case of the 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, to indicate, or cause to be indicated, in the appropriate electronic records that Receivables created (or reassigned, in the case of Removed Accounts) in connection with the Accounts have been conveyed to Buyer pursuant to this Agreement (or conveyed to Seller or its designee in accordance with Section 2.7, in the case of Removed Accounts) by including, or causing to be included, in such electronic records a code so identifying each such Account (or, in the case of Removed Accounts, deleting, or causing to be deleted, such code thereafter) and (ii) on or prior to the date referred to in clauses (i)(x), (y) or (z), as applicable, to deliver to Buyer an Account Schedule. The initial such Account Schedule, as supplemented from time to time to reflect Additional Accounts and Removed Accounts, shall be marked as Schedule 1 to this Agreement and is hereby incorporated into and made a part of this Agreement. Once the code referenced in clause (i) of this paragraph has been included with respect to any Account, Seller further agrees not to permit such code to be altered during the remaining term of this Agreement unless and until (x) such Account becomes a Removed Account, or (y) Seller shall have delivered to Buyer prior written notice of its intention to do so and has taken such action as is necessary or advisable to cause the interest of Buyer in the Transferred Receivables to continue to be perfected with the priority required by this Agreement. At any time that the code referenced in clause (i) is included with respect to any account, such account shall be a “Flagged Account.”

 

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(c)          On or prior to the Initial Transfer Date, Seller agrees to record and file, at its own expense, financing statements (and continuation statements when applicable) with respect to the Transferred Assets conveyed by Seller existing on the Initial Cut-Off Date and thereafter created meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect, and maintain the perfection of, the transfer and assignment of its interest in such Transferred Assets to Buyer, and to deliver a file stamped copy of each such financing statement or other evidence of such filing (which may, for purposes of this Section 2.1 consist of telephone confirmation of such filing promptly followed by delivery to Buyer of a file-stamped copy) as soon as practicable after the Initial Transfer Date, and (if any additional filing is so necessary) as soon as practicable after the applicable Addition Date, in the case of Transferred Assets arising in Additional Accounts. Buyer shall be under no obligation whatsoever to file such financing or continuation statements or to make any other filing under the UCC in connection with such transfer and assignment.

 

(d)          Unless the methodology for calculating the Interchange Amount is otherwise modified by the Originator, in accordance with the definition of Interchange Amount, the Originator will use the methodology described in this Section 2.1(d) to calculate the Interchange Amount for the Accounts in each credit card program for each Date of Processing. Prior to the first day of each Monthly Period, the Originator will calculate the Interchange Accrual Rate for each credit card program relating to the Accounts for such Monthly Period. The Interchange Amount for the Accounts in each credit card program for any Date of Processing will be equal to the product of (i) the Principal Receivables originated in the Accounts in such credit card program on such Date of Processing, multiplied by (ii) the Interchange Accrual Rate for such credit card program and the related Monthly Period. Interchange Amounts shall be treated as Finance Charge Collections and deposited to the Collection Account in accordance with the Indenture as if such Interchange Amounts were Collections of Finance Charge Receivables.

 

Section 2.2           Acceptance by Buyer.

 

(a)          Buyer hereby acknowledges its acceptance of all right, title and interest to the property, now existing and hereafter created, conveyed to Buyer pursuant to Section 2.1. Buyer shall maintain a copy of Schedule 1, as delivered to it from time to time.

 

(b)          Buyer hereby agrees not to disclose to any Person any account numbers or other information contained in the Account Schedule, except (i) to Servicer, any Sub-Servicer or as required by a Requirement of Law applicable to Buyer, (ii) in connection with the performance of Buyer’s duties hereunder, (iii) to Indenture Trustee in connection with Indenture Trustee’s duties, (iv) to bona fide creditors or potential creditors of Servicer or Seller for the limited purpose of enabling any such creditor to identify Transferred Receivables or Accounts subject to this Agreement or (v) to the Issuer. Buyer agrees to take such measures as shall be reasonably requested by Seller to protect and maintain the security and confidentiality of such information and, in connection therewith, shall allow Seller or its duly authorized representatives to inspect Buyer’s security and confidentiality arrangements from time to time during normal business hours upon prior written notice. Buyer shall promptly notify Seller of any request received by Buyer to disclose information of the type described in this Section 2.2(b), which notice shall in any event be provided no later than five (5) Business Days prior to disclosure of any such information unless Buyer is compelled pursuant to a Requirement of Law to disclose such information prior to the date that is five (5) Business Days after the giving of such notice.

 

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Section 2.3           Grant of Security Interest. The parties hereto intend that each transfer of the Transferred Assets shall constitute a sale or contribution by Seller to Buyer and not a loan by Buyer to Seller secured by the Transferred Assets. Notwithstanding anything to the contrary set forth in this Section 2.3, if a court of competent jurisdiction determines that any transaction provided for herein constitutes a loan and not a sale or contribution, then the parties hereto intend that this Agreement shall, and hereby does, constitute a security agreement under applicable law and that Seller shall be deemed to have granted, and Seller hereby grants, to Buyer a first priority lien and security interest in and to all of Seller’s right, title and interest in, to and under the Transferred Assets, subject only to Permitted Encumbrances.

 

Section 2.4           Purchase Price. (a) The purchase price for the Transferred Receivables and the other Transferred Assets related thereto shall equal the fair market value of such Transferred Receivables and Transferred Assets as agreed upon by Buyer and Seller prior to such sale (such amount for any Transferred Assets, the “Purchase Price”).

 

(b)          The Purchase Price for any Transferred Assets sold by Seller shall be payable in full in cash on each Conveyance Date or less frequently if so agreed between Buyer and Seller. Seller may in its discretion contribute Receivables on any Business Day and the Purchase Price for any Transferred Assets contributed by Seller shall be deemed to be a capital contribution from Seller to Buyer. On each such Conveyance Date or other date set by the parties for payment, Buyer shall, upon satisfaction of the applicable conditions set forth in Article III, make available to Seller the Purchase Price for the applicable Transferred Assets in same day funds to the extent the Purchase Price is not contributed pursuant to the immediately preceding sentence. To the extent the Purchase Price of Receivables on any Conveyance Date is not contributed to Buyer’s capital, then in the Buyer’s sole discretion, all or a portion of the Purchase Price for Receivables on such Conveyance Date may be deemed to be a borrowing by Buyer under the Intercompany Note; provided that no borrowing may be made under the Intercompany Note if, after giving effect to such borrowing, the likelihood of repayment of the Intercompany Note would be considered to be lower than investment grade as reasonably determined by the Buyer.

 

Section 2.5           Adjustments. If on any day the outstanding amount of any Principal Receivable is reduced because of a rebate, refund, unauthorized charge or billing error to an accountholder, or because such Principal Receivable was created in respect of merchandise which was refused or returned by an accountholder, or if the outstanding amount of any Principal Receivable is otherwise reduced other than on account of Collections thereof or such amount being charged-off as uncollectible, then, Seller shall compensate Buyer for such reduction in the outstanding amount of such Principal Receivable as provided below. Any adjustment required pursuant to the preceding sentence shall be made not later than the second Business Day after the Date of Processing for the event giving rise to such adjustment or less frequently if so agreed between Buyer and Seller. The amount of each such reduction shall be deducted from the amount of the Purchase Price payable by Buyer to Seller on the Conveyance Date that coincides with or next follows the date of the adjustment, and Seller shall pay Buyer on that Conveyance Date any excess of the aggregate amount of such reductions over the aggregate Purchase Price otherwise payable on that Conveyance Date. Notwithstanding the foregoing, on any Conveyance Date the aggregate amount of such reductions shall be paid gross by Seller to Buyer, without netting against the Purchase Price, to the extent that Buyer informs Seller that Buyer requires funds to make payments on account of such reductions under any of the Related Documents.

 

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Section 2.6           Addition of Accounts.

 

(a)          Additional Accounts. From time to time, Seller may (and, if requested by Buyer, shall) designate additional Eligible Accounts (“Additional Accounts”) to be included as Accounts. Seller’s failure to designate Additional Accounts on Buyer’s request will not be deemed a breach of this Agreement if Seller does not have Eligible Accounts reasonably available for this purpose.

 

(b)          Conditions for Additions of Additional Accounts. Any sale or contribution of Receivables from Additional Accounts under subsection 2.6(a) shall occur only upon satisfaction of the following conditions (to the extent provided below):

 

(i)          on or before the Addition Date, Seller shall have delivered to Buyer, a written assignment in substantially the form of Exhibit A (the “Assignment”), and Seller shall indicate in its electronic records that the Receivables created in connection with the Additional Accounts have been transferred to Buyer; and

 

(ii)         Buyer shall have determined that all requirements relating to the designation of such Additional Accounts imposed by Buyer under the Transfer Agreement have been satisfied.

 

Section 2.7           Removal of Accounts.

 

(a)          From time to time, Seller may request (which request Buyer may deny, except in the case of Involuntary Removals effected pursuant to Section 2.7(b)) the reassignment to it or its designee of all Buyer’s right, title and interest in, to and under the Transferred Receivables then existing and thereafter created in one or more Accounts (the “Removed Accounts”), together with the Related Security and Collections with respect thereto and Recoveries allocated to Buyer as provided herein, in each case together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto. Any such reassignment shall be subject to the satisfaction of the following conditions:

 

(i)          on or before the day immediately preceding the Removal Date, Seller shall have given Buyer and the Rating Agencies written notice of such removal and specifying the date for removal of the Removed Accounts (the “Removal Date”);

 

(ii)         except in the case of any Involuntary Removal, Buyer shall have delivered its written consent for such removal to Seller;

 

(iii)        on or prior to the Removal Date, Seller shall have delivered to Buyer an Account Schedule listing the Removed Accounts; and

 

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(iv)        except in the case of any Involuntary Removal, Seller shall have delivered to Buyer an Officer’s Certificate, dated as of the Removal Date, to the effect that no selection procedure believed by Seller to be materially adverse to the interest of Buyer or any of its creditors has been used in removing Removed Accounts from among any pool of Accounts of a similar type.

 

Upon satisfaction of the above conditions (and subject to Buyer’s agreement, except in the case of Involuntary Removals, and receipt by Buyer of the reassignment price agreed upon between Buyer and Seller), Buyer shall execute and deliver to Seller or its designee a written reassignment in substantially the form of Exhibit B (the “Reassignment”) and shall, without further action, be deemed to transfer, assign, set over and otherwise convey to Seller or its designee, effective as of the Removal Date, without recourse, representation or warranty, all the right, title and interest of Buyer in and to the Transferred Receivables arising in the Removed Accounts, the Related Security and Collections with respect thereto, together with all monies due or to become due and all amounts received or receivables with respect thereto and Insurance Proceeds relating thereto and all proceeds of the foregoing. In addition, Buyer shall execute such other documents and instruments of transfer or assignment and take such other actions as shall reasonably be requested by Seller to effect the conveyance of Transferred Receivables pursuant to this Section 2.7(a).

 

(b)          Seller shall from time to time designate as Removed Accounts any Accounts designated for purchase by a Program Partner pursuant to the terms of the related Credit Card Program Agreement (each, an “Involuntary Removal”). Any repurchase of the Transferred Receivables in Removed Accounts designated pursuant to this Section 2.7(b) shall be effected at a purchase price equal to the fair value of such Transferred Receivables as of the Removal Date as agreed upon by Buyer and Seller prior to such sale.

 

(c)          Seller may from time to time, at its option, by notice to Buyer, designate as a Removed Account any Account (each, an “Inactive Account”) that has had a zero balance and on which no charges have been made, in each case for at least the preceding 12 months. On or prior to the Removal Date for any Inactive Accounts, Seller shall have delivered to Buyer an Account Schedule listing the Inactive Accounts that are to become Removed Accounts.

 

Section 2.8           Additional Sellers. Seller may designate additional or substitute Persons to be included as Sellers under this Agreement by an amendment or joinder to this Agreement with the consent of Buyer and the filing of appropriate financing statements in order to evidence the sales of Receivables by such additional Sellers under this Agreement.

 

Section 2.9           Additional Originators. Seller may designate additional Persons as Originators under this Agreement by an amendment to this Agreement with the consent of Buyer.

 

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ARTICLE III

CONDITIONS PRECEDENT

 

Section 3.1           Conditions to all Transfers. Each sale or contribution hereunder (including the initial sale or contribution hereunder) shall be subject to satisfaction of each of the following conditions precedent (any one or more of which may be waived by Buyer) as of the Conveyance Date therefor:

 

(a)          this Agreement or counterparts hereof shall have been duly executed by, and delivered to, Seller and Buyer, and, with respect to the initial sale or contribution, Buyer shall have received such documents, instruments, agreements and legal opinions as Buyer shall reasonably request in connection with the transactions contemplated by this Agreement, each in form and substance reasonably satisfactory to Buyer;

 

(b)          the representations and warranties of Seller contained herein or in any other Related Document required to be made on such Conveyance Date shall be true and correct in all material respects as of such Conveyance Date, both before and after giving effect to such sale or contribution; and

 

(c)          Seller shall be in compliance in all material respects with each of its covenants and other agreements set forth herein.

 

The consummation by Seller of the sale or contribution, as applicable, of Transferred Assets on any Conveyance Date shall be deemed to constitute, as of any such Conveyance Date, a representation and warranty by Seller that the conditions in clauses (b) and (c) of this Section 3.1 have been satisfied.

 

ARTICLE IV

OTHER MATTERS RELATING TO SELLER

 

Section 4.1           Merger or Consolidation of, or Assumption of the Obligations of, Seller, etc.

 

(a)          Seller shall not consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person unless:

 

(i)          the Person formed by such consolidation or into which Seller is merged or the Person which acquires by conveyance or transfer the properties and assets of Seller substantially as an entirety shall be, if Seller is not the surviving entity, an entity organized and existing under the laws of the United States or any state or the District of Columbia, and, if Seller is not the surviving entity, such entity shall expressly assume, by an agreement supplemental hereto, executed and delivered to Buyer, in form reasonably satisfactory to Buyer, the performance of every covenant and obligation of Seller hereunder;

 

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(ii)         Seller has delivered to Buyer (A) an Officer’s Certificate stating that such consolidation, merger, conveyance or transfer and such supplemental agreement comply with this Section 4.1 and that all conditions precedent herein provided for relating to such transaction have been complied with, and (B) an Opinion of Counsel to the effect that such supplemental agreement is a valid and binding obligation of such surviving entity enforceable against such surviving entity 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 and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity);

 

(iii)        if Seller is not the surviving entity, the surviving entity shall file new UCC-1 financing statements with respect to the interest of Buyer in the Transferred Assets, if any; and

 

(iv)        prior written notice shall have been delivered to the Rating Agencies with respect to such merger, conveyance or transfer.

 

(b)          This Section 4.1 shall not be construed to prohibit or in any way limit Seller’s ability to effectuate any consolidation or merger pursuant to which Seller would be the surviving entity.

 

(c)          The obligations of Seller hereunder shall not be assignable nor shall any Person succeed to the obligations of Seller hereunder except in each case in accordance with (i) the provisions of the foregoing paragraphs, (ii) Section 2.8 of this Agreement or (iii) conveyances, mergers, consolidations, assumptions, sales or transfers to other entities (1) for which Seller delivers an Officer’s Certificate to Buyer indicating that Seller reasonably believes that such action will not result in a Material Adverse Effect, (2) which meet the requirements of clause (ii) of paragraph (a) and (3) for which such purchaser, transferee, pledgee or entity shall expressly assume, in an agreement supplemental hereto, executed and delivered to Buyer in writing in form satisfactory to Buyer, the performance of every covenant and obligation of Seller thereby conveyed.

 

ARTICLE V

insolvency EVENTS

 

Section 5.1           Rights upon the Occurrence of an Insolvency Event. If an Insolvency Event occurs with respect to Seller, Seller shall on the day any such event occurs, immediately cease to transfer Principal Receivables to Buyer and shall promptly give notice of such event to Indenture Trustee and Buyer. Notwithstanding any cessation of the transfer to Buyer of additional Principal Receivables, Principal Receivables transferred to Buyer 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 Buyer.

 

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ARTICLE VI

REPRESENTATIONS, WARRANTIES AND COVENANTS

 

Section 6.1           Representations and Warranties of Seller.

 

(a)          To induce Buyer to accept the Transferred Assets, Seller makes the following representations and warranties as of the Initial Transfer Date and as of each subsequent Conveyance Date, each and all of which will survive the execution of this Agreement.

 

(i)          Representations Relating to the Seller.

 

(A)         Valid Existence; Power and Authority. Seller (A) is a bank duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (B) is duly qualified to conduct business and is in good standing in each other jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification and where the failure to be so qualified or in good standing would have a Material Adverse Effect; and (C)  has all requisite power and authority to execute, deliver and perform its obligations under this Agreement.

 

(B)         UCC Information. The true legal name of Seller as registered in the jurisdiction of its organization, and the current location of Seller’s jurisdiction of organization and the address of its chief executive office are set forth in Schedule 6.1(a), as amended from time to time in accordance with Section 4.1 or 6.3(c). In addition, Schedule 6.1(a) lists Seller’s (A) federal employer identification number and (B) charter number or organizational identification number as designated by the jurisdiction of its organization, as applicable.

 

(C)         Authorization of Transaction; No Violation. The execution, delivery and performance by Seller of this Agreement and the other Related Documents to which Seller is a party and the creation and perfection of all Liens and ownership interests provided for herein: (A) have been duly authorized by all necessary action on the part of Seller, and (B) do not violate any provision of any law or regulation of any Governmental Authority, or contractual or other restrictions binding on Seller, except where such violations, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

 

(D)         Enforceability. On or prior to the Initial Transfer Date, each of the Related Documents to which Seller is a party shall have been duly executed and delivered by Seller and each such Related Document shall then constitute a legal, valid and binding obligation of Seller enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable Debtor Relief Laws, now or hereafter in effect, and by general principles of equity (whether considered in a suit at law or in equity).

 

(E)         Accuracy of Certain Information. All written factual information heretofore furnished by Seller to Buyer with respect to the Transferred Receivables for the purposes of, or in connection with, this Agreement was true and correct in all material respects on the date as of which such information was stated or certified or as of the date most recently updated; it being understood that no breach of this representation shall occur unless Buyer shall be materially and adversely affected by the failure of any such information to be true and correct.

 

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(F)         Use of Proceeds. No proceeds received by Seller under this Agreement will be used by it for any purpose that violates Regulation U of the Federal Reserve Board.

 

(G)         Judgment or Tax Lien. Seller is not aware of any judgment or tax lien filing against Seller.

 

(ii)         Representations and Warranties of Seller Regarding the Transferred Receivables. With respect to Transferred Receivables and Additional Accounts, Seller represents and warrants that:

 

(A)         each Transferred Receivable satisfies the criteria for an Eligible Receivable as of the applicable Conveyance Date;

 

(B)         this Agreement creates a valid and continuing security interest in the Transferred Receivables in favor of Buyer, which (x) with respect to Transferred Receivables existing as of the Initial Cut-Off Date and thereafter created in the Initial Accounts and the Related Security and Collections and Recoveries with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto and the proceeds thereof, will be enforceable against Seller upon execution of this Agreement and with respect to Transferred Receivables in Additional Accounts as of the applicable Addition Date and thereafter created, and the Related Security and Collections and Recoveries with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto and the proceeds thereof, will be enforceable against Seller as of the applicable Addition Date, in each case as such enforceability may be limited by applicable Debtor Relief Laws, now or hereafter in effect, and by general principles of equity (whether considered in a suit at law or in equity) and (y) upon filing of the financing statements described in Section 2.1 and, in the case of Transferred Receivables thereafter created, upon the creation thereof, will be prior to all other Liens (other than Permitted Encumbrances);

 

(C)         immediately prior to the conveyance of the Transferred Receivables pursuant to this Agreement, Seller owns and has good and marketable title to the Transferred Receivables free and clear of any Lien, claim or encumbrance of any Person (other than Permitted Encumbrances);

 

(D)         all authorizations, consents, orders or approvals of or registrations or declarations with any Governmental Authority required to be obtained, effected or given by Seller in connection with the conveyance by Seller of the Transferred Receivables to Buyer have been duly obtained, effected or given and are in full force and effect;

 

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(E)         Seller has caused on or prior to the Initial Transfer Date, or will have caused, on or prior to the applicable Addition Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest granted to Buyer under this Agreement in the Transferred Receivables arising in the Initial Accounts and Additional Accounts, respectively; and

 

(F)         subject to Permitted Encumbrances, other than the transfer and assignment and the security interest granted to Buyer pursuant to this Agreement, Seller has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Transferred Receivables and Seller has not authorized the filing of and is not aware of any financing statements against Seller that included a description of collateral covering the Transferred Receivables.

 

The representations and warranties described in this Section 6.1(a) shall survive the sale or contribution of the Transferred Assets to Buyer, any subsequent assignment, contribution or sale of the Transferred Assets by Buyer, and the termination of this Agreement and the other Related Documents and shall continue until the payment in full of all Transferred Assets.

 

(b)          Upon discovery by Seller or Buyer of a breach of any of the representations and warranties by Seller set forth in Section 6.1(a), the party discovering such breach shall give prompt written notice to the other. Seller agrees to cooperate with Buyer in attempting to cure any such breach.

 

(c)          If any representation or warranty of Seller contained in Section 6.1(a)(ii), is not true and correct in any material respect as of the date specified therein with respect to any Transferred Receivable or any Account and as a result of such breach any Transferred Receivables in the related Account become Charged-Off Receivables or Buyer’s rights in, to or under such Transferred Receivables or the proceeds of such Transferred Receivables are impaired or such proceeds are not available for any reason to Buyer free and clear of any Lien other than Permitted Encumbrances, unless cured within 60 days (or such longer period, not in excess of 150 days, as may be agreed to by Buyer) after the earlier to occur of the discovery thereof by Seller or receipt by Seller or a designee of Seller of notice thereof given by Buyer or the Indenture Trustee acting at the direction of the Majority Holders of all Series, then such Transferred Receivable shall be designated an “Ineligible Receivable;” provided that such Transferred Receivables will not be deemed to be Ineligible Receivables if, on any day prior to the end of such 60-day or longer period, the relevant representation and warranty shall be true and correct in all material respects as if made on such day.

 

(d)          On the first Conveyance Date that coincides with or falls after the date on which any Transferred Receivable is designated as an Ineligible Receivable, Seller shall repurchase such Ineligible Receivable from Buyer as provided below. The purchase price for the Ineligible Receivables in any Account shall equal the Purchase Price paid for such Ineligible Receivables, less any Principal Collections received on that Receivable in the interim. On any Conveyance Date the aggregate amount of such repurchase prices then payable may be netted against the Purchase Price then payable, unless Buyer informs Seller that Buyer requires funds to make payments on account of the related Ineligible Receivables under any of the Related Documents, in which case such amounts shall be paid gross.

 

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(e)          Upon the payment, if any, required to be made to Buyer as provided in Section 6.1(d), Buyer shall automatically and without further action be deemed to transfer, assign, set over and otherwise convey to Seller or its designee, without recourse, representation or warranty, all the right, title and interest of Buyer in and to the applicable Transferred Receivables, all moneys due or to become due and all amounts received with respect thereto and all proceeds thereof. Buyer shall execute such documents and instruments of transfer or assignment and take such other actions as shall reasonably be requested by Seller to effect the conveyance of such Transferred Receivables pursuant to this Section. The obligation of Seller to repurchase Ineligible Receivables pursuant to Section 6.1(d) shall be the sole remedy respecting any event giving rise to such obligation available to Buyer or any assignee of its rights under this Agreement.

 

Section 6.2           Affirmative Covenants of Seller. Seller covenants and agrees that, unless otherwise consented to by Buyer, from and after the Initial Transfer Date and until the date after the Agreement Termination Date when the Outstanding Balance of all Transferred Receivables have been reduced to zero:

 

(a)          Account Allocations. If Seller is unable for any reason to transfer Transferred Receivables to Buyer in accordance with the provisions of this Agreement (including by reason of the application of the provisions of Section 5.1 or an order by any Governmental Authority that Seller not transfer any additional Principal Receivables to Buyer) then, in any such event: (i) Seller agrees to allocate and pay to Buyer, after the date of such inability, all Collections with respect to Principal Receivables and all amounts which would have constituted Collections with respect to Principal Receivables but for Seller’s inability to transfer such Transferred Receivables (up to an aggregate amount equal to the amount of Principal Receivables held by Buyer on such date of inability); (ii) Seller agrees that such amounts shall be deemed Collections of Transferred Receivables; and (iii) for only so long as all Collections and all amounts which would have constituted Collections are allocated and applied in accordance with clauses (i) and (ii), Principal Receivables (and all amounts which would have constituted Principal Receivables, but for Seller’s inability to transfer Transferred Receivables to Buyer) that are charged off as uncollectible shall continue to be allocated in accordance with the Indenture, and all amounts that would have constituted Principal Receivables, but for Seller’s inability to transfer Transferred Receivables to Buyer, shall be deemed to be Principal Receivables for the purpose of all calculations under the Related Documents. If Seller is unable pursuant to any Requirement of Law to allocate Collections as described above, Seller agrees that it shall allocate collections, charge-offs and other incidents of the receivables in the Accounts between Transferred Receivables and other receivables outstanding in the Accounts on a basis reasonably intended to approximate the actual portions allocable to Transferred Receivables and other receivables, respectively. The parties hereto agree that Finance Charge Receivables, whenever created, accrued in respect of Principal Receivables that have been conveyed to Buyer, or that would have been conveyed to Buyer but for the above described inability to transfer such Receivables, shall continue to be held by Buyer notwithstanding any cessation of the transfer of additional Principal Receivables to Buyer.

 

(b)          Notice of Material Event. Seller shall promptly inform Buyer in writing of the occurrence of any of the following, in each case setting forth the details thereof and what action, if any, Seller proposes to take with respect thereto:

 

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(i)          any Litigation commenced against Seller or with respect to or in connection with all or any substantial portion of the Transferred Assets or developments in such Litigation, in each case, that Seller believes has a reasonable risk of being determined adversely and having a Material Adverse Effect;

 

(ii)         the commencement of a proceeding against Seller seeking a decree or order in respect of Seller (A) under the Federal Deposit Insurance Act or any other applicable federal, state or foreign bankruptcy or other similar law, (B) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for Seller or for any substantial part of Seller’s assets, or (C) ordering the winding-up or liquidation of the affairs of Seller; or

 

(iii)        Seller’s failure to comply with any of its obligations under this Agreement.

 

(c)          Notice of Liens. Seller shall notify Buyer promptly after becoming aware of any Lien on any Transferred Asset other than Permitted Encumbrances.

 

(d)          Information for Reports. Seller shall promptly deliver any material written information, documents, records or reports with respect to the Transferred Receivables that Buyer shall reasonably request.

 

(e)          Deposit of Collections. Seller shall transfer to Buyer or Servicer on its behalf, promptly, and in any event no later than two Business Days after receipt thereof, all Collections it may receive in respect of Transferred Assets, including amounts received from Program Partners on account of in-store payments through netting under the applicable Credit Card Program Agreement, if any.

 

(f)          Credit Card Program Agreement and Policies. Seller shall comply with and perform its obligations under the Credit Card Program Agreements and the Contracts relating to the Accounts and the Credit and Collection Policies except insofar as any failure to comply or perform would not materially or adversely affect the rights of Buyer. Seller may change the terms and provisions of the Credit Card Program Agreements, the Contracts or the Credit and Collection Policies (including the reduction of the required minimum monthly payment, the calculation of the amount, or the timing, of charge offs and periodic finance charges and other fees assessed thereon), but subject to Section 6.3(b) and only if such change is made applicable to any comparable segment of the revolving credit card accounts owned and serviced by Seller which have characteristics the same as, or substantially similar to, the Accounts that are the subject of such change, except as otherwise restricted by an endorsement, sponsorship or other agreement between Seller and an unrelated third party or by the terms of the Credit Card Program Agreements.

 

Section 6.3           Negative Covenants of Seller. Seller covenants and agrees that, without the prior written consent of Buyer, from and after the Initial Transfer Date and until the date after the Agreement Termination Date when the Outstanding Balances of all Transferred Receivables transferred hereunder prior to such Agreement Termination Date have been reduced to zero:

 

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(a)          Liens. Seller shall not create, incur, assume or permit to exist any Lien, other than Permitted Encumbrances, on or with respect to the Transferred Assets.

 

(b)          Periodic Finance Charges and Other Fees. Except as such reduction is otherwise required by any Requirement of Law, or as is deemed by Seller to be necessary in order for it to maintain its credit card business, based upon Seller’s good faith assessment, in its sole discretion, of the nature of the competition in the credit card business, Seller shall not at any time make a reduction in the periodic finance charges assessed on any Transferred Receivable or other fees on any Account if as a result of such reduction, Seller’s reasonable expectation of the portfolio yield for any series of notes secured, directly or indirectly, by the Transferred Receivables as of the date of such reduction would be less than the then current base rate for that series, all as determined in accordance with the terms of that series.

 

(c)          UCC Matters. Seller shall not change its state of organization or incorporation or its name such that any financing statement filed to perfect Buyer’s interests under this Agreement would become seriously misleading, unless Seller shall have given Buyer not less than 15 days’ prior written notice of such change and shall have delivered to Buyer a revised Schedule 6.1(a), which shall automatically amend and restate Schedule 6.1(a) hereto.

 

(d)          [Reserved].

 

(e)          Sale Characterization. For accounting purposes, Seller shall not account for the transactions contemplated by this Agreement in any manner other than, with respect to the sale or contribution of each Transferred Receivable, as a true sale and/or absolute assignment of its full right, title and ownership interest in the related Transferred Assets to Buyer. Seller shall also maintain its records and books of account in a manner which clearly reflects each such sale of the Transferred Receivables to Buyer.

 

Section 6.4           Compliance with the FDIC Rule.

 

(a)          Each of Buyer and Seller acknowledges and agrees that the purpose of this Section 6.4 is to comply with the provisions of the FDIC Rule and FDIC Rule Interpretations.

 

(b)          Schedule 6.4 is expressly incorporated in this Agreement. Each of Buyer and Seller agree to perform their respective obligations set forth in Schedule 6.4.

 

(c)          In the event that Synchrony Bank becomes the subject of an insolvency proceeding and the FDIC as receiver or conservator provides a written notice of repudiation as contemplated by paragraph (d)(4)(ii) of the FDIC Rule to Buyer or Seller, the party receiving such notice shall promptly deliver such notice to the other party, with a copy to Indenture Trustee.

 

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ARTICLE VII

MISCELLANEOUS

 

Section 7.1           Notices. Except as otherwise provided herein, whenever it is provided herein that any notice, demand, request, consent, approval, declaration or other communication shall or may be given to or served upon any of the parties by any other parties, or whenever any of the parties desires to give or serve upon any other parties any communication with respect to this Agreement, each such notice, demand, request, consent, approval, declaration or other communication shall be in writing and shall be deemed to have been validly served, given or delivered (a) upon the earlier of actual receipt and three Business Days after deposit in the United States mail, registered or certified mail, return receipt requested, with proper postage prepaid, (b) upon transmission, when sent by facsimile, email or other similar electronic transmission (with such transmission promptly confirmed by delivery of a copy by personal delivery or United States mail as otherwise provided in this Section 7.1), (c) one Business Day after deposit with a reputable overnight courier with all charges prepaid or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address or facsimile number set forth below or to such other address (or facsimile number) as may be substituted by notice given as herein provided. The giving of any notice required hereunder may be waived in writing by the party entitled to receive such notice. Failure or delay in delivering copies of any notice, demand, request, consent, approval, declaration or other communication to any Person (other than Buyer) designated in any written communication provided hereunder to receive copies shall in no way adversely affect the effectiveness of such notice, demand, request, consent, approval, declaration or other communication. Notwithstanding the foregoing, whenever it is provided herein that a notice is to be given to any other party hereto by a specific time, such notice shall be effective only if actually received by such party prior to such time, and if such notice is received after such time or on a day other than a Business Day, such notice shall be effective only on the immediately succeeding Business Day.

 

If to Seller:

Synchrony Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇ – Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

Email: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇

 

If to Buyer:

Synchrony Card Funding, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇ – President
Telephone:  (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

Email: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇

 

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Section 7.2           No Waiver; Remedies. (a) Either party’s failure, at any time or times, to require strict performance by the other party hereto of any provision of this Agreement shall not waive, affect or diminish any right of such party thereafter to demand strict compliance and performance herewith or therewith. Any suspension or waiver of any breach or default hereunder shall not suspend, waive or affect any other breach or default whether the same is prior or subsequent thereto and whether of the same or a different type. None of the undertakings, agreements, warranties, covenants and representations of either party contained in this Agreement, and no breach or default by either party hereunder or thereunder, shall be deemed to have been suspended or waived by the other party unless such waiver or suspension is by an instrument in writing signed by an officer of or other duly authorized signatory of such party and directed to the defaulting party specifying such suspension or waiver.

 

(b)          Each party’s rights and remedies under this Agreement shall be cumulative and nonexclusive of any other rights and remedies that such party may have under any other agreement, including the other Related Documents, by operation of law or otherwise.

 

Section 7.3           Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and Buyer and their respective successors and permitted assigns, except as otherwise provided herein. Except as provided below and in Sections 2.8 or 4.1 of this Agreement, Seller may not assign, transfer, hypothecate or otherwise convey its rights, benefits, obligations or duties hereunder, or consent to any assignment by Issuer under the Transfer Agreement, without having obtained the prior express written consent of Buyer. Any such purported assignment, transfer, hypothecation or other conveyance by Seller without the prior express written consent of Buyer shall be void. Seller acknowledges that under the Transfer Agreement Buyer will assign its rights granted hereunder to Issuer, and upon such assignment, Issuer shall have, to the extent of such assignment, all rights of Buyer hereunder and each such transferee may in turn transfer such rights. The terms and provisions of this Agreement are for the purpose of defining the relative rights and obligations of Seller and Buyer with respect to the transactions contemplated hereby and no Person shall be a third-party beneficiary of any of the terms and provisions of this Agreement.

 

Section 7.4           Termination. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until the earlier of (a) the termination of Issuer and (b) the date selected by Seller upon prior notice thereof to Buyer (such date the “Agreement Termination Date”).

 

Section 7.5           Survival. Except as otherwise expressly provided herein or in any other Related Document, no termination or cancellation (regardless of cause or procedure) of any commitment made by Seller under this Agreement shall in any way affect or impair the obligations, duties and liabilities of Seller or the rights of Seller relating to any unpaid portion of any and all obligations of Seller to Buyer, due or not due, liquidated, contingent or unliquidated or any transaction or event occurring prior to such termination, or any transaction or event, the performance of which is required after the Agreement Termination Date. Except as otherwise expressly provided herein or in any other Related Document, all undertakings, agreements, covenants, warranties and representations of or binding upon Seller, and all rights of Seller hereunder shall not terminate or expire, but rather shall survive any such termination or cancellation and shall continue in full force and effect until the date after the Agreement Termination Date when the Outstanding Balances of all Transferred Receivables transferred hereunder prior to such Agreement Termination Date have been reduced to zero; provided, that the rights and remedies pursuant to the provisions of Sections 2.5, 7.3, 7.11, 7.13 and 7.18 shall be continuing and shall survive any termination of this Agreement.

 

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Section 7.6           Complete Agreement; Modification of Agreement. This Agreement constitutes the complete agreement between the parties with respect to the subject matter hereof, supersedes all prior agreements and understandings relating to the subject matter hereof and thereof. Without the consent of the Holders of any Notes or any other Person but with prior notice to each Rating Agency, at any time and from time to time, upon either (a) delivery by Seller or Buyer to Indenture Trustee of an Officer’s Certificate to the effect that Seller or Buyer, as applicable, reasonably believes that such amendment, modification, termination or waiver will not have an Adverse Effect or (b) satisfaction of the Rating Agency Condition with respect to each affected Class or Tranche of Notes for which an Officer’s Certificate described in the preceding clause (a) has not been delivered, Seller or Buyer may modify, alter or amend this Agreement. Notwithstanding any other provision of this Section 7.6, Schedule 6.1(a) shall be automatically amended upon delivery by Seller to Buyer of an updated Schedule 6.1(a).

 

Section 7.7           GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. (a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.

 

(b)          EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED FURTHER, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE Buyer FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE RECEIVABLES OR ANY SECURITY FOR THE OBLIGATIONS OF SELLER ARISING HEREUNDER OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF Buyer. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 7.1 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY’S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

 

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(c)          BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. NOTHING IN THIS SECTION 7.7 SHALL LIMIT THE RIGHTS OF ANY REQUESTING PARTY PURSUANT TO SECTION 7.16.

 

Section 7.8           Counterparts. This Agreement may be executed in any number of separate counterparts, each of which shall collectively and separately constitute one agreement.

 

Section 7.9           Severability. Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement.

 

Section 7.10         Section Titles. The section titles and table of contents contained in this Agreement are provided for ease of reference only and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.

 

Section 7.11         No Setoff. Seller’s obligations under this Agreement shall not be affected by any right of setoff, counterclaim, recoupment, defense or other right Seller might have against Buyer, all of which rights are hereby expressly waived by Seller.

 

Section 7.12         Confidentiality. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, THE OBLIGATIONS OF CONFIDENTIALITY CONTAINED HEREIN, SHALL NOT APPLY TO THE FEDERAL TAX STRUCTURE OR FEDERAL TAX TREATMENT OF THIS TRANSACTION, AND EACH PARTY (AND ANY EMPLOYEE, REPRESENTATIVE, OR AGENT OF ANY PARTY) MAY DISCLOSE TO ANY AND ALL PERSONS, WITHOUT LIMITATION OF ANY KIND, THE FEDERAL TAX STRUCTURE AND FEDERAL TAX TREATMENT OF THIS TRANSACTION. THE PRECEDING SENTENCE IS INTENDED TO CAUSE THIS TRANSACTION TO BE TREATED AS NOT HAVING BEEN OFFERED UNDER CONDITIONS OF CONFIDENTIALITY FOR PURPOSES OF SECTION 1.6011-4(B)(3) (OR ANY SUCCESSOR PROVISION) OF THE TREASURY REGULATIONS PROMULGATED UNDER SECTION 6011 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND SHALL BE CONSTRUED IN A MANNER CONSISTENT WITH SUCH PURPOSE. IN ADDITION, EACH PARTY ACKNOWLEDGES THAT IT HAS NO PROPRIETARY OR EXCLUSIVE RIGHTS TO THE FEDERAL TAX STRUCTURE OF THIS TRANSACTION OR ANY FEDERAL TAX MATTER OR FEDERAL TAX IDEA RELATED TO THIS TRANSACTION.

 

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Section 7.13         Further Assurances. (a) Seller shall, at its sole cost and expense, upon request of Buyer, promptly and duly authorize, execute and/or deliver, as applicable, any and all further instruments and documents and take such further actions that may be necessary or desirable or that Buyer may request to carry out more effectively the provisions and purposes of this Agreement or to obtain the full benefits of this Agreement and of the rights and powers herein granted, including authorizing and filing any financing or continuation statements under the UCC with respect to the ownership interests or Liens granted hereunder. Seller hereby authorizes Buyer to file any such financing or continuation statements without the signature of Seller to the extent permitted by applicable law. A carbon, photographic or other reproduction of this Agreement or of any notice or financing statement covering the Transferred Assets or any part thereof shall be sufficient as a notice or financing statement where permitted by law. If any amount payable under or in connection with any of the Transferred Assets is or shall become evidenced by any instrument, such instrument, other than checks and notes received in the ordinary course of business, shall be duly endorsed in a manner satisfactory to Buyer immediately upon Seller’s receipt thereof and promptly delivered to or at the direction of Buyer.

 

(b)          If Seller fails to perform any agreement or obligation under this Section 7.13, Buyer may (but shall not be required to) itself perform, or cause performance of, such agreement or obligation, and the reasonable expenses of Buyer incurred in connection therewith shall be payable by Seller upon demand of Buyer.

 

Section 7.14         Relationship of Parties. Seller and Buyer agree that in performing their obligations pursuant to this Agreement, they are in the position of independent contractors. This Agreement is not intended to create, nor does it create and shall not be construed to create, a relationship of partner or joint venturer or any association for profit between Seller and Buyer.

 

Section 7.15         No Indirect or Consequential Damages. NO PARTY TO THIS AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS AGREEMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY TRANSACTION CONTEMPLATED HEREUNDER.

 

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Section 7.16         Dispute Resolution.

 

(a)          If a request to Seller to repurchase a Transferred Receivable pursuant to this Agreement is not resolved by the end of the 180-day period beginning on the date on which Seller receives notice of such request, then the Requesting Party will have the right to refer the matter, at its discretion, to either mediation or arbitration pursuant to this Section 7.16; provided, however, that any such referral shall be made (i) within the applicable statute of limitations period and (ii) within 90 days of the delivery of the monthly noteholder statement following the end of such 180-day period.

 

(b)          The Requesting Party shall provide notice in accordance with Section 7.1 of its intention to refer the matter to mediation or arbitration, as applicable, to Seller, with a copy to Buyer (if not the Requesting Party). Seller agrees to participate in the resolution method selected by the Requesting Party. Seller shall provide notice to Buyer, Issuer and Indenture Trustee that it has received a request to mediate or arbitrate a repurchase request.

 

(c)          If the Requesting Party selects mediation (including non-binding arbitration) as the resolution method, the following provisions will apply:

 

(i)          the mediation will be administered by a nationally recognized arbitration and mediation association, and conducted pursuant to such association’s mediation procedures in effect at such time;

 

(ii)         the fees and expenses of the mediation will be allocated as mutually agreed by the parties as part of the mediation;

 

(iii)        the mediator will be impartial, knowledgeable about and experienced with the laws of the State of New York that are relevant to the repurchase dispute and will be appointed from a list of neutrals maintained by the American Arbitration Association (the “AAA”); and

 

(iv)        if the parties fail to agree at the completion of the mediation, the Requesting Party may refer the repurchase request to arbitration under this Section 7.16 or may, in accordance with the terms of this Agreement and the Indenture, pursue other remedies including legal proceedings.

 

(d)          If the Requesting Party selects arbitration as the resolution method, the following provisions will apply:

 

(i)          The arbitration will be administered by a nationally recognized arbitration and mediation association, and conducted pursuant to such association’s arbitration procedures in effect at such time;

 

(ii)         The arbitrator will be impartial, knowledgeable about and experienced with the laws of the State of New York that are relevant to the dispute hereunder and will be appointed from a list of neutrals maintained by the AAA;

 

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(iii)        The arbitrator will make its final determination no later than 90 days after appointment or as soon as practicable thereafter. The arbitrator will resolve the dispute in accordance with the terms of this Agreement, and may not modify or change this Agreement in any way. The arbitrator will not have the power to award punitive damages or consequential damages in any arbitration conducted by it, and Seller shall not be required to pay more than the repurchase price required to be paid by Seller in accordance with Section 6.1. In its final determination, the arbitrator will determine and award the costs of arbitration (including the fees of the arbitrator, cost of any record or transcript of the arbitration and administrative fees) and reasonable attorneys’ fees to the parties as determined by the arbitrator in its reasonable discretion. The determination of the arbitrator will be in writing and counterpart copies will be promptly delivered to the parties. The determination will be final and non-appealable absent manifest error, except for actions to confirm or vacate the determination that are permitted under applicable federal or state law and may be enforced in any court of competent jurisdiction;

 

(iv)        By selecting binding arbitration, the Requesting Party is waiving the right to ▇▇▇ in court, including the right to a trial by jury; and

 

(v)         No Person may bring a putative or certified class action to arbitration.

 

(e)          Seller will not be required to produce personally identifiable information about any Obligor for purposes of any mediation or arbitration. The details and/or existence of any unfulfilled repurchase request, any meetings or discussions regarding any unfulfilled repurchase request, mediations or arbitration proceedings conducted under this Section 7.16, including all offers, promises, conduct and statements, whether oral or written, made in the course of the parties’ attempt to resolve an unfulfilled repurchase request, any information exchanged in connection with any mediation, and any discovery taken in connection with any arbitration (collectively, “Confidential Information”), shall be and remain confidential and inadmissible (except as required in accordance with applicable law) for any purpose, including impeachment, in any mediation, arbitration or litigation, or other proceeding (including any proceeding under this Section 7.16) other than as required to be disclosed in accordance with applicable law, regulatory requirements, or court order or to the extent that Seller, in its sole discretion, elects to disclose such information. Such information will be kept strictly confidential and will not be disclosed to any third party; provided that a party may disclose such information to its own attorneys, experts, accountants and other agents and representatives (collectively, “Representatives”), as reasonably required in connection with any resolution procedure under this Section 7.16, if the disclosing party (a) directs such Representatives to keep the information confidential, (b) is responsible for any disclosure by its Representatives of such information and (c) takes at its sole expense all reasonable measures to restrain such Representatives from disclosing such information. If any party receives a subpoena or other request for information from a third party (other than a governmental regulatory body) for Confidential Information, the recipient will promptly notify the other party and will provide the other party with the opportunity to object to the production of its Confidential Information or seek other appropriate protective remedies, consistent with the applicable requirements of law and regulation. If, in the absence of a protective order, such party or any of its representatives are compelled as a matter of law, regulation, legal process or by regulatory authority to disclose any portion of the Confidential Information, such party may disclose to the party compelling disclosure only the part of such Confidential Information that is required to be disclosed.

 

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Section 7.17         Relationship of Parties. Seller and Buyer agree that in performing their obligations pursuant to this Agreement, they are in the position of independent contractors. This Agreement is not intended to create, nor does it create and shall not be construed to create, a relationship of partner or joint venturer or any association for profit between Seller and Buyer.

 

Section 7.18         No Petition. Seller covenants and agrees that, from and after the date hereof and until the date one year plus one day following the date on which all amounts due with respect to securities that were issued by any entity holding Transferred Assets have been paid in full in cash, Seller shall not, directly or indirectly, institute or cause to be instituted against Buyer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other proceeding under any federal or state bankruptcy or similar law; provided that the foregoing shall not in any way limit Seller’s right to pursue any other creditor rights or remedies that Seller may have under any applicable law. Without prejudice to the survival of any other agreement of Seller hereunder, the agreements and obligations of Seller under this Section 7.18 shall survive the termination of this Agreement.

 

Section 7.19         Effectiveness. This Agreement amends and restates the Original Receivables Sale Agreement as of the Amendment and Restatement Effective Date and the terms and provisions of the Original Receivables Sale Agreement are restated hereby in their entirety as of the Amendment and Restatement Effective Date. From and after the Amendment and Restatement Effective Date, each reference to the Original Receivables Sale Agreement in any other document, instrument or agreement shall mean and be a reference to this Agreement. For the avoidance of doubt, all obligations and liabilities of the Seller and the Buyer under or in connection with the Original Receivables Sale Agreement shall remain outstanding hereunder and shall be enforceable against the Seller or the Buyer, as applicable, under this Agreement. This Agreement does not constitute a novation of the Original Receivables Sale Agreement (or a novation of any of the obligations thereunder).

 

[Remainder of page intentionally left blank.]

 

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IN WITNESS WHEREOF, Seller and Buyer have caused this Amended and Restated Receivables Sale Agreement to be duly executed by their respective officers as of the day and year first above written.

 

  SYNCHRONY BANK, as Seller
   
  By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ 
  Name:  ▇▇▇▇ ▇▇▇▇▇▇▇▇ 
  Title: Senior Vice President & Treasurer
   
 

SYNCHRONY CARD FUNDING, LLC, as Buyer

   
  By: /s/ ▇▇▇▇▇▇ ▇▇▇
  Name:  ▇▇▇▇▇▇ ▇▇▇
  Title:  Manager and Vice President

   

 S-1Receivables Sale Agreement

 

 

SCHEDULE 1

LIST OF ACCOUNTS

 

[Delivered separately]

 

 Schedule 1 

 

 

SCHEDULE 6.1(a)

 

SELLER’S UCC INFORMATION

 

Legal Name

 

Synchrony Bank

 

Jurisdiction of Organization

 

United States

 

Address of Chief Executive ▇▇▇▇▇▇

 

▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇

▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

 

Federal Employer Identification Number

 

▇▇-▇▇▇▇▇▇▇

 

 Schedule 6.1(a) 

 

 

SCHEDULE 6.4

 

REQUIREMENTS OF FDIC RULE

 

As required by the FDIC Rule:

 

(a)          As used in this Schedule, references to (i) “sponsor” shall mean Synchrony Bank, (ii) “issuing entity” shall mean, collectively, Transferor, Issuer and each other transferee of the Transferred Assets that is an “issuing entity” as defined in the FDIC Rule, (iii) “servicer” shall mean Servicer and each other “servicer” of the financial assets within the meaning of the FDIC Rule, (iv) “obligations” or “securitization obligations” shall mean the notes issued by Issuer pursuant to the Indenture, and (v) “financial assets” and “securitized financial assets” shall mean the Transferred Assets.

 

(b)          The issuing entity shall make available to investors, information describing the financial assets, obligations, capital structure, compensation of relevant parties, and relevant historical performance data set forth below:

 

(i)          On or prior to issuance of obligations and at the time of delivery of any periodic distribution report and, in any event, at least once per calendar quarter, while obligations are outstanding, information about the obligations and the securitized financial assets shall be disclosed to all potential investors at the financial asset or pool level, as appropriate for the financial assets, and security-level to enable evaluation and analysis of the credit risk and performance of the obligations and financial assets. Such information and its disclosure, at a minimum, shall comply with the requirements of Regulation AB or any successor disclosure requirements for public issuances, even if the obligations are issued in a private placement or are not otherwise required to be registered; provided that information that is unknown or not available to the sponsor or the issuing entity after reasonable investigation may be omitted if the issuing entity includes a statement in the offering documents disclosing that the specific information is otherwise unavailable;

 

(ii)         On or prior to issuance of obligations, the structure of the securitization and the credit and payment performance of the obligations shall be disclosed, including the capital or tranche structure, the priority of payments and specific subordination features; representations and warranties made with respect to the financial assets, the remedies for and the time permitted for cure of any breach of representations and warranties, including the repurchase of financial assets, if applicable; liquidity facilities and any credit enhancements permitted by the FDIC Rule, any waterfall triggers or priority of payment reversal features; and policies governing delinquencies, servicer advances, loss mitigation, and write-offs of financial assets;

 

 Sched 6.4-1 

 

 

 

(iii)        While obligations are outstanding, the issuing entity shall provide to investors information with respect to the credit performance of the obligations and the financial assets, including periodic and cumulative financial asset performance data, delinquency and modification data for the financial assets, substitutions and removal of financial assets, servicer advances, as well as losses that were allocated to such tranche and remaining balance of financial assets supporting such tranche, if applicable, and the percentage of each tranche in relation to the securitization as a whole; and

 

(iv)        The nature and amount of compensation paid to the originator, sponsor, rating agency or third-party advisor, any mortgage or other broker, and the servicer(s), and the extent to which any risk of loss on the underlying assets is retained by any of them for such securitization shall be disclosed. Issuer shall provide to investors while any obligations are outstanding any changes to such information and the amount and nature of payments of any deferred compensation or similar arrangements to any of the parties.

 

 Sched 6.4-2 

 

 

EXHIBIT A

FORM OF ASSIGNMENT OF RECEIVABLES
IN ADDITIONAL ACCOUNTS

 

(As required by Section 2.6 of the Amended and Restated Receivables Sale Agreement)

 

ASSIGNMENT No.         OF RECEIVABLES IN ADDITIONAL ACCOUNTS (this “Assignment”) dated as of                     , by and among SYNCHRONY BANK, a federal savings bank organized under the laws of the United States, as Seller (“Seller”) and SYNCHRONY CARD FUNDING, LLC (“Buyer”), pursuant to the Agreement referred to below.

 

WITNESSETH :

 

WHEREAS, Seller and Buyer are parties to the Amended and Restated Receivables Sale Agreement, dated as of May 1, 2018 (as it may be amended and supplemented from time to time the “Agreement”); and

 

WHEREAS, pursuant to the Agreement, Seller wishes to designate Additional Accounts to be included as Accounts and to convey the Transferred Receivables in such Additional Accounts that have been designated “Additional Accounts” pursuant to the Agreement, whether now existing or hereafter created, to Buyer (as each such term is defined in the Agreement); and

 

WHEREAS, Buyer is willing to accept such designation and conveyance subject to the terms and conditions hereof;

 

NOW, THEREFORE, Seller and Buyer hereby agree as follows:

 

1.          Defined Terms. All terms defined in the Agreement and used herein shall have such defined meanings when used herein, unless otherwise defined herein.

 

“Addition Cut-Off Date” means, with respect to Additional Accounts designated hereby, the [close][opening] of business on [______], 20[].

 

“Addition Date” means, with respect to the Additional Accounts designated hereby, [                    ], 20[      ].

 

“Addition Representation Date” means, with respect to Additional Accounts designated hereby, [______], 20[].1

 

2.          Designation of Additional Accounts. The Accounts listed on Schedule 1 to this Assignment have been designated “Additional Accounts” pursuant to the Agreement. Schedule 1 to this Assignment, as of the Addition Date, shall supplement Schedule 1 to the Agreement as required by Section 2.1(b) of the Agreement.

 

 

1 [Date will be no more than 7 Business Days prior to the Addition Cut-Off Date.]

 

 Exhibit A - 1 

 

  

3.          Conveyance of Receivables. (a) Effective as of the [close][opening] of business on the Addition Date, Seller does hereby transfer, assign, set over and otherwise convey, without recourse except as set forth in this Agreement, to Buyer, all its right, title and interest in, to and under the Receivables in such Additional Accounts existing on the Addition Cut-Off Date and thereafter created from time to time in such Additional Accounts until the Agreement Termination Date, the Related Security and Collections with respect thereto and related Recoveries, together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto and all proceeds of the foregoing. The foregoing does not constitute and is not intended to result in the creation or assumption by Buyer of any obligation of any Originator, Seller or any other Person in connection with the Accounts or the Transferred Receivables or under any agreement or instrument relating thereto, including any obligation to Obligors, merchant banks, Program Partners, clearance systems or insurers.

 

(b)          Seller agrees to record and file, at its own expense, financing statements (and continuation statements when applicable) with respect to the Receivables in Additional Accounts existing on the Addition Cut-Off Date and thereafter created meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect, and maintain perfection of, the sale and assignment of its interest in such Receivables to Buyer, and to deliver a file-stamped copy of each such financing statement or other evidence of such filing to Buyer within ten (10) days of the Addition Date. Buyer shall be under no obligation whatsoever to file such financing or continuation statements or to make any other filing under the UCC in connection with such sale and assignment.

 

(c)          In connection with such assignment, Seller further agrees, at its own expense, on or prior to the date of this Assignment, to indicate and cause Servicer to indicate in the appropriate electronic records that Receivables created in connection with the Additional Accounts and designated hereby have been conveyed to Buyer pursuant to the Agreement and this Assignment.

 

(d)          Seller does hereby grant to Buyer a security interest in all of its right, title and interest, whether now owned or hereafter acquired, in and to the Receivables in the Additional Accounts existing on the Addition Cut-Off Date and thereafter created, the Related Security and Collections with respect thereto and Recoveries allocated to Buyer as provided in the Agreement, together with all monies due or to become due and all amounts received or receivable with respect thereto and all Insurance Proceeds relating thereto and all proceeds of the foregoing. This Assignment constitutes a security agreement under the UCC.

 

4.          Acceptance by Buyer. Buyer hereby acknowledges its acceptance of all right, title and interest to the property, existing on the Addition Cut-Off Date and thereafter created, conveyed to Buyer pursuant to Section 3(a) of this Assignment. Buyer further acknowledges that, prior to or simultaneously with the execution and delivery of this Assignment, Seller delivered to it the Account Schedule described in Section 2 of this Assignment.

 

 Exhibit A - 2 

 

  

5.          Representations and Warranties of Seller. Seller hereby represents and warrants to Buyer as of the Addition Date:

 

(a)          This Assignment constitutes a legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms, except as such enforceability may be limited by applicable Debtor Relief Laws and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity);

 

(b)          each Transferred Receivable satisfies the criteria for an Eligible Receivable as of the Addition Representation Date;

 

(c)          each Additional Account is, as of the Addition Representation Date, an Eligible Account,

 

(d)          the Agreement and this Assignment creates a valid and continuing security interest in the Receivables in the Additional Accounts and the Related Security and in Collections and Recoveries with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto and the proceeds thereof in favor of Buyer, which security interest (x) is enforceable against Seller, as such enforceability may be limited by applicable Debtor Relief Laws, now or hereafter in effect, and by general principles of equity (whether considered in a suit at law or in equity) and (y) upon filing of the financing statements described herein and, in the case of Transferred Receivables thereafter created, upon the creation thereof, will be prior to all other Liens (other than Permitted Encumbrances);

 

(e)          immediately prior to the conveyance of the Receivables pursuant to this Assignment, Seller owns and has good and marketable title to, or has a valid security interest in, the Receivables free and clear of any Lien, claim or encumbrance of any Person, (other than Permitted Encumbrances); and

 

(f)          subject to Permitted Encumbrances, other than the transfer and assignment and the security interest granted to Buyer pursuant to this Assignment, Seller has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Transferred Receivables. Seller has not authorized the filing of and is not aware of any financing statements against Seller that included a description of collateral covering the Transferred Receivables.

 

6.          Amendment of the Agreement. The Agreement is hereby amended to provide that all references therein to “this Agreement” and “herein” shall be deemed from and after the Addition Date to be a dual reference to this Agreement as supplemented by this Assignment. Except as expressly amended hereby, all of the representations, warranties, terms, covenants and conditions of the Agreement shall remain unamended and shall continue to be, and shall remain, in full force and effect in accordance with its terms.

 

7.          Counterparts. This Assignment 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.

 

8.          GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

 Exhibit A - 3 

 

 

IN WITNESS WHEREOF, the undersigned have caused this Assignment of Transferred Receivables in Additional Accounts to be duly executed and delivered by their respective duly authorized officers on the day and year first above written.

 

  SYNCHRONY BANK, Seller
   
  By:  
  Name:  
  Title:  
   
 

SYNCHRONY CARD FUNDING, LLC,

Buyer

   
  By:  
  Name:  
  Title:  

 

 Exhibit A - 4 

 

 

Schedule I
to Assignment of Transferred Receivables
in Additional Accounts

 

ADDITIONAL ACCOUNTS

 

 Exhibit A - 5 

 

 

EXHIBIT B

 

FORM OF REASSIGNMENT OF RECEIVABLES
IN REMOVED ACCOUNTS

 

(As required by Section 2.7 of the Amended and Restated Receivables Sale Agreement)

 

REASSIGNMENT No. _______ OF RECEIVABLES IN REMOVED ACCOUNTS dated as of _________, by and among SYNCHRONY BANK, a federal savings bank organized under the laws of the United States, as Seller (the “Seller”), and SYNCHRONY CARD FUNDING, LLC (the “Buyer”), pursuant to the Amended and Restated Receivables Sale Agreement referred to below.

 

WITNESSETH:

 

WHEREAS Seller and Buyer are parties to the Amended and Restated Receivables Sale Agreement, dated as of May 1, 2018 (as it may be amended and supplemented from time to time the “Agreement”);

 

WHEREAS pursuant to the Agreement, Seller wishes to remove from Buyer all Transferred Receivables owned by Buyer in certain designated Accounts and to cause Buyer to reconvey the Transferred Receivables of such Removed Accounts, whether now existing or hereafter created, from Buyer to Seller; and

 

WHEREAS Buyer is willing to accept such designation and to reconvey the Transferred Receivables in the Removed Accounts subject to the terms and conditions hereof;

 

NOW, THEREFORE, Seller and Buyer hereby agree as follows:

 

1.          Defined Terms. All terms defined in the Agreement and used herein shall have such defined meanings when used herein, unless otherwise defined herein.

 

“Removal Date” means, with respect to the Removed Accounts designated hereby, ___________, ____.

 

“Removal Cut-Off Date” means, with respect to the Removed Accounts ______________, ____.

 

2.          Designation of Removed Accounts. Schedule 1 to this Reassignment, as of the Removal Date, shall supplement Schedule 1 to the Agreement as required by Section 2.1(b) of the Agreement.

 

3.          Conveyance of Transferred Receivables.

 

(a)          Buyer does hereby transfer, assign, set over and otherwise convey to Seller, without representation, warranty or recourse, on and after the Removal Cut-Off Date, all right, title and interest of Buyer in, to and under the Transferred Receivables existing at the close of business on the Removal Cut-Off Date and thereafter created from time to time in the Removed Accounts designated hereby, the Related Security and Collections with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and all Insurance Proceeds related thereto and all proceeds of the foregoing.

 

 Exhibit B - 1 

 

  

(b)          In connection with such transfer, Buyer agrees to execute and deliver to Seller on or prior to the date this Reassignment is delivered, applicable termination statements prepared by Seller with respect to the Transferred Receivables existing at the close of business on the Removal Cut-Off Date and thereafter created from time to time in the Removed Accounts reassigned hereby and the proceeds thereof evidencing the release by Buyer of its interest in the Transferred Receivables in the Removed Accounts, and meeting the requirements of applicable state law, in such manner and such jurisdictions as are necessary to terminate such interest.

 

4.          Representations and Warranties of Seller. Seller hereby represents and warrants to Buyer as of the Removal Date:

 

(a)          Legal Valid and Binding Obligation. This Reassignment Agreement constitutes a legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms, 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 in general and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity); and

 

(b)          List of Removed Accounts. The list of Removed Accounts attached hereto, is an accurate and complete listing in all material respects of all the Accounts as of the Removal Cut-Off Date.

 

5.          Amendment of the Agreement. The Agreement is hereby amended to provide that all references therein to “this Agreement” and “herein” shall be deemed from and after the Removal Date to be a dual reference to the Agreement as supplemented by this Reassignment. Except as expressly amended hereby, all of the representations, warranties, terms and covenants and conditions of the Agreement shall remain unamended and shall continue to be and shall remain in full force and effect in accordance with its terms.

 

6.          Counterparts. This Reassignment 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 shall constitute one and the same instrument.

 

7.          GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

 Exhibit B - 2 

 

 

IN WITNESS WHEREOF, the undersigned have caused this Reassignment to be duly executed and delivered by their respective duly authorized officers on the day and year first above written.

 

  SYNCHRONY BANK, Seller
   
  By:  
  Name:  
  Title:  
   
 

SYNCHRONY CARD FUNDING, LLC,

Buyer

   
  By:  
  Name:  
  Title:  

 

 Exhibit B - 3 

 

 

Schedule 1
to Reassignment Agreement

 

REMOVED ACCOUNTS

  

 Exhibit B - 4 

 

Document Metadata

Filed: May 4th, 2018