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CERTIFICATE PURCHASE AGREEMENT
(Series 1997-1)
by and among
▇▇▇▇▇▇▇▇'▇ CREDIT CORPORATION,
▇▇▇▇▇▇▇▇'▇, INC.,
ENTERPRISE FUNDING CORPORATION,
RECEIVABLES CAPITAL CORPORATION,
NATIONSBANK, N.A.,
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
Dated as of August 21, 1997
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. . . . . . . . . . . . . . . . 2
SECTION 1.2. Other Terms. . . . . . . . . . . . . . . . 13
SECTION 1.3. Computation of Time Periods . . . . . . . 13
ARTICLE II
PURCHASE OF SENIOR CERTIFICATES
SECTION 2.1. Purchase. . . . . . . . . . . . . . . . . 14
SECTION 2.2. Increase of Senior Class Investor Amount. . 14
SECTION 2.3. Fees . . . . . . . . . . . . . . . . . . . 17
SECTION 2.4. Sharing of Payments, Etc.. . . . . . . . . 17
SECTION 2.5. Right of Setoff. . . . . . . . . . . . . . 18
SECTION 2.6. Interest Rate; Eurodollar Rate Protection;
Illegality . . . . . . . . . . . . . . . . 18
SECTION 2.7. Notice of Reinvestment Termination Date . . 23
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.1. Representations and Warranties of the
Transferor . . . . . . . . . . . . . . . . . 24
SECTION 3.2. Representations and Warranties of the
Servicer. . . . . . . . . . . . . . . . . . 29
SECTION 3.3. Covenants of the Transferor . . . . . . . . 32
SECTION 3.4. Covenants of the Servicer . . . . . . . . . 43
SECTION 3.5. Tax Treatment. . . . . . . . . . . . . . . . 44
SECTION 3.6. Conditions Precedent . . . . . . . . . . . . 44
SECTION 3.7. Quarterly Certificate. . . . . . . . . . . . 47
SECTION 3.8. Periodic Notices and Reports . . . . . . . . 48
ARTICLE IV
INDEMNIFICATION; EXPENSES; RELATED MATTERS
SECTION 4.1. Indemnities by the Transferor. . . . . . . . 49
SECTION 4.2. Indemnity for Taxes, Reserves and Expenses . 52
SECTION 4.3. Taxes. . . . . . . . . . . . . . . . . . . . 55
SECTION 4.4. Other Costs, Expenses and Related Matters. . 57
SECTION 4.5. Indemnification by Servicer . . . . . . . . 57
ARTICLE V
THE AGENT; BANK COMMITMENT; SENIOR CLASS AGENTS
SECTION 5.1. Authorization and Action of Agent. . . . . . 59
SECTION 5.2. Agent's Reliance, Etc. . . . . . . . . . . . 60
SECTION 5.3. Credit Decision. . . . . . . . . . . . . . . 61
SECTION 5.4. Indemnification of the Agent . . . . . . . . 62
SECTION 5.5. Successor Agent. . . . . . . . . . . . . . . 62
SECTION 5.6. Payments by the Agent. . . . . . . . . . . . 63
SECTION 5.7. Bank Commitment; Assignment to Bank Investors.64
SECTION 5.8. Authorization and Action of Senior Class Agent69
SECTION 5.9. Senior Class Agents' Reliance, Etc. . . . . . 71
SECTION 5.10. Credit Decision. . . . . . . . . . . . . . . 72
SECTION 5.11. Indemnification of the Senior Class Agent . . 72
SECTION 5.12. Successor Senior Class Agent . . . . . . . . .73
SECTION 5.13. Payments by the Senior Class Agents. . . . . .74
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of Agreement. . . . . . . . . . . . . . .75
SECTION 6.2. Waivers; Amendments. . . . . . . . . . . . . .75
SECTION 6.3. Notices, Etc.. . . . . . . . . . . . . . . . .76
SECTION 6.4. Governing Law; Submission to Jurisdiction;
Integration . . . . . . . . . . . . . . .76
SECTION 6.5. Severability . . . . . . . . . . . . . . . . .77
SECTION 6.6. Counterparts . . . . . . . . . . . . . . . . .77
SECTION 6.7. Successors and Assigns . . . . . . . . . . . .78
SECTION 6.8. Confidentiality. . . . . . . . . . . . . . . .78
SECTION 6.9. No Bankruptcy Petition Against the Senior
Class Conduits. . . . . . . . . . . . . .79
SECTION 6.10. No Recourse. . . . . . . . . . . . . . . . . .79
SECTION 6.11. Setoff . . . . . . . . . . . . . . . . . . . .80
SECTION 6.12. Further Assurances . . . . . . . . . . . . . .80
EXHIBITS
EXHIBIT A Form of Additional Investment Certificate
EXHIBIT B Form of Assignment and Assumption Agreement
EXHIBIT C Form of Secretary's Certificate
EXHIBIT D Form of Opinion
EXHIBIT E Form of Quarterly Certificate
EXHIBIT F Defined Terms in Financial Covenants
EXHIBIT G Proceedings
CERTIFICATE PURCHASE AGREEMENT (this "Agreement"), dated
as of August 21, 1997, by and among ▇▇▇▇▇▇▇▇'▇ CREDIT
CORPORATION, a Nevada corporation (together with its suc-
cessors and permitted assigns, the "Transferor"),
▇▇▇▇▇▇▇▇'▇, INC., a Tennessee corporation, as servicer
(in such capacity, the "Servicer"), ENTERPRISE FUNDING
CORPORATION, a Delaware corporation (together with its
successors and permitted assigns, "EFC"), RECEIVABLES
CAPITAL CORPORATION, a Delaware corporation (together
with its successors and permitted assigns, "RCC", and
collectively with EFC, the "Purchasers"), NATIONSBANK,
N.A., a national banking association ("NationsBank"), as
agent for the Senior Class Conduits and the Bank Inves-
tors (in such capacity, the "Agent"), as a Senior Class
Agent and individually as a Bank Investor, and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a nation-
al banking association ("Bank of America"), as a Senior
Class Agent and individually as a Bank Investor.
W I T N E S S E T H:
WHEREAS, the Transferor may desire to convey, transfer
and assign, from time to time, to each of the Senior
Class Conduits, one or more certificates issued by the
▇▇▇▇▇▇▇▇'▇ Credit Card Master Trust pursuant to a master
pooling and servicing agreement (the "Master Pooling and
Servicing Agreement") dated as of August 21, 1997 among
the Transferor, the Servicer and Norwest Bank Minnesota,
National Association, a national banking association, as
trustee (the "Trustee") as supplemented by a Series 1997-1
Supplement dated as of the date hereof (the "Series
Supplement") among the Transferor, the Servicer and the
Trustee;
WHEREAS, the Senior Class Conduits may desire to, and the
Bank Investors, if requested, shall, accept such convey-
ance, transfer and assignment of such certificates on the
te rms and conditions set forth herein; and
WHEREAS, the Servicer has joined in this Agreement to
make certain representations, warranties, covenants and
agreements for the benefit of the Agent, the Senior Class
Agents, the Senior Class Conduits and the Bank Investors.
NOW THEREFORE, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1 Definitions. All capitalized terms used
herein shall have the meanings herein specified or as
specified in the Master Pooling and Servicing Agreement
or the Series Supplement, and shall include in the singu-
lar number the plural and in the plural number the singu-
lar:
"Act" shall mean the Securities Act of 1933, as amended.
"Additional Investor Amount" shall have the meaning set
forth in Section 2.2(a) hereof.
"Additional Investment Certificate" shall mean a
certificate of the Transferor substantially in the form
of Exhibit A hereto.
"Adjusted LIBOR Rate" means, with respect to any period
during which the return to any Bank Investor or a related
Program Support Provider is to be calculated by reference
to the London interbank offered rate, a rate which is
0.875% in excess of a rate per annum equal to the sum
(rounded upwards, if necessary, to the next higher 1/100
of 1%) of (A) the rate obtained by dividing (i) the
applicable LIBOR Rate by (ii) a percentage equal to 100%
minus the reserve percentage, if any, used for determin-
ing the maximum reserve requirement as specified in Regu-
lation D (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) that
is applicable to the Agent during such period in respect
of eurocurrency or eurodollar funding, lending or liabil-
ities (or, if more than one percentage shall be so appli-
cable, the daily average of such percentage for those
days in such period during which any such percentage
shall be applicable) plus (B) the then daily net annual
assessment rate (rounded upwards, if necessary, to the
nearest 1/100 of 1%) as estimated by the Agent for deter-
mining the current annual assessment, if any, payable by
the Agent to the Federal Deposit Insurance Corporation in
respect of eurocurrency or eurodollar funding, lending or
liabilities.
"Affected Assets" shall mean, collectively, the Senior
Class Certificates and the Trust Property.
"Agent" shall mean NationsBank, in its capacity as agent
for the Senior Class Conduits and the Bank Investors, and
any successor agent appointed pursuant to Article V
hereof.
"Agreement" shall mean this Certificate Purchase Agree-
ment, as it may from time to time be amended, supplement-
ed or otherwise modified in accordance with the terms
hereof.
"Assignment" shall mean, with respect to each Senior
Class, an assignment pursuant to an Assignment and As-
sumption Agreement by which a Senior Class Conduit or a
Bank Investor may assign its interests in the Senior
Class Certificates, the Senior Class Certificate Princi-
pal Balance and the Trust Property pursuant to Section
5.7 hereof.
"Assignment Amount" shall mean, with respect to each Bank
Investor at any time, an amount equal to the lesser of
(a) such Bank Investor's Commitment and (b) the sum of
(i) the Bank Pro Rata Share for such Bank Investor of the
Senior Class Certificate Principal Balance for the relat-
ed Senior Class held by the related Senior Class Conduit
at such time and (ii) to the extent not paid by the
Transferor as provided in subsection 5.7(d) hereof, an
amount equal to all Carrying Costs to accrue with respect
to each Senior Class through the maturity of all out-
standing Related Commercial Paper.
"Assignment and Assumption Agreement" shall mean an
Assignment and Assumption Agreement substantially in the
form of Exhibit B hereto.
"Bank Base Rate" means, a rate per annum equal to the
greater of (i) the prime rate of interest announced
publicly by the Agent from time to time, changing when
and as said prime rate changes (such rate not necessarily
being the lowest or best rate charged by the Agent) and
(ii) the sum of (a) 1.50% and (b) the rate equal to the
weighted average of the rates on overnight
Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average
of the quotations for such day for such transactions
received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Bank Investors" shall mean, (i) with respect to the
Senior Class of which EFC is a member, NationsBank and
its successors and assigns, (ii) with respect to the
Senior Class of which RCC is a member, Bank of America
and its successors and assigns, and (iii) with respect to
any other Senior Class, the financial institutions speci-
fied as such in any supplement hereto and their respec-
tive successors and permitted assigns.
"Bank of America" shall mean Bank of America National
Trust and Savings Association, a national banking
association, together with its successors and permitted
as signs.
"Bank Pro Rata Share" shall mean, for each Bank Investor,
the percentage equivalent of a fraction, the numerator of
which is the Commitment of such Bank Investor and the
denominator of which is the sum of the Commitments of all
Bank Investors in the Senior Class of which such Bank
Investor is a member.
"Benefit Plan" shall mean any employee benefit plan as
defined in Section 3(3) of ERISA which the Transferor or
any Eligible Originator maintains.
"Business Taxes" shall mean any Federal, state or local
income taxes or taxes measured by income, property taxes,
excise taxes, franchise taxes or other similar taxes.
"Capitalization" shall have the meaning set forth in
Exhibit F hereto.
"Collateral Agent" shall mean, (i) with respect to EFC,
any Person acting as collateral agent for certain secured
parties under the EFC commercial paper program and (ii)
with respect to any other Senior Class Conduit, the
collateral agent specified in any supplement hereto for
such Senior Class Conduit, if any.
"Commercial Paper" shall mean the promissory notes of a
Senior Class Conduit issued by such Senior Class Conduit
in the commercial paper market.
"Commitment" shall mean, for each Bank Investor, the
commitment of such Bank Investor to make acquisitions
from the Transferor or the related Senior Class Conduit
in accordance herewith in an amount not to exceed (i) for
NationsBank and Bank of America, the dollar amount set
forth opposite such Bank Investor's signature on the
signature pages hereto under the heading "Commitment",
minus the dollar amount of any Commitment or portion
thereof assigned pursuant an Assignment and Assumption
Agreement in accordance with Section 5.7 hereof prior to
the time of determination, plus the dollar amount of any
increase to such Bank Investor's Commitment consented to
by such Bank Investor prior to the time of determination,
(ii) in the case of a Bank Investor for any other Senior
Class, the amount set forth in any supplement hereto for
the related Senior Class, minus the dollar amount of any
Commitment or portion thereof assigned pursuant an As-
signment and Assumption Agreement in accordance with Sec-
tion 5.7 hereof prior to the time of determination, plus
the dollar amount of any increase to such Bank Investor's
Commitment consented to by such Bank Investor prior to
the time of determination, and (iii) in the case of any
permitted assignee of a Bank Investor pursuant to Section
5.7 hereof, the amount set forth in the Assignment and
Assumption Agreement pursuant to which such assignee ac-
quired its interest in the Senior Class Certificates, the
Senior Class Investor Amount and the Trust Property,
minus the dollar amount of any Commitment or portion
thereof assigned pursuant an Assignment and Assumption
Agreement in accordance with Section 5.7 hereof prior to
the time of determination, plus the dollar amount of any
increase to such Bank Investor's Commitment consented to
by such Bank Investor prior to the time of determination.
"Commitment Termination Date" shall mean August 20, 1998,
or such later date to which the Commitment Termination
Date may be extended by the Transferor, the Senior Class
Agents and the Bank Investors not later than 30 days
prior to the then current Commitment Termination Date.
"Consolidated EBITDA" shall have the meaning set forth in
Exhibit F hereto.
"Consolidated Fixed Charge Coverage Ratio" shall have the
meaning set forth in Exhibit F hereto.
"Consolidated Funded Senior Indebtedness" shall have the
meaning set forth in Exhibit F hereto.
"Consolidated Total Funded Indebtedness" shall have the
meaning set forth in Exhibit F hereto.
"Defined Benefit Plan" shall mean a "defined benefit
plan" as defined in Section 3(35) of ERISA which is or
was at any time during the current year or the immedi-
ately preceding five years contributed to by the Trans-
feror, any Eligible Originator or any ERISA Affiliate of
the Transferor or any Eligible Originator on behalf of
its employees.
"Early Collection Fee" means, for any funding period
(such funding period to be determined without regard to
the last sentence in Section 2.6(a) hereof) during which
the portion of the Senior Class Certificate Principal
Balance that was allocated to such funding period is
reduced for any reason whatsoever, the excess, if any, of
(i) the additional Carrying Costs that would have accrued
during such funding period if such reductions had not
occurred, minus (ii) the income, if any, received by the
recipient of such reductions from investing the proceeds
of such reductions.
"EFC" shall mean Enterprise Funding Corporation, a
Delaware corporation, together with its successors and
permitted assigns.
"Eligible Receivables" shall mean (solely for
the purposes of any Program Support Agreement), as of any
day, all Principal Receivables other than Ineligible
Receivables.
"ERISA" shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to time,
and the regulations promulgated and the rulings issued
thereunder.
"ERISA Affiliate" shall mean, with respect to
any Person, (i) any corporation which is a member of the
same controlled group of corporations (within the meaning
of Section 414(b) of the Internal Revenue Code) as such
Person; (ii) a trade or business (whether or not incorpo-
rated) under common control (within the meaning of Section
414(c) of the Internal Revenue Code) with such Person; or
(iii) for purposes of Code Section 412, a member of the
same affiliated service group (within the meaning of Sec-
tion 414(m) of the Internal Revenue Code) as such Person,
any corporation described in clause (i) above or any trade
or business described in clause (ii) above.
"Excluded Taxes" shall have the meaning set
forth in Section 4.3 hereof.
"Fee Letter" shall mean, collectively, the
letter agreement or agreements, dated the date hereof, (i)
among the Transferor and the Senior Class Conduits and (ii)
among the Transferor, the Agent and the Senior Class Agents
on behalf of the Bank Investors, in each case, with respect
to the fees to be paid by the Transferor hereunder, as
amended, modified or supplemented from time to time.
"GAAP" shall mean generally accepted account-
ing principles set forth in the opinions and pronouncements
of the Accounting Principles Board of the American Insti-
tute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board
or in such other statements by such accounting profession,
which are in effect as of the date of this Agreement.
"Guaranty" shall mean, with respect to any
Person any agreement by which such Person assumes, guaran-
tees, endorses, contingently agrees to purchase or provide
funds for the payment of, or otherwise becomes liable upon,
the obligation of any other Person, or agrees to maintain
the net worth or working capital or other financial
condition of any other Person or otherwise assures any
other creditor of such other Person against loss, includ-
ing, without limitation, any comfort letter, operating
agreement or take-or-pay contract and shall include,
without limitation, the contingent liability of such Person
in connection with any application for a letter of credit.
"Indemnified Amounts" shall have the meaning
set forth in Section 4.1 hereof.
"Indemnified Parties" shall have the meaning
set forth in Section 4.1 hereof.
"Law" shall mean applicable any law (including
common law), constitution, statute, treaty, regulation,
rule, ordinance, order, injunction, writ, decree or award
of any Official Body.
"LIBOR Rate" means, with respect to any
funding period, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on
Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in U.S. dollars at ap-
proximately 11:00 a.m. (London time) two London Business
Days prior to the first day of such funding period for a
term of one month or three months, as determined in accor-
dance with Section 2.6 hereof. If for any reason such rate
is not available, the term "LIBOR Rate" shall mean, for any
funding period, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for
deposits in dollars at approximately 11:00 a.m. (London
time) two London Business Days prior to the first day of
such funding period for a term of one month or three
months, as applicable; provided, however, if more than one
rate is specified on the Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such
rates. If for any reason neither of such rates is avail-
able, the term "LIBOR Rate" shall mean, for any funding
period, the rate at which deposits in U.S. dollars are
offered to the Agent in the London interbank market at ap-
proximately 11:00 a.m. (London time) two London Business
Days prior to the first day of such funding period for a
term of one month or three months, as applicable.
"London Business Day" shall mean, with respect
to the determination of the LIBOR Rate, any Business Day
other than a Business Day on which banking institutions in
London, England trading in dollar deposits in the London
interbank market are authorized or obligated by law or
executive order to be closed.
"Majority Investors" shall mean at any time,
with respect to a Senior Class, Persons consisting of the
Bank Investors for such Senior Class and assignees thereof
which hold commitments in respect of the Senior Class
Facility Limit aggregating in excess of 51% of the applica-
ble Senior Class Facility Limit as of such date.
"Master Pooling and Servicing Agreement" shall
have the meaning specified in the recitals hereto.
"Material Adverse Effect" shall mean any event
or condition which would have a material adverse effect on
(i) the collectibility of the Receivables considered in the
aggregate, (ii) the condition (financial or otherwise),
businesses or the property of the Transferor or ▇▇▇▇▇▇▇▇'▇
and its subsidiaries taken as a whole, (iii) the ability of
the Transferor or any Eligible Originator to perform its
respective obligations under the Transaction Documents to
which it is a party and (iv) the interests of the Agent,
any Senior Class Agents, any Senior Class Conduit or any
Bank Investor under the Transaction Documents.
"▇▇▇▇▇'▇" shall mean ▇▇▇▇▇'▇, Inc., a Missis-
sippi corporation.
"Merrill" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ Money Mar-
kets Inc., a Delaware corporation.
"Multiemployer Plan" shall mean a
"multiemployer plan" as defined in Section 4001(a)(3) of
ERISA which is or was at any time during the current year
or the immediately preceding five years contributed to by
the Transferor, any Eligible Originator or any ERISA Affil-
iate of the Transferor or any Eligible Originator on behalf
of its employees.
"NationsBank" shall mean NationsBank, N.A., a
national banking association, together with its successors
and permitted assigns.
"Net Asset Test" shall mean, with respect to
any date of determination, in connection with an assignment
of the Senior Class Certificates held by a Senior Class
Conduit to the related Bank Investors, that the related
Subordinate Class Investor Amount as of the last day of the
prior Monthly Period is equal to or greater than zero.
"Net Investment" means (solely for the
purposes of this Agreement and any Program Support Agree-
ment), as of any date, the Senior Class Certificate
Principal Balance with respect to the Senior Class of which
EFC is a member.
"Official Body" shall mean any government or
political subdivision or any agency, authority, bureau,
central bank, commission, department or instrumentality of
any such government or political subdivision, or any court,
tribunal, grand jury or arbitrator, in each case whether
foreign or domestic.
"Other Transferor" shall mean any Person other
than the Transferor that has entered into a receivables
purchase agreement, transfer and administration agreement
or other similar agreement with a Senior Class Conduit.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation or any other entity succeeding to the functions
currently performed by the Pension Benefit Guaranty
Corporation.
"Potential Pay Out Event" shall mean an event
which, but for the lapse of time or the giving of notice,
or both, would constitute a Pay Out Event.
"Program Support Agreement" shall mean an
agreement between a Senior Class Conduit and a Program
Support Provider evidencing the obligation of such Program
Support Provider to provide liquidity support, credit
enhancement or asset purchase facilities for or in respect
of any assets or liabilities of any Senior Class Conduit in
connection with the issuance by such Senior Class Conduit
of Commercial Paper.
"Program Support Provider" shall mean the
Person or Persons who will provide liquidity or program
support to a Senior Class Conduit in connection with the
issuance by such Senior Class Conduit of Commercial Paper.
"Purchasers" shall have the meaning specified
in the preamble to this Agreement.
"RCC" shall mean Receivables Capital Corpora-
tion, a Delaware corporation, together with its successors
and permitted assigns.
"Recipient" shall have the meaning set forth
in Section 2.4 hereof.
"Records" shall mean all Account Agreements
and other documents, books, records and other information
(including, without limitation, computer programs, tapes,
discs, punch cards, data processing software and related
property and rights) maintained with respect to Receivables
and the related Obligors.
"Reinvestment Termination Date" shall mean the
Business Day on which the Agent or a Senior Class Agent
delivers to the Transferor (and, in the case of notice from
a Senior Class Agent, to the Agent) written notice that a
Senior Class Conduit has elected not to maintain its inter-
est in the related Senior Class Investor Amount; unless, on
such Business Day, the related Bank Investors accept an as-
signment of the Senior Class Certificate Principal Balance
with respect to the related Senior Class. Any such notice
shall be effective on the Business Day given if such notice
is given by 11:00 a.m. (New York time) on such Business Day
and shall be effective on the immediately succeeding
Business Day if such notice is given after 11:00 a.m. (New
York time) on such Business Day.
"Related Commercial Paper" shall mean (i) with
respect to EFC, Commercial Paper issued by EFC all or a
portion of the proceeds of which were used to finance the
acquisition of an interest in the Senior Class Certifi-
▇▇▇▇▇, (ii) with respect to RCC, Commercial Paper that is
allocated, in whole or in part, by RCC or its administrator
to fund or maintain the interest of RCC in the Senior Class
Certificates, and (iii) with respect to any other Senior
Class Conduit, the Commercial Paper specified as "Related
Commercial Paper" in any supplement hereto.
"Reportable Event" shall mean any of the
events set forth in Section 4043(b) of ERISA, other than
those events for which notice to the PBGC is waived under
applicable PBGC regulations.
"Section 4.2 Costs" shall have the meaning set
forth in Section 4.2 hereof.
"Senior Class" shall mean each group of Senior
Certificateholders consisting of a multi-seller commercial
paper conduit, the related Bank Investors and their
respective assigns and participants.
"Senior Class Agent" shall mean, (i) with
respect to the Senior Class of which EFC is a member,
NationsBank, (ii) with respect to the Senior Class of which
RCC is a member, Bank of America, and (iii) with respect to
any other Senior Class, the financial institution or other
Person identified in any supplement hereto for such Senior
Class.
"Senior Class Conduit" shall mean, with
respect to any Senior Class, the Certificateholder in such
Senior Class which is a multi-seller commercial paper con-
duit (and if more than one Certificateholder in such Senior
Class is a multi-seller commercial paper conduit, "Senior
Class Conduit" shall mean such Certificateholders collec-
tively).
"Senior Class Facility Limit" shall mean, (i)
with respect to the Senior Class of which EFC is a member,
$75,000,000, and (ii) with respect to the Senior Class of
which RCC is a member, $50,000,000, and (iii) with respect
to any other Class, the amount indicated in any supplement
hereto for such Senior Class; provided that in each case
such amount may not at any time exceed the aggregate
Commitments for the related Bank Investors.
"Series Supplement" shall have the meaning
specified in the recitals hereto.
"Subordinated Note" shall have the meaning
specified in the Receivables Purchase Agreements.
"Taxes" shall have the meaning set forth in
Section 4.3 hereof.
"Telerate Page 3750" shall mean the British
Bankers Association Libor Rates (determined at 11:00 a.m.
London time) that are published by Dow ▇▇▇▇▇ Telerate, Inc.
"Termination Date" shall mean the earliest of
(i) the Business Day designated by the Transferor to the
Agent and each Senior Class Agent as the termination date
at any time following 60 days' written notice to the Agent
and each Senior Class Agent, (ii) the date on which a Pay
Out Event is declared or automatically occurs pursuant to
the Master Pooling and Servicing Agreement or the Series
Supplement, (iii) the Stated Series Termination Date, (iv)
two Business Days prior to the Commitment Termination Date,
(v) the Reinvestment Termination Date and (vi) the date on
which a Program Support Agreement shall have terminated.
"Termination Event" shall, solely for the
purposes of this Agreement and any Program Support Agree-
ment, have the same meaning as "Pay Out Event" under the
Master Pooling and Servicing Agreement and the Series
Supplement.
"Transaction Costs" shall have the meaning set
forth in Section 4.4 hereof.
"Transaction Documents" shall mean, collec-
tively, this Agreement, each Receivables Purchase Agree-
ment, the Master Pooling and Servicing Agreement, the
Series Supplement, the Fee Letter, the Certificates and all
of the other instruments, documents and other agreements
executed and delivered by the Transferor or any Eligible
Originator in connection with any of the foregoing in
connection with Series 1997-1, in each case, as the same
may be amended, restated, supplemented or otherwise
modified from time to time.
"Transferor" shall mean ▇▇▇▇▇▇▇▇'▇ Credit
Corporation, a Nevada corporation, together with its suc-
cessors and permitted assigns.
SECTION 2 Other Terms. All accounting terms
not specifically defined herein shall be construed in
accordance with GAAP. The symbol "$" shall mean the lawful
currency of the United States of America. All terms used
in Article 9 of the UCC in the State of New York, and not
specifically defined herein, are used herein as defined in
such Article 9.
SECTION 3 Computation of Time Periods.
Unless otherwise stated in this Agreement, in the compu-
tation of a period of time from a specified date to a later
specified date, the word "from" means "from and including",
the words "to" and "until" each means "to but excluding",
and the word "within" means "from and excluding a specified
date and to and including a later specified date". The
definitions of all terms defined herein shall include the
singular as well as the plural form of such terms and the
masculine of such terms as well as the feminine and neuter
genders of such terms.
ARTICLE II
PURCHASE OF SENIOR CERTIFICATES
SECTION 1 Purchase. Upon the terms and
subject to the conditions set forth herein, (x) the
Transferor may, at its option, convey, transfer and assign
to the Purchasers or the Bank Investors, as applicable, and
(y) the Purchasers may, at their respective option, or the
Bank Investors shall, if the related Purchaser determines
not to so accept and if so requested, accept such convey-
ance, transfer and assignment from the Transferor of, with-
out recourse except as provided herein and in the other
Transaction Documents, on the Closing Date, Senior Class
Certificates in the aggregate face amount of $125,000,000.
Such Senior Class Certificates shall accrue interest as de-
scribed in the Master Pooling and Servicing Agreement, as
supplemented by the Series Supplement, from and including
the Closing Date. Such Senior Class Certificates, if pur-
chased by (i) EFC or the related Bank Investors, shall be
delivered to and be registered in the name of "NationsBank,
N.A., as agent for the members of the Senior Class of which
Enterprise Funding Corporation and NationsBank, N.A. are
members" and shall be in the face amount of $75,000,000 and
(ii) RCC or the related Bank Investors, shall be delivered
to and be registered in the name of "Bank of America Na-
tional Trust and Savings Association, as agent for the mem-
bers of the Senior Class of which Receivables Capital
Corporation and Bank of America National Trust and Savings
Association are members" and shall be in the face amount of
$50,000,000.
SECTION 2 Increase of Senior Class Investor
Amount.
(a) Upon the terms and subject to the
conditions set forth herein and provided that neither the
Commitment Termination Date nor the Termination Date
(excluding, in the case of the Bank Investors, a "Termina-
tion Date" occurring as a result of clause (iv) or (v) of
the definition of "Termination Date") shall have occurred,
(x) the Transferor may, at its option, on any Distribution
Date during the Revolving Period, after delivery to the
Agent and each Senior Class Agent of an Additional Invest-
ment Certificate (to be received by the Agent and each
Senior Class Agent not later than 12 noon, New York City
time, on the second Business Day prior to the Distribution
Date on which the proposed increase in the Senior Class In-
vestor Amount is to occur), convey, transfer and assign to
the Senior Class Conduits or the Bank Investors, as
applicable, and (y) the Senior Class Conduits may, at their
respective option, or the Bank Investors shall, if the
related Senior Class Conduit has assigned its interest in
the Senior Class Certificate Principal Balance in whole to
the related Bank Investors and if so requested under
subsection 2.2(b), accept such conveyance, transfer and as-
signment from the Transferor of, without recourse except as
provided herein and in the other Transaction Documents, on
the following Distribution Date, an additional undivided
interest in the Trust in the amount specified in such
Additional Investment Certificate (each, an "Additional In-
vestor Amount"); provided that (i) such Additional Investor
Amount shall not cause the Senior Class Certificate Balance
for any Class plus the Interest Component of all Related
Commercial Paper issued by the related Senior Class Conduit
and then outstanding, if any, to exceed the Senior Class
Facility Limit for such Class, (ii) after giving effect to
such Additional Investor Amount, the Transferor Amount as
of the Determination Date immediately preceding such
Distribution Date and as reported in such Additional
Investment Certificate, shall not be less than the Minimum
Transferor Amount, (iii) after giving effect to such
Additional Investor Amount, the Subordinate Class Investor
Amount, as of the Business Day immediately preceding the
date of the Additional Investment Certificate and as
reported in such Additional Investment Certificate, shall
not be less than the Minimum Enhancement Amount, (iv) no
Potential Pay Out Event or Pay Out Event shall have oc-
curred and be continuing and (v) all of the representations
and warranties of the Transferor and the Servicer made
herein shall be true and correct as of such date (except to
the extent any such representation or warranty expressly
relates to an earlier date). The Senior Class Conduits or
the Bank Investors, as the case may be, shall acquire such
additional interest in consideration of the Senior Class
Conduits' or the Bank Investors', as the case may be, pay-
ment to the Transferor in immediately available funds of
the Additional Investor Amount for the related Senior
Class, and the Senior Class Investor Amount for each Senior
Class shall be increased to be equal to the Senior Class
Investor Amount immediately prior to such acquisition plus
the Additional Investor Amount for such Senior Class so ac-
quired. Each Additional Investor Amount shall be an amount
that results in the acquisition by each Senior Class of an
Additional Investor Amount of not less than $500,000 and
integral multiples of $100,000 in excess thereof. Each
acquisition of an Additional Investor Amount hereunder by
a Senior Class shall be made ratably in accordance with
their respective Senior Class Facility Limits. Each acqui-
sition of an Additional Investor Amount hereunder by the
Bank Investors of a Senior Class (in the aggregate) shall
be made ratably in accordance with the respective Commit-
ments of such Bank Investors.
(b) If a Senior Class Conduit elects not to
acquire any such Additional Investor Amount, the Transferor
(i) may withdraw its request that the Senior Class Conduits
acquire such Additional Investor Amount or (ii) may request
the related Bank Investors to accept an assignment of the
Additional Investor Amount for the related Senior Class
Conduit, in which case, if the Net Asset Test applicable to
the related Senior Class is met, the Senior Class Certifi-
cate Principal Balance for such Senior Class Conduit, prior
to such request to acquire such Additional Investor Amount,
shall be assigned to the related Bank Investors; provided,
however, that if the Net Asset Test applicable to the
related Senior Class is not met, such assignments shall not
be made and the Transferor shall be deemed to have with-
drawn its request that the Bank Investors acquire such
Additional Investor Amounts. The Transferor may not re-
quest and no Bank Investor shall acquire an Additional In-
vestor Amount on or after the occurrence and during the
continuation of a Potential Pay Out Event or a Pay Out
Event.
(c) In the event the Transferor requests
the Senior Class Conduits or any or all Bank Investors to
make any such acquisition of additional interests in the
Trust, the Transferor shall indemnify each Senior Class
Conduit and each such Bank Investor against any loss or ex-
pense incurred by any Senior Class Conduit or any such Bank
Investor, either directly or indirectly (including, in the
case of the Senior Class Conduits, through a Program
Support Agreement), as a result of any failure by the
Transferor to complete any such acquisition of an Addi-
tional Investor Amount (other than as a result of an
election by such Senior Class Conduit not to acquire such
Additional Investor Amount) including, without limitation,
any loss or reasonable out-of-pocket expenses incurred by
the Senior Class Conduits or any such Bank Investor, either
directly or indirectly (including, in the case of the
Senior Class Conduits, pursuant to a Program Support Agree-
ment), by reason of the liquidation or reemployment of
funds acquired by the Senior Class Conduits (or any Program
Support Provider) or any such Bank Investor (including,
without limitation, funds obtained by issuing commercial
paper or promissory notes or obtaining deposits as loans
from third parties) for the Senior Class Conduits to fund
such acquisition of an Additional Investor Amount.
(d) Each acquisition of an Additional
Investor Amount shall be subject to the further condition
precedent that, prior to the date of such acquisition, the
Transferor shall have delivered to the Agent and each
Senior Class Agent on the date that the Additional In-
vestment Certificate is delivered under subsection 2.2(a),
a certification in form and substance satisfactory to the
Agent and each Senior Class Agent, dated the date that such
certificate is delivered, that the conditions specified in
clauses (i), (ii), (iii), (iv), and (v) of subsection
2.2(a) have been satisfied (it being understood that such
certification may be included on the face of the Additional
Investment Certificate).
SECTION 3 Fees. The Transferor shall pay
such fees as are set forth in the Fee Letter at the times
and in the amounts set forth therein.
SECTION 4 Sharing of Payments, Etc. If any
Senior Class Conduit or any Bank Investor (for purposes of
this Section only, a "Recipient") shall obtain any payment
(whether voluntary, involuntary, through the exercise of
any right of setoff, or otherwise) on account of Senior
Class Certificates owned by it (other than pursuant to
Section 2.2(c) or Section 2.3 or Article IV hereof) in
excess of its ratable share of payments on account of
Senior Class Certificates obtained by the Senior Class
Conduits and/or the Bank Investors entitled thereto, such
Recipient shall forthwith purchase from the Senior Class
Conduits and/or the Bank Investors entitled to a share of
such amount participations in the Senior Class Certificates
owned by such Persons as shall be necessary to cause such
Recipient to share the excess payment ratably with each
such other Person entitled thereto; provided, however, that
if all or any portion of such excess payment is thereafter
recovered from such Recipient, such purchase from each such
other Person shall be rescinded and each such other Person
shall repay to the Recipient the purchase price paid by
such Recipient for such participation to the extent of such
recovery, together with an amount equal to such other
Person's ratable share (according to the proportion of (a)
the amount of such other Person's required payment to (b)
the total amount so recovered from the Recipient) of any
interest or other amount paid or payable by the Recipient
in respect of the total amount so recovered.
SECTION 5 Right of Setoff. Without in any
way limiting the provisions of Section 2.4, each of the
Senior Class Conduits and the Bank Investors is hereby
authorized (in addition to any other rights it may have) at
any time after the Termination Date or during the continu-
ance of a Potential Pay Out Event to setoff, appropriate
and apply (without presentment, demand, protest or other
notice which are hereby expressly waived) any deposits and
any other indebtedness held or owing by a Senior Class
Conduit or a Bank Investor to, or for the account of, the
Transferor against all amounts owing by the Transferor to
such Senior Class Conduit or Bank Investor under this
Agreement (even if contingent or unmatured), provided that
no Senior Class Conduit and no Bank Investor shall setoff
against any property of the Transferor which shall have
been pledged to the Trust or in which the Trust shall have
been granted an interest.
SECTION 6 Interest Rate; Eurodollar Rate Pro-
tection; Illegality.
(a) Prior to the Termination Date. At all
times hereafter, but prior to the Termination Date, and not
with respect to any portion of the Senior Class Certificate
Principal Balance held by any Bank Investor, the Transferor
may, subject to the applicable Senior Class Agent's
approval and the limitations described below, request that
the Senior Class Certificate Principal Balance held by a
Senior Class Conduit be allocated among one or more funding
periods, so that the aggregate amounts so allocated with
respect to such Senior Class Conduit at all times shall
equal the Senior Class Certificate Principal Balance held
by such Senior Class Conduit. The Transferor shall give
each Senior Class Agent irrevocable notice by telephone of
the new requested funding period(s) at least two (2) Busi-
ness Days prior to the expiration of any then existing
funding period for purposes of determining the LIBOR Rate
applicable to such funding period; provided, however, that
the applicable Senior Class Conduit or the related Senior
Class Agent may select, in its sole discretion, any such
new funding period if (i) the Transferor fails to provide
such notice on a timely basis or (ii) such Senior Class
Conduit or the related Senior Class Agent determines, in
its sole discretion, that the funding period requested by
the Transferor is unavailable or for any reason commer-
cially undesirable. Each Senior Class Conduit confirms
that it is its intention to fund all or substantially all
of the Senior Class Certificate Principal Balance held by
such Senior Class Conduit by issuing Related Commercial
Paper; provided that such Senior Class Conduit or the
related Senior Class Agent may determine, from time to
time, in its sole discretion, that funding such Senior
Class Certificate Principal Balance by means of Related
Commercial Paper is not possible or is not desirable for
any reason. In the case of any funding period outstanding
upon the Termination Date, such funding period shall end on
such date. In the case of the Senior Class of which EFC or
RCC is a member, if any Program Support Provider acquires
from EFC or RCC an interest in the Senior Class Certificate
Principal Balance held by EFC or RCC, then in the case of
EFC NationsBank and in the case of RCC Bank of America, on
behalf of such Program Support Provider, may exercise the
right of selection granted to EFC or RCC, as applicable, or
its related Senior Class Agent hereby then the initial
funding period applicable to any such interest shall be a
period of not greater than 14 days and shall accrue
Carrying Costs on the basis of the Bank Base Rate and
thereafter, provided that the Termination Date shall not
have occurred, Carrying Costs shall accrue on the basis of
either the Bank Base Rate or the Adjusted LIBOR Rate (with
a funding period of either one month or three months), as
determined by NationsBank or Bank of America, as applica-
ble.
Any portion of the Senior Class Certificate
Principal Balance transferred to the Bank Investors (or any
of them) pursuant to this Agreement prior to the Termina-
tion Date, shall initially bear interest at the Bank Base
Rate for a period of not greater than 14 days. Thereafter,
with respect to such portion of the Senior Class Certifi-
cate Principal Balance and with respect to any other por-
tion of the Senior Class Certificate Principal Balance held
by the Bank Investors (or any of them), provided that the
Termination Date shall not have occurred, the interest rate
applicable thereto shall be, at the Transferor's option,
either the Bank Base Rate or the Adjusted LIBOR Rate for
such period as may be specified by the Transferor. The
Transferor shall give the applicable Senior Class Agent
irrevocable notice by telephone of each requested funding
period (which funding period in the case of the Adjusted
LIBOR Rate shall be a period of either one or three months)
at least two (2) Business Days prior to the expiration of
any then existing funding period; provided, however, that
such Senior Class Agent may select, in its sole discretion,
the term of any such subsequent funding period and the rate
applicable thereto if (i) the Transferor fails to provide
such notice on a timely basis or (ii) such Senior Class
Agent determines, in its sole discretion, that the request-
ed funding period is unavailable or for any reason commer-
cially undesirable. Each Senior Class Agent confirms that
it is its intention to fund all or substantially all of the
Senior Class Certificate Principal Balance funded by the
related Bank Investors at the Adjusted LIBOR Rate; provided
that such Senior Class Agent may determine, from time to
time, in its sole discretion, that funding the related
Senior Class Certificate Principal Balance by such means is
not possible or is not desirable for any reason. In the
case of any funding period outstanding upon the occurrence
of the Termination Date, such funding period shall end on
the date of such occurrence.
(b) After the Termination Date. At all
times on and after the Termination Date, the Senior Class
Certificate Principal Balance (or applicable portion
thereof) shall bear interest at the Bank Base Rate plus
2.0%.
(c) Eurodollar Rate Protection. If a
Senior Class Agent is unable to obtain on a timely basis
the information necessary to determine the LIBOR Rate for
any proposed funding period, then
(i) the Senior Class Agent shall forthwith
notify the Bank Investors and the Transferor that the
Adjusted LIBOR Rate cannot be determined for such
funding period, and
(ii) while such circumstances exist, none
of the Senior Class Agents, the Bank Investors or the
Agent shall allocate the Senior Class Certificate
Principal Balance purchased during such period or
reallocate the Senior Class Certificate Principal Bal-
ance allocated to any then existing funding period
ending during such period, to a funding period which
accrues Carrying Costs on the basis of the Adjusted
LIBOR Rate.
If, with respect to any outstanding funding
period which accrues Carrying Costs on the basis of the
Adjusted LIBOR Rate, the Senior Class Conduits or any of
the Bank Investors owning any interest in Senior Class
Certificates notifies the Senior Class Agent that it or any
Program Support Provider is unable to obtain matching
deposits in the London interbank market to fund its
purchase or maintenance of such interest in the Senior
Class Certificates or that the Adjusted LIBOR Rate applica-
ble to the Senior Class Certificate Principal Balance will
not adequately reflect the cost to the Person of funding or
maintaining its respective interest in the Senior Class
Certificates for such funding period then the Senior Class
Agent shall forthwith so notify the Transferor, whereupon
neither any Senior Class Conduit nor the Bank Investors, as
applicable, shall, while such circumstances exist, allocate
any Senior Class Certificate Principal Balance acquired
during such period or reallocate the Senior Class Certif-
icate Principal Balance allocated to any funding period
ending during such period, to a funding period which
accrues Carrying Costs on the basis of the Adjusted LIBOR
Rate.
(d) Illegality. Notwithstanding any other
provision of this Agreement, if a Senior Class Conduit or
any of the Bank Investors, as applicable, shall notify the
Senior Class Agent that such Person has determined (or has
been notified by any Program Support Provider) that the
introduction of or any change in or in the interpretation
of any law or regulation makes it unlawful (either for a
Senior Class Conduit, such Bank Investor, or such Program
Support Provider, as applicable), or any central bank or
other governmental authority asserts that it is unlawful,
for the Senior Class Conduit, such Bank Investor or such
Program Support Provider, as applicable, to fund the
purchases or maintenance of the Senior Class Certificate
Principal Balance at the Adjusted LIBOR Rate, then (x) as
of the effective date of such notice from such Person to
the Senior Class Agent, the obligation or ability of such
Senior Class Conduit or such Bank Investor, as applicable,
to fund its purchase or maintenance of the Senior Class
Certificate Principal Balance at the Adjusted LIBOR Rate
shall be suspended until such Person notifies the Senior
Class Agent that the circumstances causing such suspension
no longer exist and (y) such Senior Class Certificate Prin-
cipal Balance allocated to each funding period which ac-
crues Carrying Costs on the basis of the Adjusted LIBOR
Rate in which such Person owns an interest shall either (1)
if such Person may lawfully continue to maintain such
interest in the Senior Class Certificate Principal Balance
at the Adjusted LIBOR Rate until the last day of the appli-
cable funding period, be reallocated on the last day of
such funding period to another funding period in respect of
which the Senior Class Certificate Principal Balance
allocated thereto accrues Carrying Costs on a basis other
than the Adjusted LIBOR Rate or (2) if such Person shall
determine that it may not lawfully continue to maintain
such interest in the Senior Class Certificate Principal
Balance at the Adjusted LIBOR Rate until the end of the
applicable funding period, such Person's share of the
Senior Class Certificate Principal Balance allocated to
such funding period shall be deemed to accrue Carrying
Costs on the basis of the Bank Base Rate from the effective
date of such notice until the end of such funding period.
(e) Compensation. The Transferor shall
compensate each Senior Class Conduit and each Bank Inves-
tor, upon its written request (which request shall set
forth in reasonable detail the basis for requesting such
amounts), for all reasonable losses, out-of-pocket expenses
and liabilities (including, without limitation, any
interest paid by such Senior Class Conduit or Bank Investor
to lenders of funds borrowed by it to make or carry any
Senior Class Certificate Principal Balance and any loss
sustained by such Senior Class Conduit or Bank Investor in
connection with the re-employment of such funds), which
such Senior Class Conduit or Bank Investor actually sus-
tains if any payment in respect of any portion of the
Senior Class Certificate Principal Balance funded by such
Senior Class Investor or Bank Investor at a fixed rate
occurs on a date which is not a day agreed upon by the
Transferor and such Senior Class Conduit or Bank Investor.
SECTION 7 Notice of Reinvestment Termination
Date. A Senior Class Conduit that elects not to maintain
its interest in the related Senior Class Investor Amount
shall use commercially reasonable efforts to give the
related Senior Class Agent and the Agent two (2) Business
Days prior written notice of such election; provided that
prior notice shall not be required if such election is as
a result of such Senior Class Conduit's inability to issue
Commercial Paper in the commercial paper market; and
provided further that the Senior Class Conduit shall give
the related Senior Class Agent and the Agent notice
immediately after such election is made by such Senior
Class Conduit. The Agent shall use its reasonable efforts
to give the Transferor by facsimile immediate written
notice of such election.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 1 Representations and Warranties of
the Transferor. As of the date hereof, as of the Closing
Date and as of each day that an acquisition of an Addition-
al Investor Amount is made hereunder, the Transferor repre-
sents and warrants to the Agent, each Senior Class Agent,
each Senior Class Conduit and each Bank Investor, that all
representations and warranties described in this Section
3.1 are true and correct as of such day as though made on
and as of such day:
(a) Corporate Existence and Power. The
Transferor is a corporation duly organized and validly
existing in good standing under the laws of its jurisdic-
tion of incorporation, and has all corporate power, au-
thority and legal right and all material governmental
licenses, authorizations, consents and approvals required
to own its properties and conduct its business as such
properties are presently owned and such business is
presently conducted in each jurisdiction in which it
presently owns properties and presently conducts its
business, except where the absence of any such licenses,
authorizations, consents or approvals would not have a
Material Adverse Effect, and to execute, deliver and per-
form its obligations under this Agreement, the Master
Pooling and Servicing Agreement, the Series Supplement and
all other Transaction Documents to which the Transferor is
a party, and to execute and deliver to the Senior Class
Agents the Senior Class Certificates pursuant to the Series
Supplement.
(b) Due Qualification. The Transferor is
duly qualified to do business and is in good standing (or
is exempt from such requirement) in each jurisdiction in
which the nature of its business requires it to be so
qualified, and has obtained all necessary licenses and
approvals in each jurisdiction in which the failure to be
so qualified or to obtain such licenses and approvals would
have a Material Adverse Effect.
(c) Corporate and Governmental Autho-
rization; Contravention. The execution and delivery by the
Transferor of this Agreement, each Receivables Purchase
Agreement, the Master Pooling and Servicing Agreement, the
Series Supplement, the Fee Letter, the Certificates and the
other Transaction Documents to which the Transferor is a
party, the performance by the Transferor of the transac-
tions contemplated hereby and thereby and the fulfillment
by the Transferor of the terms hereof and thereof, are
within the Transferor's corporate powers, have been duly
authorized by all necessary corporate action, require no
action, approval or consent by or in respect of, or filing
with, any Official Body or official thereof that has not
been taken or obtained, and do not conflict with, violate
or result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time
or both) a default under, any Requirement of Law applicable
to the Transferor, or the Articles of Incorporation or
Bylaws of the Transferor or any agreement, judgment,
injunction, order, writ, decree or other instrument binding
upon the Transferor, or result in the creation or imposi-
tion of any Lien on the assets of the Transferor or any of
its Subsidiaries.
(d) Binding Effect. Each of this Agree-
ment, the Master Pooling and Servicing Agreement, the
Series Supplement, the Fee Letter, the Certificates and the
other Transaction Documents to which the Transferor is a
party constitutes the legal, valid and binding obligation
of the Transferor, enforceable against the Transferor in
accordance with its terms, subject to applicable bank-
ruptcy, insolvency, reorganization, conservatorship,
receivership, moratorium or other similar laws now or here-
after in effect affecting the rights of creditors generally
and to general equitable principles whether or not consid-
ered at law or in equity, and to limitations upon indemni-
fication and contribution contained in applicable securi-
ties laws and regulations.
(e) Accuracy of Information. All infor-
mation heretofore furnished by the Transferor to the Agent,
any Senior Class Agent, any Senior Class Conduit or any
Bank Investor for purposes of or in connection with this
Agreement, the Master Pooling and Servicing Agreement, the
Series Supplement or any transaction contemplated hereby or
thereby is, and all such information hereafter furnished by
the Transferor to any such party will be, true and accurate
in every material respect, on the date such information is
stated or certified.
(f) Tax Status. The Transferor has filed
all tax returns (federal, state and local) required to be
filed and has paid or made adequate provision for the
payment of all its taxes, assessments and other govern-
mental charges.
(g) No Proceedings. Except as set forth in
Exhibit G hereto, there are no actions, suits, proceedings
or investigations pending or, to the best knowledge of the
Transferor, threatened against or affecting the Transferor
or any Affiliate of the Transferor or their respective
properties, in or before any court, regulatory body, admin-
istrative agency, arbitrator or other tribunal or govern-
mental instrumentality (i) asserting the invalidity of this
Agreement, the Master Pooling and Servicing Agreement, the
Series Supplement, the Certificates or the other Transac-
tion Documents, (ii) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Master Pooling and
Servicing Agreement, the Series Supplement, the Certifi-
▇▇▇▇▇ or the other Transaction Documents, or (iii) seeking
any determination or ruling that, individually or in the
aggregate, would have a Material Adverse Effect.
(h) Use of Proceeds. The Transferor is not
engaged in the business of extending credit for the
purposes of purchasing or carrying margin stock, and no
proceeds of any acquisition of an interest in the Senior
Class Certificates, directly or indirectly, will be used
for a purpose that violates, or would be inconsistent with,
Regulations G, T, U and X promulgated by the Federal
reserve Board from time to time.
(i) Aggregate Principal Balance. On each
day, the product of (i) the aggregate Floating Allocation
Percentage with respect to Default Amounts for all Senior
Classes (as of the end of the most recent Monthly Period)
and (ii) the sum of the Excess Funding Amount and the
Aggregate Principal Receivables, shall at least equal the
sum of the Senior Class Certificate Principal Balances for
all Senior Classes.
(j) Transferor Amount; Subordinate Class
Investor Amount. After giving effect to the issuance of
the Senior Class Certificates on the Closing Date, (i) the
Transferor Amount is not less than the Minimum Transferor
Amount and (ii) the Subordinate Class Investor Amount is
not less than the Minimum Enhancement Amount.
(k) Credit Card Guidelines. Since January
9, 1997, other than as described in the Prospectus, dated
August 14, 1997, relating to the Trust's Series 1997-2
Certificates, there have been no material changes in the
Credit Card Guidelines other than as permitted under the
Master Pooling and Servicing Agreement. Since such date,
no material adverse change has occurred in the overall rate
of collection of the Receivables.
(l) No Pay Out Event. No event has oc-
curred and is continuing and no condition exists which
constitutes a Pay Out Event or a Potential Pay Out Event.
(m) Not an Investment Company. The Trans-
feror is not, and is not controlled by, an "investment
company" within the meaning of the 1940 Act, or is exempt
from all provisions of such Act.
(n) ERISA. No liability exists under Title
IV of ERISA or under Section 412 of the Internal Revenue
Code arising out of a Defined Benefit Plan or a
Multiemployer Plan of the Transferor or any ERISA Affili-
ate.
(o) Bulk Sales. No transaction contem-
plated by this Agreement, any Receivables Purchase Agree-
ment or the Master Pooling and Servicing Agreement requires
compliance with any bulk sales act or similar law.
(p) Transfers Under Receivables Purchase
Agreement. Each Receivable which has been transferred to
the Transferor by an Eligible Originator has been purchased
by the Transferor from such Eligible Originator pursuant
to, and in accordance with, the terms of a Receivables Pur-
chase Agreement.
(q) Reasonable Equivalent Value. The
Transferor has given reasonably equivalent value to each
Eligible Originator in consideration for the transfer to
the Transferor of the applicable Receivables and Collec-
tions and Related Security, if any, from such Eligible
Originator, and each such transfer shall not have been made
for or on account of an antecedent debt owed by such Eligi-
ble Originator to the Transferor. The Transferor has re-
ceived reasonably equivalent value in consideration for the
transfer to the Trust of the Receivables and Collections
and Related Security, if any, and will have received rea-
sonably equivalent value in consideration for the sale of
the Senior Certificates (and any sale of additional
interests in the Trust in connection with any Additional
Investor Amount) to the Senior Class Conduits and the Bank
Investors.
(r) Representations and Warranties. Each
representation and warranty of the Transferor set forth in
Article IV of each Receivables Purchase Agreement and in
Article II of the Master Pooling and Servicing Agreement is
true and correct in all material respects and the Trans-
feror hereby remakes all such representations and warran-
ties for the benefit of the Agent, each Senior Class Agent,
each Senior Class Conduit and each Bank Investor.
(s) Validity of Certificates. The Cer-
tificates will be issued pursuant to the terms of the
Master Pooling and Servicing Agreement and the Series
Supplement and, when executed and authenticated by the
Trustee in accordance with the Master Pooling and Servicing
Agreement and the Series Supplement and delivered pursuant
to this Agreement, will be validly issued and outstanding
and entitled to the benefits of the Master Pooling and
Servicing Agreement and the Series Supplement. The Certif-
icates will be in all material respects in the form con-
templated by the Master Pooling and Servicing Agreement and
the Series Supplement. At the time of transfer to the Pur-
chasers hereunder, the Transferor shall have good and
marketable title to the Certificates free and clear of any
Lien.
(t) No General Solicitation. None of the
Transferor or any of its affiliates (as defined in
Rule 501(b) under the Act) or any Person (other than the
Purchasers and their respective affiliates, as to whom the
Transferor makes no representation) acting on its behalf
has engaged, in connection with the offering of the Senior
Class Certificates, in any form of general solicitation or
general advertising within the meaning of Rule 502(c) under
the Act.
(u) No Registration under the Act; Trust
Indenture Act. It is not necessary in connection with the
offer, sale and delivery of the Certificates to the Pur-
chasers to register the Certificates under the Act. The
Master Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939.
The representations and warranties set forth
in this Section shall survive the sale of the Senior Class
Certificates to the Senior Class Conduits or the Bank
Investors and the acquisition by the Senior Class Conduits
or the Bank Investors of any additional interests in the
Trust in connection with any Additional Investor Amounts.
Upon discovery by the Transferor, the Agent, any Senior
Class Agent, any Senior Class Conduit or any Bank Investor
of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give
prompt written notice thereof to each other party, provided
that the failure by any such party to give any such notice
shall not impair any of such parties' rights hereunder.
SECTION 2 Representations and Warranties of
the Servicer. As of the date hereof, as of the Closing
Date and as of each day that an acquisition of an Addition-
al Investor Amount is made hereunder, the Servicer hereby
makes and shall be deemed to have made the following
representations and warranties:
(a) Organization and Good Standing. The
Servicer is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of
its incorporation and has all corporate power , authority
and legal right and all material governmental licenses,
authorizations, consents and approvals required to own its
properties and conduct its business as such properties are
presently owned and such business is presently conducted in
each jurisdiction in which it presently owns properties and
presently conducts its business, except where the absence
of any such licenses, authorizations, consents or approvals
would not have a Material Adverse Effect, and to execute,
deliver and perform its obligations under this Agreement,
the Master Pooling and Servicing Agreement and all other
Transaction Documents to which it is a party and to service
the Receivables as required under federal and state law.
(b) Due Qualification. The Servicer is
duly qualified to do business and is in good standing (or
is exempt from such requirements) in each jurisdiction in
which the nature of its business requires it to be so
qualified and has obtained all necessary licenses and
approvals in each jurisdiction in which the failure to be
so qualified or to obtain such licenses and approvals would
have a Material Adverse Effect or a material adverse effect
on the Servicer's ability to perform its obligation under
the Master Pooling and Servicing Agreement or to service
the Receivables as required under federal and state law.
(c) Corporate and Governmental Autho-
rization; Contravention. The execution and delivery and
performance by the Servicer of this Agreement and the other
Transaction Documents to which the Servicer is a party, the
performance by the Servicer of the transactions contemplat-
ed hereby and thereby and the fulfillment by the Servicer
of the terms hereof and thereof are within the Servicer's
corporate powers, have been duly authorized by all neces-
sary corporate action, require no action, consent or
approval by or in respect of, or filing with, any Official
Body or official thereof that has not been taken or
obtained, and do not conflict with, violate or result in
any breach of any of the terms and provisions of, or con-
stitute (with or without notice or lapse of time or both)
a default under, any Requirement of Law applicable to the
Servicer, or the Articles of Incorporation or Bylaws of the
Servicer or any agreement, judgment, injunction, order,
writ, decree or other instrument binding upon the Servicer
and will not result in the creation or imposition of any
Lien on assets of the Servicer or any of its Subsidiaries.
(d) Binding Effect. Each of this Agreement
and the other Transaction Documents to which the Servicer
is a party constitutes the legal, valid and binding obliga-
tion of the Servicer, enforceable against the Servicer in
accordance with its terms, subject to applicable bank-
ruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereinafter in effect affecting the en-
forcement of creditors' rights in general and to general
equitable principles, whether or not considered at law or
in equity, and to limitations upon indemnification and
contribution contained in applicable securities laws and
regulations.
(e) Accuracy of Information. All infor-
mation heretofore furnished by the Servicer to the Trans-
feror, the Agent, any Senior Class Agent, any Senior Class
Conduit or any Bank Investor for purposes of or in connec-
tion with this Agreement, the Master Pooling and Servicing
Agreement, the Series Supplement or any transaction contem-
plated hereby or thereby is, and all such information
hereafter furnished by the Servicer to any such party will
be, true and accurate in every material respect, on the
date such information is stated or certified.
(f) Tax Status. The Servicer has filed all
tax returns (federal, state and local) required to be filed
and has paid or made adequate provision for the payment of
all taxes, assessments and other governmental charges.
(g) No Proceedings. Except as set forth in
Exhibit G hereto, there are no proceedings or investiga-
tions pending or, to the best knowledge of the Servicer,
threatened against the Servicer or any Affiliate of the
Servicer before any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality
(i) asserting the invalidity of this Agreement or the other
Transaction Documents, (ii) seeking to prevent the issuance
of the Certificates or the consummation of any of the
transactions contemplated by this Agreement and the other
Transaction Documents or (iii) seeking any determination or
ruling that, individually or in the aggregate, would have
a Material Adverse Effect.
(h) Credit Card Guidelines. Since January
9, 1997, other than as described in the Prospectus, dated
August 14, 1997, relating to the Trust's Series 1997-2
Certificates, there have been no material changes in the
Credit Card Guidelines other than as permitted hereunder
and under the Master Pooling and Servicing Agreement.
Since such date, no material adverse change has occurred in
the overall rate of collection of the Receivables.
(i) Collections and Servicing. Since
May 9, 1997, there has been no material adverse change in
the ability of the Servicer to service and collect the Re-
ceivables and no material adverse change has occurred in
the overall rate of collections of Receivables.
(j) Not an Investment Company. The
Servicer is not an "investment company" within the meaning
of the 1940 Act, or is exempt from all provisions of such
Act.
(k) ERISA. The Servicer is in compliance
in all material respects with ERISA.
The representations and warranties set forth
in this Section shall survive the sale of the Senior Class
Certificates to the Senior Class Conduits or the Bank
Investors and the acquisition by the Senior Class Conduits
or the Bank Investors of any additional interests in the
Trust in connection with any Additional Investor Amounts.
Upon discovery by the Servicer, the Transferor, the Agent,
any Senior Class Agent, any Senior Class Conduit or any
Bank Investor of a breach of any of the foregoing repre-
sentations and warranties, the party discovering such
breach shall give prompt written notice thereof to each
other party, provided that the failure by any such party to
give any such notice shall not impair any of such parties'
rights hereunder.
SECTION 3 Covenants of the Transferor. At
all times from the date hereof to the later to occur of (i)
the Termination Date or (ii) the date on which all amounts
due to the Senior Certificateholders under this Agreement
and the other Transaction Documents shall have been paid in
full, unless the Agent and each Senior Class Agent shall
otherwise consent in writing:
(a) Financial Reporting. The Transferor
will, and will cause each Eligible Originator and each of
such Eligible Originator's Subsidiaries to, maintain, for
itself and each of its respective Subsidiaries, a system of
accounting established and administered in accordance with
GAAP, and will furnish to the Agent and each Senior Class
Agent:
(i) Annual Reports. Within one
hundred (100) days after the close of the
Transferor's and ▇▇▇▇▇▇▇▇'▇ fiscal years, (be-
ginning with the fiscal year ending in 1998) au-
dited financial statements, prepared in accor-
dance with GAAP on a consolidated basis for (x)
the Transferor and (y) for ▇▇▇▇▇▇▇▇'▇ and its
Subsidiaries, in each case, including balance
sheets as of the end of such period, related
statements of operations, shareholder's equity
and cash flows, accompanied by an unqualified
audit report certified by Coopers & ▇▇▇▇▇▇▇,
L.L.P., or other independent certified public
accountants, acceptable to the Agent, prepared
in accordance with GAAP and, upon the Agent's
request, any management letter prepared by said
accountants and accompanied by (i) a certificate
of said accountants that ▇▇▇▇▇▇▇▇'▇ is in com-
pliance with the financial covenants set forth
in Section 3.4(j) hereof, or, if ▇▇▇▇▇▇▇▇'▇ is
not in compliance with such covenants, stating
the nature and status thereof and (ii) a certif-
icate of the chief financial officer or chair-
man, president, treasurer or any executive or
senior vice president of the Transferor stating
that no Pay Out Event or Potential Pay Out Event
exists, or if any Pay Out Event or Potential Pay
Out Event exists, stating the nature and status
thereof and showing the computation of each of
the financial ratios and restrictions set forth
in Section 3.4(j) hereof.
(ii) Quarterly Reporting. With-
in fifty (50) days after the close of the first
three quarterly periods of each of the
Transferor's and ▇▇▇▇▇▇▇▇'▇ fiscal years, for
(x) the Transferor and (y) for ▇▇▇▇▇▇▇▇'▇ and
its Subsidiaries, in each case, consolidated
unaudited balance sheets as at the close of each
such period and consolidated related statements
of operations and cash flows for the period from
the beginning of such fiscal year to the end of
such quarter, and showing the computation of
each of the financial ratios and restrictions
set forth in Section 3.4(j) hereof all certified
by its chief financial officer, chairman, presi-
dent, treasurer or any executive or senior vice
president.
(iii) Compliance Certificate.
Together with the financial statements required
hereunder, a compliance certificate signed by
the chief financial officer, chairman, presi-
dent, treasurer or any executive or senior vice
president of the Transferor or ▇▇▇▇▇▇▇▇'▇, as
applicable, stating that (x) the attached ▇▇▇▇▇-
cial statements have been prepared in accordance
with GAAP and accurately reflect the financial
condition of the Transferor or ▇▇▇▇▇▇▇▇'▇ as ap-
plicable (in the case of quarterly statements,
subject to normal adjustments) and (y) to the
best of such Person's knowledge, no Pay Out
Event or Potential Pay Out Event exists, or if
any Pay Out Event or Potential Pay Out Event
exists, stating the nature and status thereof
and showing the computation of, and showing
compliance with, each of the financial ratios
and restrictions set forth in Section 3.4(j)
hereof.
(iv) Shareholders Statements and
Reports. Promptly upon the furnishing thereof
generally to the shareholders of ▇▇▇▇▇▇▇▇'▇,
copies of all financial statements, reports and
proxy statements so furnished to the extent not
included in the filings provided pursuant to
paragraph (v) below.
(v) S.E.C. Filings. Promptly
upon (x) the filing thereof, copies of all annu-
al, quarterly, monthly or other regular reports
and reports on Form 8-K and (y) the effective-
ness thereof, copies of all registration state-
ments, in each case which ▇▇▇▇▇▇▇▇'▇ or any sub-
sidiary files with the Securities and Exchange
Commission (excluding any filings on Form S-8).
(vi) Notice of Pay Out Events or
Potential Pay Out Events. As soon as possible
and in any event within two (2) days after the
occurrence of each Pay Out Event or each Poten-
tial Pay Out Event, a statement of the chief fi-
nancial officer or chief accounting officer of
the Transferor setting forth details of such Pay
Out Event or Potential Pay Out Event and the ac-
tion which the Transferor proposes to take with
respect thereto.
(vii) Change in Credit Card
Guidelines and Debt Ratings. Within thirty (30)
days after the date of any ,material change in
or amendment to the Credit Card Guidelines is
made, a copy of the Credit Card Guidelines then
in effect indicating such change or amendment.
Within fifteen (15) days after any change in
▇▇▇▇▇▇▇▇'▇ public or private debt ratings by any
rating agency that has been requested by
▇▇▇▇▇▇▇▇'▇ to provide any such rating, if any, a
written certification of ▇▇▇▇▇▇▇▇'▇ public and
private debt ratings after giving effect to any
such change.
(viii) Credit Card Guidelines.
Within ten (10) Business Days of the request of
the Agent or any Senior Class Agent, a complete
copy of the Credit Card Guidelines then in ef-
fect.
(ix) ERISA. Promptly after the
filing or receiving thereof, copies of all
reports and notices with respect to any Report-
able Event which the Transferor, any Eligible
Originator or any ERISA Affiliate of the Trans-
feror or any Eligible Originator files under
ERISA with the Internal Revenue Service, the
PBGC or the U.S. Department of Labor or which
the Transferor, any Eligible Originator or any
ERISA Affiliates of the Transferor or any Eligi-
ble Originator receives from the Internal Reve-
nue Service, the PBGC or the U.S. Department of
Labor.
(x) Other Information. Such
other information (including non-financial in-
formation) as the Agent or any Senior Class
Agent may from time to time reasonably request
with respect to any Eligible Originator, the
Transferor or any Subsidiary of any of the
foregoing.
(b) Conduct of Business. The Transferor
will carry on and conduct its business in substantially the
same manner and in substantially the same fields of
enterprise as it is presently conducted and do all things
necessary to remain duly incorporated, validly existing and
in good standing as a domestic corporation in its jurisdic-
tion of incorporation and maintain all requisite authority
to conduct its business in each jurisdiction in which its
business is conducted.
(c) Compliance with Laws. The Transferor
will comply with all laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which
it or its respective properties may be subject.
(d) Furnishing of Information and Inspec-
tion of Records. The Transferor will, and will exercise
its rights under Section 5.1(c) of the Receivable Purchase
Agreement to obtain information from each Eligible Origina-
tor in order to, furnish to the Agent and each Senior Class
Agent from time to time such information with respect to
the Receivables as the Agent or such Senior Class Agent may
reasonably request, including, without limitation, listings
identifying the Obligor and the Outstanding Principal
Balance for each Receivable. The Transferor will permit,
and will exercise its rights under Section 5.1(c) of the
Receivable Purchase Agreement in order to permit, at any
time and from time to time during regular business hours
and upon reasonable prior notice, the Agent and each Senior
Class Agent, or their respective agents or representatives,
(i) to examine and make copies of and take abstracts from
all Records (at the expense of the Transferor) and (ii) to
visit the offices and properties of the Transferor or such
Eligible Originator, as applicable, for the purpose of
examining such Records, and to discuss matters relating to
Receivables or the Transferor's or such Eligible
Originator's performance hereunder and under the other
Transaction Documents to which such Person is a party with
any of the officers, directors, employees or independent
public accountants of the Transferor or such Eligible
Originator, as applicable, having knowledge of such mat-
ters.
(e) Keeping of Records and Books of Ac-
count. The Transferor will, and will cause each Eligible
Originator to, maintain and implement administrative and
operating procedures (including, without limitation, an
ability to recreate records evidencing Receivables in the
event of the destruction of the originals thereof), and
keep and maintain, all documents, books, records and other
information reasonably necessary or customary for the
collection of all Receivables (including, without limita-
tion, records adequate to permit the daily identification
of each new Receivable and all Collections of and adjust-
ments to each existing Receivable). The Transferor will
give the Agent and each Senior Class Agent notice of any
material change in the administrative and operating proce-
dures of the Transferor or any Eligible Originator.
(f) Sale Treatment. The Transferor will
not (i) account for (including for accounting and tax
purposes), or otherwise treat, the transactions contem-
plated by the Receivables Purchase Agreement in any manner
other than as a sale of the Receivables by such Eligible
Originator to the Transferor, or (ii) account for (other
than for tax purposes) or otherwise treat the transactions
contemplated hereby in any manner other than as a sale of
an undivided percentage ownership interest in the Receiv-
▇▇▇▇▇ by the Transferor to the Senior Class Conduits or the
Bank Investors, as applicable. In addition, the Transferor
shall, and shall cause each Eligible Originator to, dis-
close (in a footnote or otherwise) in all of its respective
financial statements (including any such financial state-
ments consolidated with any other Persons' financial state-
ments) the existence and nature of the transaction con-
templated by the Master Pooling and Servicing Agreement and
by each Receivables Purchase Agreement and the interest of
the Transferor (in the case of an Eligible Originator's
financial statements), the Senior Class Conduits and the
Bank Investors in the Affected Assets.
(g) Corporate Documents. The Transferor
shall not amend, alter, change or repeal any Articles of
its Articles of Incorporation without the prior written
consent of the Agent and each Senior Class Agent.
(h) No Sales, Liens, Etc. Except as
otherwise permitted by the Master Pooling and Servicing
Agreement, the Series Supplement, this Agreement or any
other Transaction Document, the Transferor will not sell,
assign (by operation of law or otherwise) or otherwise
dispose of, or create or suffer to exist any Lien upon (or
the filing of any financing statement with respect to), any
of the Trust Property.
(i) No Extension or Amendment of Receiv-
▇▇▇▇▇; Discount Percentage. Except as otherwise permitted
by the Transaction Documents, the Transferor will not, and
will not change or waive Section 5.1(f) of any Receivable
Purchase Agreement to permit any Eligible Originator to,
extend, amend or otherwise modify the terms of any Receiv-
able, or amend, modify or waive any term or condition of
any Account related thereto. The Transferor further cove-
nants that, except as otherwise required by any Requirement
of Law, it shall not, and shall not cause or otherwise
permit the Servicer at any time to, reduce the periodic fi-
▇▇▇▇▇ charges assessed on any Receivable or other fees on
any Account if, as a result of such reduction, the rea-
sonable expectation of the Portfolio Adjusted Yield as of
such date would be less than 1.00%.
(j) Changes to Account Agreements. The
Transferor shall not change the terms and provisions of the
Account Agreements or the Credit Card Guidelines in any re-
spect (including, without limitation, the calculation of
the amount, and the timing, of uncollectible Receivables)
except to the extent permitted by the Master Pooling and
Servicing Agreement.
(k) No Change in Business or Credit Card
Guidelines. The Transferor will not make any change in the
character of its business or in the Credit Card Guidelines,
which change would, in either case, impair the
collectibility of any substantial portion of the Receiv-
▇▇▇▇▇ or otherwise result in a Material Adverse Effect.
(l) Amendment of Receivables Purchase
Agreement, Master Pooling and Servicing Agreement and
Series Supplement. The Transferor will not amend, waive,
modify or supplement any Receivables Purchase Agreement,
the Master Pooling and Servicing Agreement, the Series Sup-
plement or any other Transaction Document to which it is a
party without the prior written consent of the Agent and
each Senior Class Agent to the substance and form of any
such amendment, modification, waiver or supplement and, in
addition, will not permit any Eligible Originator to take
(or acquiesce in the taking of any such action) any action
(including any omission to act) under any Transaction Docu-
ment to which it is a party that would have a material
adverse effect on the Agent, any Senior Class Conduit or
any Bank Investor or which is inconsistent with the terms
of the Master Pooling and Servicing Agreement, the Series
Supplement or this Agreement.
(m) Other Debt. Except as permitted by
this Agreement or the Master Pooling and Servicing Agree-
ment, the Transferor will not create, incur, assume or
suffer to exist any indebtedness whether current or funded,
or any other liability other than (i) indebtedness of the
Transferor representing fees, expenses and indemnities
arising hereunder, under any Series Supplement, any
Enhancement or under a Receivables Purchase Agreement for
the purchase price of the Receivables under such Receiv-
▇▇▇▇▇ Purchase Agreement, and (ii) other indebtedness
incurred in the ordinary course of its business, the amount
thereof which is past due not to exceed $9,750 at any time
outstanding.
(n) ERISA Matters. The Transferor will not
(i) engage in any prohibited transaction (as defined in
Section 4975 of the Code and Section 406 of ERISA) for
which an exemption is not available or has not previously
been obtained from the U.S. Department of Labor; (ii)
permit to exist any accumulated funding deficiency (as
defined in Section 302(a) of ERISA and Section 412(a) of
the Code) or funding deficiency with respect to any Defined
Benefit Plan other than a Multiemployer Plan that could
reasonably result in the PBGC or IRS filing a lien; (iii)
fail to make any payments to any Multiemployer Plan that
the Transferor, such Eligible Originator or any ERISA
Affiliate of the Transferor or such Eligible Originator is
required to make under the agreement relating to such
Multiemployer Plan or any law pertaining thereto; (iv)
terminate any Defined Benefit Plan so as to result in any
liability; or (v) permit to exist any occurrence of any
Reportable Event which represents a material risk of a
liability to the Transferor, such Eligible Originator, or
any ERISA Affiliate of the Transferor or such Eligible
Originator under ERISA or the Code.
(o) Receivables Purchase Agreement. The
Transferor, in its capacity as purchaser of the Receivables
from the Eligible Originators pursuant to the related Re-
ceivables Purchase Agreement, will at all times enforce the
covenants and agreements of each Eligible Originator in
each Receivables Purchase Agreement. With respect to any
Receivable sold by an Eligible Originator to the Trans-
feror, the Transferor shall, and shall cause such Eligible
Originator to, effect such sale under, and pursuant to the
terms of, a Receivables Purchase Agreement, including,
without limitation, the payment by the Transferor, either
in cash, by increase in the amount of the Subordinated
Note, a contribution of capital or any combination thereof,
to such Eligible Originator in an aggregate amount equal to
the purchase price for such Receivable as required by the
terms of such Receivables Purchase Agreement.
(p) Master Pooling and Servicing Agreement.
The Transferor will comply with the covenants set forth in
Section 2.5 of the Master Pooling and Servicing Agreement.
(q) Notice of Breach; Liens. The Trans-
feror shall advise the Agent and each Senior Class Agent
promptly, in reasonable detail, (i) after becoming aware of
any Lien on any Receivable or other Trust Property other
than the conveyances under the Master Pooling and Servicing
Agreement or under a Receivables Purchase Agreements or
Liens permitted under Section 2.5(b) of the Master Pooling
and Servicing Agreement or under Section 5.2(a) of the
Receivable Purchase Agreement, (ii) of any breach by the
Transferor or the Servicer of any of their respective
representations, warranties and covenants contained herein
or in the Master Pooling and Servicing Agreement and (iii)
of the occurrence of any other event which would have a
material adverse effect on the Trustee's interest in the
Receivables or the collectibility thereof.
(r) Notice of Additions. On or before the
fifth Business Day prior to the Additional Account Closing
Date with respect to any Additional Accounts designated
pursuant to subsections 2.6(a) or (b) of the Master Pooling
and Servicing Agreement, the Transferor shall give the
Agent and each Senior Class Agent written notice that the
Receivables in such Additional Accounts will be included,
specifying the approximate aggregate amount of Receivables
in such Additional Accounts. The Transferor shall give the
Agent and each Senior Class Agent five (5) Business Days
prior written notice of (i) any designation of Accounts to
be included as Accounts pursuant to subsection 2.5(d) of
the Master Pooling and Servicing Agreement and (ii) any
discontinuance or suspension of any such designation. The
Transferor shall not include as Automatic Additional
Accounts any Accounts of a type not included as Accounts on
the Initial Closing Date or included on any Additional
Account Closing Date pursuant to which Additional Accounts
are designated pursuant to subsection 2.6(b) of the Master
Pooling and Servicing Agreement or consented to in writing
by the Agent and each Senior Class Agent.
(s) Protection of Interest in Trust
Property. The Transferor shall execute and file such con-
tinuation statements and any other documents reasonably re-
quested by the Trustee, the Agent, any Senior Class Agent,
any Senior Class Conduit or any Bank Investor or which may
be required by law to fully preserve and protect the inter-
est of the Trustee in and to the Receivables and the other
Trust Property.
(t) Transfer of Transferor Interest and
Subordinate Class Certificates. The Transferor shall not
assign, transfer or otherwise convey to any Person any
interest in the Transferor Interest or the Subordinate
Class Certificates held by it without (i) the prior written
consent of the Agent and each Senior Class Agent and (ii)
delivering to the Trustee prior thereto an Opinion of Coun-
sel to the effect that (x) the conveyed interest in the
Transferor's Interest or the Subordinate Class Certificates
will be treated as either debt or an interest in a part-
nership for federal income tax purposes and that the
conveyance of such interest will not cause the Trust to be
characterized for federal income tax purposes as an
association or a publicly traded partnership taxable as a
corporation or otherwise have any material adverse impact
on the federal or applicable state income taxation of any
outstanding Certificates or any Certificate Owner and (y)
such transfer will not cause a taxable event for federal
income tax purposes to any Investor Certificateholder.
(u) No Assignment. The Transferor shall
not assign any of its rights or delegate any of its duties
hereunder or under the Master Pooling and Servicing Agree-
ment or the Series Supplement or under any of the other
Transaction Documents to which it is a party without the
prior written consent of the Agent and each Senior Class
Agent.
(v) No Designation. The Transferor shall
not designate an Eligible Originator other than ▇.▇.
▇▇▇▇▇▇▇▇▇'▇, Inc., ▇▇▇▇▇'▇, Inc., Parisian, Inc. or
▇▇▇▇▇▇▇▇'▇, Inc., without the prior written consent of the
Agent and each Senior Class Agent.
(w) Consent of Agent and Senior Class
Agent. The Transferor shall obtain the written consent of
the Agent and each Senior Class Agent prior to taking any
action under the Master Pooling and Servicing Agreement
that would require (i) the satisfaction of the Rating
Agency Condition under the Master Pooling and Servicing
Agreement (whether or not any Series is then currently
rated by any rating agency) or (ii) the consent of the
Trustee.
(x) Notice of Delegation of Servicer's
Duties. The Transferor promptly shall notify the Agent and
each Senior Class Agent of any delegation by the Servicer
of any of the Servicer's duties under the Master Pooling
and Servicing Agreement or the Series Supplement, provided
that the designation of ▇▇▇▇▇'▇, Inc. or any other Affili-
ate of the Transferor as Subservicer shall be permitted
without notice.
(y) Notice of Resignation or Removal of the
Trustee. The Transferor promptly shall notify the Agent
and each Senior Class Agent of any resignation or removal
of the Trustee under the Master Pooling and Servicing
Agreement.
(z) Reduction of Investor Amounts. If, on
any day, (x) the Senior Class Certificate Principal Balance
for any Senior Class plus the Interest Component of all
Related Commercial Paper issued by the related Senior Class
Conduit and then outstanding, if any, exceeds the Senior
Class Facility Limit for such Class or (y) the product of
(i) the aggregate Floating Allocation Percentage with
respect to Default Amounts for all Senior Classes (as of
the end of the most recent Monthly Period) and (ii) the sum
of the Excess Funding Amount and the Aggregate Principal
Receivables, is less than the sum of the Senior Class Cer-
tificate Principal Balances for all Senior Classes, the
Transferor shall distribute on such day to such Senior
Class Conduit, in accordance with subsection 4.5(d) of the
Series Supplement an amount sufficient to (I) reduce the
sum of the Senior Class Investor Amount and the Interest
Component of all outstanding Related Commercial Paper for
such Senior Class to an amount which is less than the
Senior Class Facility Limit for such Senior Class or (II)
reduce the sum of the Senior Class Certificate Principal
Balances for all Senior Classes plus the Minimum Enhance-
ment Amount to an amount which is less than the Series
Allocation Percentage with respect to Principal Receivables
(as of the end of the most recent Monthly Period) of the
Aggregate Outstanding Principal Balance, as applicable.
SECTION 4 Covenants of the Servicer. At all
times from the date hereof to the later to occur of (i) the
Termination Date or (ii) the date on which all amounts due
to the Senior Certificateholders under this Agreement and
the other Transaction Documents shall have been paid in
full, unless the Agent and each Senior Class Agent shall
otherwise consent in writing:
(a) Records. The Senior Class Certificate-
holders and their agents and representatives shall at all
times upon reasonable prior notice have full access during
normal business hours to all Records of the Servicer, and
the Agent, each Senior Class Agent and the Senior Class
Certificateholders and their agents and representatives may
examine the same, take extracts therefrom and make photo-
copies thereof, and the Servicer agrees to render to such
Persons, at the Servicer's cost and expense, such clerical
and other assistance as may be reasonably requested with
regard thereto.
(b) No Extension or Amendment of Receiv-
▇▇▇▇▇. Except as otherwise expressly permitted by the
Transaction Documents, the Servicer will not extend, amend
or otherwise modify the terms of any Receivable, or amend,
modify or waive any term or condition of any Account
related thereto. The Servicer further covenants that,
except as otherwise required by any Requirement of Law, it
shall not reduce the periodic finance charges assessed on
any Receivable or other fees on any Account if, as a result
of such reduction, the reasonable expectation of the
Portfolio Adjusted Yield as of such date would be less than
1.00%.
(c) Conduct of Business. The Servicer
will, and will cause each of its Subsidiaries to which it
delegates any servicing functions under the Master Pooling
and Servicing Agreement to, carry on and conduct its
business in substantially the same fields of enterprise as
it is presently conducted and do all things necessary to
remain duly incorporated, validly existing and in good
standing in its jurisdiction of incorporation and maintain
all requisite authority to conduct its business in each
jurisdiction in which its business is conducted. All
Eligible Originators shall at all times be direct or indi-
rect wholly-owned subsidiaries of ▇▇▇▇▇▇▇▇'▇.
(d) Financial Covenants. The Servicer
shall:
(i) not permit, at any time during any
four-quarter period, the ratio of ▇▇▇▇▇▇▇-
dated Funded Senior Indebtedness to Con-
solidated EBITDA to be greater than 3.50 to
1.00;
(ii) not permit, at any time, the ratio of
Consolidated Total Funded Indebtedness to
Consolidated EBITDA to be equal to or
greater than 4.00 to 1.00; and
(ii) not permit, at any time during any
four-quarter period of the Servicer ending
during the periods set forth below, the
Consolidated Fixed Charge Coverage Ratio
for such four-quarter period to be equal to
or less than the ratios set forth opposite
the respective periods set forth below:
Period Ratio
Closing Date through
Fiscal Year End 1997 1.25 to 1.00
At all times thereafter 1.50 to 1.00
(e) No Assignment. The Servicer shall not
assign any of its rights or delegate any of its duties
hereunder or under the Master Pooling and Servicing
Agreement or the Series Supplement or under any of the
other Transaction Documents to which it is a party without
the prior written consent of the Agent and each Senior
Class Agent provided that any designation of ▇▇▇▇▇'▇ or any
other Affiliate of the Transferor as Subservicer shall be
permitted without notice.
SECTION 5 Tax Treatment. The Transferor, the
Senior Class Conduits and the Bank Investors have entered
into this Agreement, and the Transferor has entered into
the Series Supplement, with the intention that the Senior
Class Certificates will qualify under applicable tax law as
indebtedness, and the Transferor and each Senior Class
Conduit and Bank Investor by its acceptance of the Senior
Class Certificates agree to and shall treat the Senior
Class Certificates for purposes of federal and state income
or franchise taxes and any other tax imposed on or measured
by income, as indebtedness unless otherwise required by the
Internal Revenue Service.
SECTION 6 Conditions Precedent to Initial
Transfer. On or prior to the Closing Date, the Transferor
and the Servicer shall deliver to the Agent (with suffi-
cient copies for each Senior Class Agent and their re-
spective counsel) the following documents, instruments and
fees, all of which shall be in a form and substance
acceptable to the Agent and each Senior Class Agent:
(a) A copy of the resolutions of the Board
of Directors (or Executive Committee) of each of the Trans-
feror and the Servicer, certified by its Secretary, approv-
ing the execution, delivery and performance by the Trans-
feror and the Servicer, respectively, of the Master Pooling
and Servicing Agreement, the Series Supplement, this Agree-
ment, the Certificates, the other Transaction Documents to
which the Transferor or the Servicer is a party.
(b) A copy of the resolutions of the Board
of Directors (or Executive Committee) of each Eligible
Originator, certified by its Secretary, approving the
execution, delivery and performance by such Eligible
Originator of the related Receivables Purchase Agreement
and the other Transaction Documents to which such Eligible
Originator is a party.
(c) The Articles of Incorporation of the
Transferor, the Servicer and each Eligible Originator,
certified by the Secretary of State or other similar
official of its jurisdiction of incorporation dated a
recent date and further certified by an officer of each
respective corporation.
(d) A Good Standing Certificate for the
Transferor, the Servicer and each Eligible Originator
issued by the Secretary of State or other similar official
of its jurisdiction of incorporation and certificates of
qualification as a foreign corporation issued by the
Secretaries of State or other similar officials of each
jurisdiction where such qualification is material to the
transactions contemplated by the Transaction Documents to
which such Person is a party, in each case dated a date
reasonably prior to the Closing Date.
(e) A certificate of an Executive Vice
President, Senior Vice President or Treasurer of the Trans-
feror, the Servicer and each Eligible Originator substan-
tially in the form of Exhibit C hereto.
(f) Certified copies of request for
information or copies (Form UCC-11) (or a similar search
report certified by parties acceptable to the Agent) dated
a date reasonably prior to the Closing Date listing all
effective financing statements which name (x) the Transfer-
or or any Eligible Originator (under its present name and
any previous names) as debtor and which are filed with re-
spect to the Transferor or any Eligible Originator in the
jurisdictions in which the filings are made pursuant to
clauses (h) and (i) below, together with copies of such
financing statements (none of which shall cover any portion
of the Trust Property).
(g) Copies of proper financing statements
(Form UCC-3), if any, necessary to terminate all security
interests and other rights of any Person in the Receivables
and the other Trust Property previously granted by the
Transferor or any Eligible Originator.
(h) Copies of acknowledgment copies of
proper financing statements (Form UCC-1) naming each
Eligible Originator as the debtor or, alternatively, seller
of the Receivables and the other Trust Property, and the
Transferor as secured party or, alternatively, purchaser of
the Receivables and the other Trust Property and the
Trustee as assignee thereof or other similar instruments or
documents as may be necessary or in the opinion of the
Agent or any Senior Class Agent desirable under the UCC of
all appropriate jurisdictions or any comparable law to evi-
dence the perfection of the Transferor's interest in the
Receivables and the other Trust Property.
(i) Copies of acknowledgment copies of
proper financing statements (Form UCC-1) naming the
Transferor as the debtor or seller of the Receivables and
the other Trust Property and the Trustee as secured party
or purchaser of the Receivables and the other Trust Proper-
ty or other similar instruments or documents as may be
necessary or in the opinion of the Agent or any Senior
Class Agent desirable under the UCC of all appropriate
jurisdictions or any comparable law to evidence the
perfection of the Trustee's interest in the Receivables and
the other Trust Property.
(j) Favorable opinions of ▇▇▇▇▇▇ & Bird
LLP, counsel to the Transferor, the Servicer and each
Eligible Originator (i) in substantially the form of Exhib-
it D hereto with respect to certain corporate and enforce-
ability matters and (ii) in form and substance satisfactory
to each Senior Class Agent and its counsel with respect to
certain bankruptcy and insolvency matters (i.e. "true sale"
and "nonconsolidation") and federal income tax matters.
(k) Favorable opinions of ▇▇▇▇▇▇ Snow
O'▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special Mississippi counsel to
the Servicer, in form and substance satisfactory to each
Senior Class Agent and its counsel with respect to certain
Mississippi Uniform Commercial Code matters.
(l) Favorable opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
special Nevada counsel to the Transferor, in form and sub-
stance satisfactory to each Senior Class Agent and its
counsel with respect to certain corporate and security
interest matters under Nevada law.
(m) Favorable opinions of counsel to the
Trustee, as to the due authorization, execution and
delivery by the Trustee of the Master Pooling and Servicing
Agreement, the Series Supplement and each other Transaction
Document executed by the Trustee.
(n) An executed copy of each Receivables
Purchase Agreement, the Master Pooling and Servicing
Agreement, the Series Supplement, this Agreement, the Fee
Letter, and executed or a certified copy of each of the
other Transaction Documents to be executed by the Trans-
feror, the Servicer or any Eligible Originator.
(o) The Class A-1 Variable Funding Certifi-
▇▇▇▇▇ in the face amount of $75,000,000 and the Class A-2
Variable Funding Certificates in the face amount of
$50,000,000, and the Subordinate Class Certificates in the
face amount of $14,375,000, in each case duly executed by
the Transferor and duly authenticated by the Trustee and
issued, in the case of the Senior Class Certificates, to
the parties specified in Section 2.1 hereof and, in the
case of the Subordinate Class Certificates, to the Trans-
feror.
(p) Payment of (i) any fees to be paid on
or prior to the Closing Date pursuant to the Fee Letter and
(ii) all up-front fees to be paid to the Senior Class
Conduits.
(q) An instrument indicating the appoint-
ment by the Transferor and each Eligible Originator of CT
Corporation as agent for service of process in accordance
with Section 6.4(d) hereof.
(r) Such other documents, instruments, cer-
tificates and opinions as the Agent, any Senior Class Agent
or any Bank Investor shall reasonably request.
SECTION 7 Quarterly Certificate. The
Servicer shall deliver, or the Transferor shall cause the
Servicer (if ▇▇▇▇▇▇▇▇'▇ Inc. is not the Servicer) to deliv-
er, to the Agent and each Senior Class Agent (i) within
forty-five (45) days after the end of each calendar quarter
of each calendar year, beginning with the calendar quarter
ending December 31, 1997, an officer's certificate substan-
tially in the form of Exhibit E hereto stating that (a) a
review of the activities of the Servicer during the
preceding calendar quarter (or such shorter period as may
have elapsed since the Closing Date), and of its perfor-
▇▇▇▇▇ under this Agreement and the other Transaction
Documents to which it is a party was made under the super-
vision of the officer signing such certificate and (b) to
the best of such officer's knowledge, based on such review,
the Servicer has fully performed all of its obligations
under this Agreement, the Series 1997-1 Supplement, the
Master Pooling and Servicing Agreement and the other Trans-
action Documents to which it is a party throughout such
quarter (or such shorter period as may have elapsed since
the Closing Date), or, if there has occurred an event
which, with the giving of notice or passage of time or
both, would constitute a Pay Out Event or Servicer Default,
specifying each such event known to such officer and the
nature and status thereof and (ii) the Officer's Certifi-
cate required to be delivered to the Trustee pursuant to
Section 3.5 of the Master Pooling and Servicing Agreement
concurrently with the delivery of such Officer's Certifi-
cate to the Trustee.
SECTION 8 Periodic Notices and Reports.
(a) Notices, Certificates and Reports
Delivered to the Trustee and the Rating Agencies. In addi-
tion to those notices, certificates and reports required to
be delivered to the Agent or the Senior Class Agents pursu-
ant to Section 3.3 hereof, the Transferor shall furnish to
the Agent and each Senior Class Agent a copy of each no-
▇▇▇▇, certificate or report delivered to the Trustee or a
Rating Agency pursuant to the Master Pooling and Servicing
Agreement or the Series Supplement concurrently with the
delivery of any such notice, certificate or report to the
Trustee or a Rating Agency, as the case may be.
(b) Annual Opinion of Counsel. The
Transferor will deliver to the Agent and each Senior Class
Agent each Opinion of Counsel required to be delivered to
the Trustee pursuant to subsection 13.2(d)(ii) of the
Master Pooling and Servicing Agreement concurrently with
the delivery of such Opinion of Counsel to the Trustee.
ARTICLE IV
INDEMNIFICATION; EXPENSES; RELATED MATTERS
SECTION 1 Indemnities by the Transferor.
Without limiting any other rights which the Agent, the
Senior Class Agents, the Senior Class Conduits or the Bank
Investors may have hereunder or under applicable law, the
Transferor hereby agrees to indemnify the Senior Class
Conduits, the Bank Investors, the Agent, the Senior Class
Agent, the Collateral Agents, each Program Support Provider
and any successors and permitted assigns and any of their
respective officers, directors and employees (collectively,
the "Indemnified Parties") from and against any and all
damages, losses, claims, liabilities, costs and expenses,
including, without limitation, reasonable attorneys' fees
(which such attorneys may be employees of a Program Support
Provider, the Agent, a Senior Class Agent or a Collateral
Agent, as applicable) and disbursements (all of the fore-
going being collectively referred to as "Indemnified
Amounts") awarded against or incurred by any Indemnified
Party in any action or proceeding between the Transferor or
the Servicer and any of the Indemnified Parties or between
any of the Indemnified Parties and any third party arising
out of or as a result of this Agreement, the other Transac-
tion Documents, the ownership or maintenance, either di-
rectly or indirectly, by the Agent, any Senior Class Agent,
any Senior Class Conduit or any Bank Investor of the Senior
Class Certificates or any of the other transactions contem-
plated hereby or thereby, excluding, however, (i) Indemni-
fied Amounts to the extent resulting from gross negligence
or willful misconduct on the part of such Indemnified
Party, (ii) recourse (except as otherwise specifically
provided in this Agreement) for amounts due under the
Receivables which are uncollectible and (iii) Indemnified
Amounts specifically excluded from coverage under Section
4.2. Without limiting the generality of the foregoing, the
Transferor shall indemnify each Indemnified Party for
Indemnified Amounts relating to or resulting from:
(i) any representation or war-
ranty made by the Transferor, any Eligible
Originator or the Servicer or any officer of the
Transferor, any Eligible Originator or the Ser-
vicer under or in connection with this Agree-
ment, any Receivables Purchase Agreement, any of
the other Transaction Documents or any other in-
formation or report delivered by the Transferor
or the Servicer pursuant hereto or thereto,
which shall have been false or incorrect in any
material respect when made or deemed made;
(ii) the failure by the Trans-
feror, any Eligible Originator or the Servicer
to comply with any applicable law, rule or
regulation with respect to any Receivable or the
related Account, or the nonconformity of any
Receivable or the related Account with any such
applicable law, rule or regulation;
(iii) the failure to vest and
maintain vested in the Trustee, on behalf of the
Trust, an undivided first priority, perfected
percentage ownership or security interest in the
Trust Property free and clear of any Lien (ex-
cept as expressly permitted by the Transaction
Documents);
(iv) the failure to file, or any
delay in filing, financing statements, continu-
ation statements, or other similar instruments
or documents under the UCC of any applicable
jurisdiction or other applicable laws with re-
spect to any of the Trust Property;
(v) any dispute, claim, offset
or defense (other than discharge in bankruptcy)
of the Obligor to the payment of any Receivable
(including, without limitation, a defense based
on such Receivable or the related Account not
being the legal, valid and binding obligation of
such Obligor enforceable against it in accor-
dance with its terms), or any other claim re-
sulting from the sale of merchandise or services
related to such Receivable or the furnishing or
failure to furnish such merchandise or services;
(vi) any failure of the Servicer
to perform its duties or obligations in accor-
dance with the provisions of the Master Pooling
and Servicing Agreement and the Series Supple-
ment; or
(vii) any products liability
claim or personal injury or property damage suit
or other similar or related claim or action of
whatever sort arising out of or in connection
with merchandise or services which are the
subject of any Receivable;
(viii) the transfer of an owner-
ship interest in any Receivable other than an
Eligible Receivable as defined in the Master
Pooling and Servicing Agreement;
(ix) the failure by the Trans-
feror, any Eligible Originator or the Servicer
to comply with any term, provision or covenant
contained in this Agreement or any of the other
Transaction Documents to which it is a party or
to perform any of its respective duties under
the Accounts;
(x) the failure of any Eligible
Originator to pay when due any taxes, including
without limitation, sales, excise or personal
property taxes payable in connection with any of
the Receivables;
(xi) any repayment by any Indem-
nified Party of any amount previously distrib-
uted in reduction of the Senior Class Investor
Amount which such Indemnified Party believes in
good faith is required to be made;
(xii) the commingling by the
Transferor, any Eligible Originator or the Ser-
vicer of Collections of Receivables at any time
with other funds;
(xiii) any investigation, liti-
gation or proceeding related to this Agreement,
any of the other Transaction Documents, the use
of proceeds of the acquisition of interests in
the Senior Class Certificates by the Transferor,
the ownership of the Senior Class Certificates
or any Trust Property;
(xiv) any inability to obtain
any judgment in or utilize the court or other
adjudication system of, any state in which an
Obligor may be located as a result of the fail-
ure of the Transferor or any Eligible Originator
to qualify to do business or file any notice of
business activity report or any similar report;
(xv) any failure of the Trans-
feror to give reasonably equivalent value to an
Eligible Originator in consideration of the pur-
chase by the Transferor from such Eligible
Originator of any Receivable, or any attempt by
any Person to void, rescind or set-aside any
such transfer under statutory provisions or
common law or equitable action, including,
without limitation, any provision of the Bank-
ruptcy Code; or
(xvi) any action taken by the
Transferor, any Eligible Originator or the Ser-
vicer in the enforcement or collection of any
Receivable;
provided, however, that if the Senior Class Conduits enter
into agreements for the purchase of certificates represent-
ing interests in amounts due under receivables or of inter-
ests in receivables from one or more Other Transferors, the
Senior Class Conduits shall allocate such Indemnified
Amounts which are in connection with a Program Support
Agreement or the program support furnished by a Program Su-
pport Provider among the Transferor and each Other Trans-
feror; and provided, further, that if such Indemnified
Amounts are attributable to the Transferor or the Servicer
and not attributable to any Other Transferor, the Trans-
feror shall be solely liable for such Indemnified Amounts
or if such Indemnified Amounts are attributable to Other
Transferors and not attributable to the Transferor or the
Servicer, such Other Transferors shall be solely liable for
such Indemnified Amounts.
SECTION 2 Indemnity for Taxes, Reserves and
Expenses. (a) If after the date hereof, the adoption of
any Law or bank regulatory guideline or any amendment or
change in the interpretation of any existing or future Law
or bank regulatory guideline by any Official Body charged
with the administration, interpretation or application
thereof, or the compliance with any directive of any
Official Body (in the case of any bank regulatory guide-
line, whether or not having the force of law):
(i) shall subject any Indemni-
fied Party to any tax, duty or other charge
(other than Excluded Taxes) with respect to this
Agreement, the other Transaction Documents, the
ownership, maintenance or financing of the
Senior Class Certificates, the Receivables or
payments of amounts due hereunder, or shall
change the basis of taxation of payments to any
Indemnified Party of amounts payable in respect
of this Agreement, the other Transaction Docu-
ments, the ownership, maintenance or financing
of the Senior Class Certificates, the Receiva-
bles or payments of amounts due hereunder or its
obligation to advance funds hereunder, under a
Program Support Agreement or otherwise in re-
spect of this Agreement, the other Transaction
Documents, the ownership, maintenance or fi-
nancing of the Senior Class Certificates or the
Receivables (except for changes in the rate of
general corporate, franchise, net income or
other income tax imposed on such Indemnified
Party by the jurisdiction in which such Indem-
nified Party's principal executive office is
located);
(ii) shall impose, modify or
deem applicable any reserve, special deposit or
similar requirement (including, without limita-
tion, any such requirement imposed by the Board
of Governors of the Federal Reserve System other
than any such requirement used in determining
the Adjusted LIBOR Rate) against assets of, de-
posits with or for the account of, or credit ex-
tended by, any Indemnified Party or shall impose
on any Indemnified Party or on the London inter-
bank market any other condition affecting this
Agreement, the other Transaction Documents, the
ownership, maintenance or financing of the
Senior Class Certificates, the Receivables or
payments of amounts due hereunder or its obliga-
tion to advance funds hereunder, under a Program
Support Agreement or otherwise in respect of
this Agreement, the other Transaction Documents,
the ownership, maintenance or financing of the
Senior Class Certificates or the Receivables; or
(iii) imposes upon any Indemni-
fied Party any other expense (including, without
limitation, reasonable attorneys' fees and
expenses, and expenses of litigation or prepara-
tion therefor in contesting any of the fore-
going) with respect to this Agreement, the other
Transaction Documents, the ownership, mainte-
▇▇▇▇▇ or financing of the Senior Class Certifi-
▇▇▇▇▇, the Receivables or payments of amounts
due hereunder or its obligation to advance funds
hereunder, under a Program Support Agreement or
otherwise in respect of this Agreement, the
other Transaction Documents, the ownership,
maintenance or financing of the Senior Class
Certificates or the Receivables,
and the result of any of the foregoing is to increase the
cost to such Indemnified Party with respect to this
Agreement, the other Transaction Documents, the ownership,
maintenance or financing of the Senior Class Certificates,
the Receivables, the obligations hereunder, the funding of
any purchases hereunder, a Program Support Agreement, by an
amount deemed by such Indemnified Party to be material,
then, within ten (10) days after demand by such Indemnified
Party through the Agent, the Transferor shall pay to the
Agent, for the benefit of such Indemnified Party, such
additional amount or amounts as will compensate such
Indemnified Party for such increased cost or reduction.
(b) If any Indemnified Party shall have
determined that after the date hereof, the adoption of any
applicable Law or bank regulatory guideline regarding
capital adequacy, or any change therein, or any change in
the interpretation thereof by any Official Body, or any
directive regarding capital adequacy (in the case of any
bank regulatory guideline, whether or not having the force
of law) of any such Official Body, has or would have the
effect of reducing the rate of return on capital of such
Indemnified Party (or its parent) as a consequence of such
Indemnified Party's obligations hereunder or with respect
hereto to a level below that which such Indemnified Party
(or its parent) could have achieved but for such adoption,
change, request or directive (taking into consideration its
policies with respect to capital adequacy) by an amount
deemed by such Indemnified Party to be material, then from
time to time, within ten (10) days after demand by such
Indemnified Party through the Agent, the Transferor shall
pay to the Agent, for the benefit of such Indemnified
Party, such additional amount or amounts as will compensate
such Indemnified Party (or its parent) for such reduction.
(c) Each Senior Class Agent will notify the
Agent and the Agent will promptly notify the Transferor of
any event of which it has knowledge, occurring after the
date hereof, which will entitle an Indemnified Party to
compensation pursuant to this Section. A notice by the
Agent or the applicable Indemnified Party claiming compen-
sation under this Section and setting forth the additional
amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In deter-
mining such amount, the Agent or any applicable Indemnified
Party may use any reasonable averaging and attributing
methods.
(d) Anything in this Section 4.2 to the
contrary notwithstanding, if a Senior Class Conduit enters
into agreements for the acquisition of certificates
representing interests in other receivables from one or
more Other Transferors, such Senior Class Conduit shall
allocate the liability for any amounts under this Section
which are in connection with a Program Support Agreement or
the program support provided by a Program Support Provider
("Section 4.2 Costs") to the Transferor and each Other
Transferor; provided, however, that if such Section 4.2
Costs are attributable to the Transferor, an Eligible
Originator or the Servicer and not attributable to any
Other Transferor, the Transferor shall be solely liable for
such Section 4.2 Costs or if such Section 4.2 Costs are at-
tributable to Other Transferors and not attributable to the
Transferor, an Eligible Originator or the Servicer, such
Other Transferors shall be solely liable for such Section
4.2 Costs.
SECTION 3 Taxes. All payments made hereunder
by the Transferor or the Servicer (each, a "payor") to any
Senior Class Conduit, any Bank Investor or the Agent (each,
a "recipient") shall be made free and clear of and without
deduction for any present or future income, excise, stamp
or franchise taxes and any other taxes, fees, duties, with-
holdings or other charges of any nature whatsoever imposed
by any taxing authority on any recipient (or any assignee
of such parties) (such non-excluded items being called
"Taxes"), but excluding franchise taxes imposed on net
income (or any interest or penalties with respect thereto)
and taxes imposed on or measured by the recipient's net
income required to be paid by any recipient in connection
herewith to any taxing authority ("Excluded Taxes"). In
the event that any withholding or deduction from any
payment made by the payor hereunder is required in respect
of any Taxes, then such payor shall:
(a) pay directly to the relevant authority
the full amount required to be so withheld or deducted;
(b) promptly forward to the Agent an
official receipt or other documentation satisfactory to the
Agent evidencing such payment to such authority; and
(c) pay to the recipient such additional
amount or amounts as is necessary to ensure that the net
amount actually received by the recipient will equal the
full amount such recipient would have received had no such
withholding or deduction been required.
Moreover, if any Taxes are directly asserted against any
recipient with respect to any payment received by such
recipient hereunder, the recipient shall promptly notify
the Transferor and the Servicer, and the recipient may pay
such Taxes and the payor will promptly pay such additional
amounts (including any penalties, interest or expenses) as
shall be necessary in order that the net amount received by
the recipient after the payment of such Taxes (including
any Taxes on such additional amount) shall equal the amount
such recipient would have received had such Taxes not been
asserted.
If the payor fails to pay any Taxes when due
to the appropriate taxing authority or fails to remit to
the recipient the required receipts or other required docu-
mentary evidence, the payor shall indemnify the recipient
for any incremental Taxes, interest, or penalties that may
become payable by any recipient as a result of any such
failure.
SECTION 4 Other Costs, Expenses and Related
Matters.
(a) The Transferor agrees, upon receipt of
a written invoice in reasonable detail, to pay or cause to
be paid, and to save the Senior Class Conduits, the Bank
Investors, the Senior Class Agents and the Agent harmless
against liability for the payment of, all reasonable out-of-pocket
expenses (including, without limitation,
attorneys', accountants' and other third parties' fees and
expenses, any filing fees and expenses incurred by officers
or employees of the Senior Class Conduits, the Bank Inves-
tors, the Agent and/or the Senior Class Agents) or intangi-
ble, documentary or recording taxes incurred by or on
behalf of any Senior Class Conduit, any Bank Investor, the
Agent and any Senior Class Agent (i) in connection with the
negotiation, execution, delivery and preparation of this
Agreement, the other Transaction Documents and any docu-
ments or instruments delivered pursuant hereto and thereto
and the transactions contemplated hereby or thereby, and
(ii) from time to time (a) relating to any amendments,
waivers or consents under this Agreement and the other
Transaction Documents, (b) arising in connection with any
Senior Class Conduit's, any Bank Investor's, the Agent's or
any Senior Class Agent's enforcement or preservation of
rights, or (c) arising in connection with any audit,
dispute, disagreement, litigation or preparation for
litigation involving this Agreement or any of the other
Transaction Documents (all of such amounts, collectively,
"Transaction Costs").
(b) The Transferor shall pay to each Senior
Class Agent, for the account of the related Senior Class
Conduit and Bank Investors, as applicable, on demand any
Early Collection Fee due on account of the receipt by a
Senior Class Conduit or Bank Investor of any amounts
applied in reduction of the Senior Class Investor Amount on
any day other than the last day of any applicable funding
period.
SECTION 5 Indemnification by Servicer. The
Servicer shall indemnify and hold harmless each Indemnified
Party from and against any loss, liability, expense, damage
or injury suffered or sustained by reason of willful
misfeasance, bad faith, or negligence in the performance of
the duties of the Servicer or by reason of reckless
disregard of obligations and duties of the Servicer
hereunder or under the Master Pooling and Servicing
Agreement or by reason of any acts, omissions or alleged
acts or omissions of the Servicer pursuant to this Agree-
ment or the Master Pooling and Servicing Agreement;
provided, however, that the Servicer shall not indemnify
any such Indemnified Party for any such loss, liability,
expense, damage or injury suffered or sustained by reason
of any action taken or omitted at the written request of
such Indemnified Party; and provided, further, that the
Servicer shall not indemnify any such Indemnified Party for
any such loss, liability, expense, damage or injury
incurred with respect to any action taken by such Indemni-
fied Party constituting fraud, gross negligence, breach of
fiduciary duty or willful misconduct, with respect to the
uncollectibility of the Receivables or with respect to any
federal, state or local income or franchise taxes (or any
interest or penalties with respect thereto) required to be
paid by any such Indemnified Party in connection herewith
to any taxing authority. The Servicer shall not be liable
for acts or omissions of any Successor Servicer. The
provisions of this indemnity shall run directly to and be
enforceable by an injured party subject to the limitations
hereof.
ARTICLE V
THE AGENT; BANK COMMITMENT; SENIOR CLASS AGENTS
SECTION 1 Authorization and Action of Agent.
(a) Each Senior Class Conduit and each Bank
Investor hereby appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such
powers under this Agreement and the other Transaction
Documents as are delegated to the Agent by the terms hereof
and thereof, together with such powers as are reasonably
incidental thereto. In furtherance, and without limiting
the generality of the foregoing, each Senior Class Conduit
and each Bank Investor hereby appoints the Agent as its
agent to execute and deliver all further instruments and
documents, and take all further action that the Agent may
deem necessary or appropriate or that a Senior Class
Conduit or a Bank Investor may reasonably request in order
to perfect, protect or more fully evidence the interests
transferred or to be transferred from time to time by the
Transferor hereunder, or to enable any of them to exercise
or enforce any of their respective rights hereunder. The
Senior Class Agents jointly may direct the Agent to take
any such incidental action hereunder. With respect to
other actions which are incidental to the actions specif-
ically delegated to the Agent hereunder, the Agent shall
not be required to take any such incidental action hereun-
der, but shall be required to act or to refrain from acting
(and shall be fully protected in acting or refraining from
acting) upon the joint direction of the Senior Class
Agents; provided, however, that the Agent shall not be re-
quired to take any action hereunder if the taking of such
action, in the reasonable determination of the Agent, shall
be in violation of any applicable law, rule or regulation
or contrary to any provision of this Agreement or shall
expose the Agent to liability hereunder or otherwise. Upon
the occurrence and during the continuance of any Pay Out
Event or Potential Pay Out Event, the Agent shall take no
action hereunder (other than ministerial actions or such
actions as are specifically provided for herein) without
the prior consent of the Required Investor Certificatehold-
ers. The Agent shall not, without the prior written con-
sent of each Senior Class Agent and Bank Investor, agree to
(i) amend, modify or waive any provision of this Agreement
in any way which would (A) reduce or impair Collections or
the payment of fees payable hereunder to the Senior Class
Conduits or the Bank Investors or delay the scheduled dates
for payment of such amounts, (B) increase the Servicing Fee
Percentage, (C) modify any provisions of this Agreement,
the Master Pooling and Servicing Agreement or the Series
Supplement relating to the timing of payments required to
be made by the Transferor or the Servicer or the applica-
tion of the proceeds of such payments, (D) the appointment
of any Person (other than the Trustee) as successor
Servicer, (E) release any property from the lien provided
by this Agreement (other than as expressly contemplated
herein), or (F) modify Section 3.4(d) hereof or the defini-
tion of "Minimum Enhancement Amount" in the Series Supple-
ment or the definitions of "Defaulted Account" or "Eligible
Receivable" in the Master Pooling and Servicing Agreement.
The Agent shall not agree to any amendment of or waiver
under this Agreement which increases the dollar amount of
a Bank Investor's Commitment without the prior written
consent of such Bank Investor. In addition, the Agent
shall not agree to any amendment of or waiver under this
Agreement not specifically described in the two preceding
sentences without the consent of the Required Investor
Certificateholders. In the event the Agent requests a
Senior Class Agent's, a Senior Class Conduit's or a Bank
Investor's consent pursuant to the foregoing provisions and
the Agent does not receive a response (either positive or
negative) from such Senior Class Agent, Senior Class Con-
duit or Bank Investor within 10 Business Days of such
Person's receipt of such request, then such Senior Class
Agent, Senior Class Conduit or Bank Investor (and its
percentage interest hereunder, if applicable) shall be
disregarded in determining whether the Agent shall have
obtained sufficient consent hereunder.
(b) The Agent shall exercise such rights
and powers vested in it by this Agreement and the other
Transaction Documents, and use the same degree of care and
skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of such
person's own affairs.
SECTION 2 Agent's Reliance, Etc. Neither the
Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted
to be taken by it or them as Agent under or in connection
with this Agreement or any of the other Transaction
Documents, except for its or their own gross negligence or
willful misconduct. Without limiting the foregoing, the
Agent: (i) may consult with legal counsel (including
counsel for the Transferor or the Servicer), independent
public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of
such counsel, accountants or experts; (ii) makes no
warranty or representation to any Senior Class Conduit or
Bank Investor and shall not be responsible to any Senior
Class Conduit or Bank Investor for any statements, warran-
ties or representations made in or in connection with this
Agreement; (iii) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement or any of
the other Transaction Documents on the part of the Trans-
feror or the Servicer or to inspect the property (including
the books and records) of the Transferor or the Servicer;
(iv) shall not be responsible to any Senior Class Conduit
or any Bank Investor for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value
of this Agreement, any of the other Transaction Documents
or any other instrument or document furnished pursuant
hereto or thereto; and (v) shall incur no liability under
or in respect of this Agreement or any of the other
Transaction Documents by acting upon any notice (including
notice by telephone), consent, certificate or other
instrument or writing (which may be by telex or facsimile)
believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 3 Credit Decision. Each Senior Class
Conduit and Bank Investor acknowledges that it has,
independently and without reliance upon the Agent, any of
the Agent's Affiliates, any other Bank Investor or any
other Senior Class Conduit and based upon such documents
and information as it has deemed appropriate, made its own
evaluation and decision to enter into this Agreement and
the other Transaction Documents to which it is a party and,
if it so determines, to accept the transfer of all or any
portion of the Senior Class Certificates. Each Senior
Class Conduit and Bank Investor also acknowledges that it
will, independently and without reliance upon the Agent,
any of the Agent's Affiliates, any other Bank Investor or
any other Senior Class Conduit and based on such documents
and information as it shall deem appropriate at the time,
continue to make its own decisions in taking or not taking
action under this Agreement and the other Transaction
Documents to which it is a party.
SECTION 4 Indemnification of the Agent. Each
Bank Investor agrees to indemnify the Agent (to the extent
not reimbursed by the Transferor), ratably (and not
jointly) in accordance with their respective Commitments,
from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or
asserted against the Agent (in its capacity as such) in any
way relating to or arising out of this Agreement and the
other Transaction Documents or any action taken or omitted
by the Agent hereunder or thereunder, provided that a Bank
Investor shall not be liable for any portion of such
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, the Bank
Investors agree to reimburse the Agent, ratably (and not
jointly) in accordance with their respective Commitments,
promptly upon demand for any out-of-pocket expenses
(including counsel fees) incurred by the Agent (in its
capacity as such) in connection with the enforcement
(whether through negotiations, legal proceedings or other-
wise) of, or legal advice in respect of rights or respon-
sibilities under, this Agreement and the other Transaction
Documents, to the extent that such expenses are incurred in
the interests of or otherwise in respect of the Senior
Class Conduits or the Bank Investors hereunder and/or
thereunder and to the extent that the Agent is not ▇▇▇▇-
bursed for such expenses by the Transferor.
SECTION 5 Successor Agent. The Agent may
resign at any time, effective upon the appointment and
acceptance of a successor Agent as provided below, by
giving written notice thereof to each Senior Class Agent,
each Senior Class Conduit, each Bank Investor, the Trans-
feror and the Servicer and may be removed at any time with
cause by holders of more than 50% of the aggregate Senior
Class Investor Amounts. Upon any such resignation or
removal, the Required Investor Certificateholders shall ap-
point a successor Agent. Each Senior Class Conduit and
each Bank Investor agrees that it shall not unreasonably
withhold or delay its approval of the appointment of a suc-
cessor Agent. If no such successor Agent shall have been
so appointed, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving of notice
of resignation or the holders of more than 50% of the
aggregate Senior Class Investor Amounts removal of the
retiring Agent then the retiring Agent may, on behalf of
the Senior Class Conduits and the Bank Investors, appoint
a successor Agent which successor Agent shall be either (i)
a commercial bank organized under the laws of the United
States or of any state thereof and have a combined capital
and surplus of at least $50,000,000 or (ii) an Affiliate of
such a bank. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its
duties and obligations under this Agreement. After any
retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article V shall continue to inure to
its benefit as to any actions taken or omitted to be taken
by it while it was Agent under this Agreement. The
successor agent shall promptly notify the Transferor and
the Servicer of its appointment hereunder.
SECTION 6 Payments by the Agent. Unless
specifically allocated to a Bank Investor or a Senior Class
Conduit pursuant to the terms of this Agreement, all
amounts received by the Agent, if any, on behalf of the
Senior Class Conduits or the Bank Investors shall be paid
by the Agent to the applicable Senior Class Agent (at the
account specified on the signature pages hereto or as may
be specified in writing to the Agent) in accordance with
their respective related pro rata interests in the Senior
Class Investor Amount on the Business Day received by the
Agent, unless such amounts are received after 12:00 noon on
such Business Day, in which case the Agent shall use its
reasonable efforts to pay such amounts to the Senior Class
Conduits or Bank Investors on such Business Day, but, in
any event, shall pay such amounts to the Senior Class Con-
duits or Bank Investors in accordance with their respective
related pro rata interests in the Senior Class Investor
Amount not later than the following Business Day.
SECTION 7 Bank Commitment; Assignment to Bank
Investors.
(a) Bank Commitment. At any time prior to
the Commitment Termination Date and prior to the Termina-
tion Date (excluding a "Termination Date" occurring as a
result of clause (iv) or (v) of the definition of "Termina-
tion Date"), in the event that any Senior Class Conduit
does not acquire an Additional Investor Amount as requested
under Section 2.2(a), then at any time, the Transferor
shall have the right to require such Senior Class Conduit
to assign its interests in the Senior Class Certificate
Principal Balance in whole to the related Bank Investors
pursuant to this Section 5.7. In addition, at any time
prior to the Commitment Termination Date (i) upon the
occurrence of a Pay Out Event, a Senior Class Agent may re-
quest that the related Senior Class Conduit assign its
interest in the Senior Class Certificate Principal Balance
in whole to the related Bank Investors pursuant to this
Section 5.7, and (ii) if a Senior Class Conduit gives
notice to the Transferor of a Reinvestment Termination Date
and requests that its interest in the Senior Class Certifi-
cate Principal Balance be assigned to the related Bank
Investors, such interest shall be assigned in whole to the
related Bank Investors pursuant to this Section 5.7, and,
in each case, the Transferor hereby agrees to pay the
amounts described in Section 5.7(d) below. Provided that
the Net Asset Test is satisfied with respect to the related
Senior Class, upon any such notice by a Senior Class Agent
or a Senior Class Conduit, the applicable Senior Class Con-
duit shall make such Assignment and the related Bank Inves-
tors shall accept such Assignment and shall assume all of
the applicable Senior Class Conduit's obligations hereun-
der. In connection with any Assignment from a Senior Class
Conduit to the related Bank Investors pursuant to this Sec-
tion, each Bank Investor shall, on the date of such As-
signment, pay to such Senior Class Conduit an amount equal
to its Assignment Amount. Consent of the Transferor shall
in no event be required in order for any Senior Class
Conduit to assign any interest in the Senior Class Certifi-
cate Principal Balance to the related Bank Investors. Upon
any Assignment by a Senior Class Conduit to the related
Bank Investors contemplated hereunder, such Senior Class
Conduit shall cease to acquire any Additional Investor
Amounts hereunder.
(b) Assignment. No Bank Investor may
assign all or a portion of its interests in the Senior
Class Certificates, the Senior Class Certificate Principal
Balance, the Trust Property or its rights and obligations
hereunder to any Person unless approved in writing by the
Agent, the related Senior Class Agent and the Transferor
(in each case such approval not to be unreasonably withheld
or delayed) and made in accordance with the Master Pooling
and Servicing Agreement and the Series Supplement. In the
case of an Assignment by a Senior Class Conduit to the
related Bank Investors or by a Bank Investor to another
Person, the assignor shall deliver to the assignee(s) an
Assignment and Assumption Agreement in substantially the
form of Exhibit B hereto, duly executed, assigning to the
assignee a pro rata interest in the Senior Class Certifi-
▇▇▇▇▇, the Senior Class Certificate Principal Balance, the
Trust Property and the assignor's rights and obligations
hereunder and the assignor shall promptly execute and
deliver all instruments and documents required by the
Master Pooling and Servicing Agreement and the Series
Supplement and all further instruments and documents, and
take all further action, that the assignee may reasonably
request, in order to protect, or more fully evidence the
assignee's right, title and interest in and to such
interest and to enable the Agent, on behalf of such
assignee, to exercise or enforce any rights hereunder and
under the other Transaction Documents to which such
assignor is or, immediately prior to such Assignment, was
a party. Upon any such Assignment, (i) the assignee shall
have all of the rights and obligations of the assignor
hereunder and under the other Transaction Documents to
which such assignor is or, immediately prior to such
Assignment, was a party with respect to such interest for
all purposes of this Agreement and under the other Transac-
tion Documents to which such assignor is or, immediately
prior to such Assignment, was a party (it being understood
that the Bank Investors, as assignees, shall (x) be
obligated to acquire Additional Investor Amounts under Sec-
tion 2.2(a) hereof in accordance with the terms thereof,
notwithstanding that the Senior Class Conduits were not so
obligated and (y) not have the right (in the absence of a
Pay Out Event) to elect not to maintain the related Senior
Class Investor Amount, notwithstanding that the Senior
Class Conduits had such right), and (ii) the assignor shall
relinquish its rights with respect to such interest for all
purposes of this Agreement and under the other Transaction
Documents to which such assignor is or, immediately prior
to such Assignment, was a party. No such Assignment shall
be effective unless a fully executed copy of the related
Assignment and Assumption Agreement shall be delivered to
the Agent and the Transferor. All reasonable out-of-pocket
costs and reasonable legal expenses of the Agent and the
initial Bank Investors hereto incurred in connection with
any Assignment hereunder shall be borne by the Transferor.
No Bank Investor shall assign any portion of its Commitment
hereunder without also simultaneously assigning an equal
portion of its interest in the applicable Program Support
Agreement.
(c) Effects of Assignment. By executing
and delivering an Assignment and Assumption Agreement, the
assignor and assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i)
other than as provided in such Assignment and Assumption
Agreement, the assignor makes no representation or warranty
and assumes no responsibility with respect to any state-
ments, warranties or representations made in or in con-
nection with this Agreement, the other Transaction Docu-
ments or any other instrument or document furnished pursu-
ant hereto or thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this
Agreement, the other Transaction Documents or any such
other instrument or document; (ii) the assignor makes no
representation or warranty and assumes no responsibility
with respect to the financial condition of the Transferor
or the Servicer or the performance or observance by the
Transferor or the Servicer of any of their respective obli-
gations under this Agreement, the other Transaction Docu-
ments or any other instrument or document furnished pursu-
ant hereto; (iii) such assignee confirms that it has re-
ceived a copy of this Agreement, the Master Pooling and
Servicing Agreement, the Series Supplement and such other
instruments, documents and information as it has deemed
appropriate to make its own credit analysis and decision to
enter into such Assignment and Assumption Agreement and to
purchase such interest; (iv) such assignee will, indepen-
dently and without reliance upon the Agent, or any of its
Affiliates, or the assignor and based on such agreements,
documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the
other Transaction Documents; (v) such assignee appoints and
authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement,
the other Transaction Documents and any other instrument or
document furnished pursuant hereto or thereto as are
delegated to the Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental
thereto and to enforce its respective rights and interests
in and under this Agreement, the other Transaction Docu-
ments and the Trust Property; (vi) such assignee agrees
that it will perform in accordance with their terms all of
the obligations which by the terms of this Agreement and
the other Transaction Documents are required to be per-
formed by it as the assignee of the assignor; and (vii)
such assignee agrees that it will not institute against any
Senior Class Conduit any proceeding of the type referred to
in Section 6.9 prior to the date which is one year and one
day after the payment in full of all Commercial Paper
issued by any Senior Class Conduit.
(d) Transferor's Obligation to Pay Certain
Amounts; Additional Assignment Amount. The Transferor
shall pay to the related Senior Class Agent, for the ac-
count of the related Senior Class Conduit, in connection
with any Assignment by a Senior Class Conduit to the
related Bank Investors pursuant to this Section 5.7, an
amount equal to all Carrying Costs to accrue through the
maturity of all outstanding Related Commercial Paper. To
the extent that such Carrying Costs relate to interest or
discount on Commercial Paper issued to fund the related
Senior Class Certificate Principal Balance, if the Trans-
feror fails to make payment of such amounts at or prior to
the time of Assignment by a Senior Class Conduit to the
related Bank Investors, such amount shall be paid by such
Bank Investors (in accordance with their respective Bank
Pro Rata Shares) to the Senior Class Conduit as additional
consideration for the interests assigned to the Bank Inves-
tors and the amount of the "Senior Class Certificate
Principal Balance" of the Senior Class Certificates held by
the Bank Investors and the "Senior Class Investor Amount"
of the related Senior Class shall be increased by an amount
equal to the additional amount so paid by the Bank Inves-
tors.
(e) Payments. After any Assignment by the
Senior Class Conduit to the related Bank Investors pursuant
to this Agreement, all payments to be made hereunder by the
Transferor or the Servicer to the related Senior Class
Agent for the benefit of the related Senior Class Conduit
shall be made to the related Senior Class Agent's account
as such account shall have been notified to the Transferor
and the Servicer for the benefit of the related Bank Inves-
tors. After any such Assignment, the related Bank Inves-
tors shall be obligated to pay to the related assigning
Senior Class Conduit an amount equal the aggregate amount
of Senior Class Investor Charge Offs allocated to such
Senior Class for all Distribution Dates prior to the date
of such Assignment, which were not reimbursed pursuant to
Section 4.4(a) of the Master Pooling and Servicing Agree-
ment, as supplemented by the Series Supplement, prior to
such date.
(f) Downgrade of Bank Investor. If at any
time prior to any Assignment by a Senior Class Conduit to
the related Bank Investors as contemplated pursuant to this
Section, the short term debt rating of any Bank Investor
shall be "A-2" or "P-2" from Standard & Poor's or ▇▇▇▇▇'▇,
respectively, with negative credit implications, such Bank
Investor, upon request of the related Senior Class Agent,
shall, at its own expense, within 30 days of such request,
assign its rights and obligations hereunder to another
financial institution (which institution's short term debt
shall be rated at least "A-2" and "P-2" from Standard &
Poor's or ▇▇▇▇▇'▇, respectively, and which shall not be so
rated with negative credit implications). If the short
term debt rating of a Bank Investor shall be "A-3" or "P-3", or
lower, from Standard & Poor's or ▇▇▇▇▇'▇, respec-
tively (or such rating shall have been withdrawn by
Standard & Poor's or ▇▇▇▇▇'▇), such Bank Investor, upon re-
quest of the related Senior Class Agent, shall, within five
(5) Business Days of such request, at its own expense,
assign its rights and obligations hereunder to another
financial institution (which institution's short term debt
shall be rated at least "A-2" and "P-2" from Standard &
Poor's and ▇▇▇▇▇'▇, respectively, and which shall not be so
rated with negative credit implications). In either such
case, if any such Bank Investor shall not have assigned its
rights and obligations under this Agreement within the
applicable time period described above, the related Senior
Class Conduit or the Transferor shall have the right to re-
quire such Bank Investor to accept the Assignment of the
Bank Pro Rata Share for such Bank Investor of the related
Senior Class Investor Amount; such Assignment shall occur
in accordance with the applicable provisions of this Sec-
tion. Such Bank Investor shall be obligated to pay to the
related Senior Class Conduit, in connection with such
Assignment, in addition to the Bank Pro Rata Share of the
related Senior Class Investor Amount, an amount equal to
the interest component of the outstanding Commercial Paper
issued to fund the portion of the related Senior Class
Investor Amount being assigned to such Bank Investor, as
reasonably determined by the Agent. Notwithstanding any-
thing contained herein to the contrary, upon any such
Assignment to a downgraded Bank Investor as contemplated
pursuant to the immediately preceding sentence, the
aggregate available amount of the related Senior Class
Facility Limit, solely as it relates to the acquisition of
any Additional Investor Amount by the related Senior Class
Conduit, shall be reduced by the amount of the unused
Commitment of such downgraded Bank Investor; it being
understood and agreed, that nothing in this sentence or the
two preceding sentences shall affect or diminish in any way
any such downgraded Bank Investor's Commitment to the
Transferor or such downgraded Bank Investor's other obliga-
tions and liabilities hereunder and under the other
Transaction Documents. The related Senior Class Agent
shall give the Agent and the Transferor prompt written
notice of any Assignment to a Bank Investor pursuant to
this Section 5.7.
SECTION 8 Authorization and Action of Senior
Class Agent.
(a) Each of the Senior Class Conduits and
related Bank Investors of each Class hereby appoints and
authorizes the Senior Class Agent with respect to such
Class to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated
to the Senior Class Agent by the terms hereof, together
with such powers as are reasonably incidental thereto. In
furtherance, and without limiting the generality, of the
foregoing, each of the Senior Class Conduits and related
Bank Investors hereby appoint the related Senior Class
Agent as their agent to execute and deliver all further
instruments and documents, and take all further action that
the related Senior Class Agent may deem necessary or appro-
priate or that the related Senior Class Conduit or Bank
Investors may reasonably request in order to perfect,
protect or more fully evidence the interests transferred or
to be transferred from time to time by the Transferor
hereunder, or to enable any of them to exercise or enforce
any of their respective rights hereunder or under the
Senior Class Certificates, and such other instruments or
notices, as may be necessary or appropriate for the
purposes stated hereinabove. With respect to actions which
are incidental to the actions specifically delegated to the
Agent hereunder, the Majority Investors may direct the
related Senior Class Agent to direct the Agent to take any
such incidental action hereunder and the approval of the
Majority Investors is required to direct and/or approve the
related Senior Class Agent's decision to remove the Agent
pursuant to Section 5.5. The Majority Investors may direct
the related Senior Class Agent to direct the Agent not to
take or to cease taking any action which is incidental to
the actions specifically delegated to the Agent hereunder.
With respect to other actions which are incidental to the
actions specifically delegated to a Senior Class Agent
hereunder, a Senior Class Agent shall not be required to
take any such incidental action hereunder, but shall be re-
quired to act or to refrain from acting (and shall be fully
protected in acting or refraining from acting) upon the
direction of the related Majority Investors; provided,
however, that no Senior Class Agent shall be required to
take any action hereunder if the taking of such action, in
the reasonable determination of such Senior Class Agent,
shall be in violation of any applicable law, rule or
regulation or contrary to any provision of this Agreement
or shall expose such Senior Class Agent to liability here-
under or otherwise. Upon the occurrence and during the
continuance of any Pay Out Event or Potential Pay Out
Event, the Senior Class Agent shall take no action hereun-
der (other than ministerial actions or such actions as are
specifically provided for herein) without the prior consent
of each related Investor. Unless otherwise provided
herein, the Senior Class Agent shall not authorize the re-
lease by the Agent of any property conveyed to the Agent by
the Transferor hereunder without the prior consent of the
Majority Investors. The Senior Class Agent shall not,
without the prior written consent of each of the related
Senior Class Conduits (if any interest is held by a Senior
Class Conduit at such time) and Bank Investors, agree to
(i) amend, modify or waive any provision of this Agreement
in any way which would (A) reduce or impair Collections or
the payment of Carrying Costs or fees payable under the
related Fee Letter or delay the scheduled dates for payment
of such amounts, (B) increase the applicable Class Monthly
Servicing Fee, (C) modify any provisions of this Agreement
relating to the timing of payments required to be made by
the Transferor or the application of the proceeds of such
payments, or (D) the appointment of any Person (other than
the Agent) as Successor Servicer. In addition, each Senior
Class Agent agrees that it shall not agree to any amendment
of or waiver under this Agreement not specifically contem-
plated by the preceding sentence without the consent of the
related Majority Investors. In the event the Senior Class
Agent requests a Person's consent pursuant to the foregoing
provisions and the Senior Class Agent does not receive a
consent (either positive or negative) from such Person
within 10 Business Days of such Person's receipt of such
request, then such Person (and its percentage interest
hereunder) shall be disregarded in determining whether the
Senior Class Agent shall have obtained sufficient consent
hereunder.
(b) The Senior Class Agent shall exercise
such rights and powers vested in it by this Agreement, and
use the same degree of care and skill in their exercise, as
a prudent person would exercise or use under the circum-
stances in the conduct of such person's own affairs.
SECTION 9 Senior Class Agents' Reliance, Etc.
Neither any Senior Class Agent nor any of their respective
directors, officers, agents or employees shall be liable
for any action taken or omitted to be taken by it or them
as Senior Class Agent under or in connection with this
Agreement, except for its or their own gross negligence or
willful misconduct. Without limiting the foregoing, the
Senior Class Agent: (i) may consult with legal counsel
(including counsel for the Transferor), independent public
accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such
counsel, accountants or experts; (ii) makes no warranty or
representation to any Senior Class Conduit or Bank Investor
and shall not be responsible to any Senior Class Conduit or
Bank Investor for any statements, warranties or representa-
tions made in or in connection with this Agreement;
(iii) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms,
covenants or conditions of this Agreement on the part of
the Transferor or to inspect the property (including the
books and records) of the Transferor; (iv) shall not be
responsible to any Investor for the due execution, legal-
ity, validity, enforceability, genuineness, sufficiency or
value of this Agreement, the Senior Class Certificates or
any other instrument or document furnished pursuant hereto;
and (v) shall incur no liability under or in respect of
this Agreement by acting upon any notice (including notice
by telephone), consent, certificate or other instrument or
writing (which may be by telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 10 Credit Decision. Each Senior
Class Conduit and Bank Investor acknowledges that it has,
independently and without reliance upon the Senior Class
Agent or any of the Senior Class Agent's Affiliates, and
based upon such documents and information as it has deemed
appropriate, made its own evaluation and decision to enter
into this Agreement and, if it so determines, to accept the
transfer of an interest in a Certificate hereunder. Each
Investor also acknowledges that it will, independently and
without reliance upon the Senior Class Agent or any of the
Senior Class Agent's Affiliates and based on such documents
and information as it shall deem appropriate at the time,
continue to make its own decisions in taking or not taking
action under this Agreement.
SECTION 11 Indemnification of the Senior
Class Agent. Each Bank Investor agrees to indemnify the
related Senior Class Agent (to the extent not reimbursed by
the Transferor), ratably (and not jointly) according to
their respective Commitments, from and against any and all
liabilities, obligations, losses, damages, penalties, ac-
tions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Senior Class Agent in
any way relating to or arising out of this Agreement or any
action taken or omitted by the Senior Class Agent under
this Agreement, provided that a Bank Investor shall not be
liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the related
Senior Class Agent's gross negligence or willful miscon-
duct. Without limitation of the foregoing, each Bank
Investor agrees to reimburse the related Senior Class
Agent, ratably (and not jointly) according to their
respective Commitments, promptly upon demand for any out-of-pocket
expenses (including counsel fees) incurred by
such Senior Class Agent in connection with the modifica-
tion, amendment or enforcement (whether through negoti-
ations, legal proceedings or otherwise) of, or legal advice
in respect of rights or responsibilities under, this Agree-
ment, to the extent that such expenses are incurred in the
interests of or otherwise in respect of the Series 1997-1
Certificates and to the extent that the Senior Class Agent
is not reimbursed for such expenses by the Transferor.
SECTION 12 Successor Senior Class Agent. A
Senior Class Agent may resign at any time by giving written
notice thereof to the Agent, each other Senior Class Agent,
each member of the Class, the Transferor and the Servicer
and may be removed at any time with cause by the related
Senior Class Conduit or Bank Investor. Upon any such
resignation or removal, the members of the related Class
acting jointly shall appoint a successor Senior Class
Agent. Each Senior Class Conduit and Bank Investor agrees
that it shall not unreasonably withhold or delay its
approval of the appointment of a successor Senior Class
Agent. If no such successor Senior Class Agent shall have
been so appointed, and shall have accepted such appoint-
ment, within 30 days after the retiring Senior Class
Agent's giving of notice of resignation or the removal of
the retiring Senior Class Agent, then the retiring Senior
Class Agent may, on behalf of the related Senior Class
Conduits and Bank Investors, appoint a successor Senior
Class Agent which successor agent shall be either (i) a
commercial bank organized under the laws of the United
States or of any state thereof and have a combined capital
and surplus of at least $50,000,000 or (ii) an Affiliate of
such a bank. Upon the acceptance of any appointment as
Senior Class Agent hereunder by a successor Senior Class
Agent, such successor Senior Class Agent shall thereupon
succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Senior Class Agent,
and the retiring Senior Class Agent shall be discharged
from its duties and obligations under this Agreement.
After any retiring Senior Class Agent's resignation or
removal hereunder as Senior Class Agent, the provisions of
this Article V shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Senior
Class Agent under this Agreement. Each successor Senior
Class Agent shall promptly notify the Transferor and the
Servicer of its appointment hereunder.
SECTION 13 Payments by the Senior Class
Agents. Unless specifically allocated to a Senior Class
Conduit or a Bank Investor pursuant to the terms of this
Agreement, all amounts received by the Senior Class Agent
on behalf of the Senior Class Conduit or the Bank Investors
shall be paid by the Senior Class Agent to the Senior Class
Conduit or the Bank Investors, as applicable (at the ac-
counts specified to the Senior Class Agent) in accordance
with their respective related pro rata interests in the
Senior Class Investor Amount on the Business Day received
by the Senior Class Agent, unless such amounts are received
after 12:00 noon on such Business Day, in which case the
Senior Class Agent shall use its reasonable efforts to pay
such amounts on such Business Day, but, in any event, shall
pay such amounts in accordance with their respective
related pro rata interests in the Senior Class Investor
Amount not later than the following Business Day.
ARTICLE VI
MISCELLANEOUS
SECTION 1 Term of Agreement. This Agreement
shall terminate on the date following the Termination Date
upon which all amounts due to the Series 1997-1 Certifi-
cateholders under this Agreement and the other Transaction
Documents have been paid in full; provided, however, that
(i) the rights and remedies of the Agent, the Senior Class
Agents, the Senior Class Conduits and the Bank Investors
with respect to any representation and warranty made or
deemed to be made by the Transferor or the Servicer pursu-
ant to this Agreement, (ii) the indemnification and payment
provisions of Article IV, and (iii) the agreement set forth
in Section 6.9 hereof, shall be continuing and shall
survive any termination of this Agreement.
SECTION 2 Waivers; Amendments. No failure or
delay on the part of the Agent, any Senior Class Agent, any
Senior Class Conduit or any Bank Investor in exercising any
power, right or remedy under this Agreement shall operate
as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any
other further exercise thereof or the exercise of any other
power, right or remedy. The rights and remedies herein
provided shall be cumulative and nonexclusive of any rights
or remedies provided by law. Any provision of this Agree-
ment may be amended in a writing signed by the Transferor,
the Servicer, the Agent, each Senior Class Agent, each
Senior Class Conduit (prior to an assignment in whole by
such Senior Class Conduit of its interest in the related
Senior Class Certificate Principal Balance), and each Bank
Investor and any right or remedy herein provided to the
Agent, any Senior Class Agent, any Senior Class Conduit or
any Bank Investor may be waived in a writing signed by the
Agent and each Senior Class Agent; provided, however, that
(i) any supplement to this Agreement to add an additional
Senior Class Conduit as a party hereto must be signed only
by the Transferor, the Servicer, the Agent, each Senior
Class Agent, such additional Senior Class Conduit and the
Bank Investors related to such Senior Class Conduit, and
(ii) any amendment to the representations, warranties and
covenants of the Servicer in this Agreement in connection
with the appointment of a Successor Servicer shall not re-
quire the consent of the Transferor or the Servicer.
SECTION 3 Notices, Etc. Except where tele-
phonic instructions or notices are authorized herein to be
given, all notices, demands, instructions and other
communications required or permitted to be given to or made
upon any party hereto shall be in writing and shall be sent
by mail or facsimile transmission with a confirmation of
the receipt thereof and shall be deemed to be given for
purposes of this Agreement five (5) days after such mail
has been deposited or, where applicable, on the day that
the receipt of such facsimile transmission is confirmed in
accordance with the provisions of this Section 6.3. Unless
otherwise specified in a notice sent or delivered in accor-
dance with the foregoing provisions of this Section,
notices, demands, instructions and other communications in
writing shall be given to or made upon the respective
parties hereto at their respective addresses or facsimile
numbers indicated on the signature pages hereto, and, in
the case of telephonic instructions or notices, by calling
the telephone number or numbers indicated for such party on
the signature pages hereto or, in the case of a Bank
Investor which becomes a party hereto pursuant to an
Assignment and Assumption Agreement, on the signature page
to the Assignment and Assumption Agreement pursuant to
which it becomes a party hereto.
SECTION 4 Governing Law; Submission to
Jurisdiction; Integration.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. THE TRANSFEROR AND THE SERVICER EACH HEREBY SUBMITS
TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DIS-
TRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF
ANY NEW YORK STATE COURT SITTING IN THE CITY OF NEW YORK
FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. The Transferor and the Servicer each hereby irre-
vocably waives, to the fullest extent it may effectively do
so, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in
such a court has been brought in an inconvenient forum.
Nothing in this Section shall affect the right of the
Senior Class Conduits to bring any action or proceeding
against the Transferor, the Servicer or their respective
property in the courts of other jurisdictions.
(b) EACH OF THE PARTIES HERETO HEREBY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHER-
WISE AMONG ANY OF THEM ARISING OUT OF, CONNECTED WITH,
RELATING TO OR INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM
IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TRANSACTION
DOCUMENTS.
(c) This Agreement contains the final and
complete integration of all prior expressions by the
parties hereto with respect to the subject matter hereof
and shall constitute the entire Agreement among the parties
hereto with respect to the subject matter hereof super-
seding all prior oral or written understandings.
(d) The Transferor and each Eligible
Originator hereby appoint CT Corporation, located at ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as the authorized agent
upon whom process may be served in any action arising out
of or based upon this Agreement, the other Transaction
Documents to which such Person is a party or the transac-
tions contemplated hereby or thereby that may be instituted
in the United States District Court for the Southern Dis-
trict of New York and of any New York State court sitting
in The City of New York by the Agent, any Senior Class
Agent, any Senior Class Conduit, any Bank Investor or any
assignee of any of them.
SECTION 5 Severability. Any provisions of
this Agreement which are prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdic-
tion shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 6 Counterparts. This Agreement may
be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all of such
counterparts shall together constitute but one and the same
instrument.
SECTION 7 Successors and Assigns.
(a) This Agreement shall be binding on the
parties hereto and their respective successors and permit-
▇▇▇ assigns; provided, however, that the Transferor may not
assign any of its rights or delegate any of its duties
hereunder without the prior written consent of the Agent
and each Senior Class Agent.
(b) The Transferor hereby agrees and
consents to the assignment by each Senior Class Conduit
from time to time of all or any part of its rights under,
interest in and title to this Agreement and the Senior
Class Certificates to any Program Support Provider for such
Senior Class Conduit; provided, however, that any such as-
signment shall be made in accordance with the provisions of
the Master Pooling and Servicing Agreement and the Series
Supplement and any applicable provisions of this Agreement.
In addition, the Transferor hereby consents to and acknowl-
edges the assignment by (i) EFC of all of its rights under,
interest in and title to this Agreement and the Senior
Class Certificates to the Collateral Agent and (ii) each
other Senior Class Conduit of all of its rights under,
interest in and title to this Agreement and the Senior
Class Certificates to any Program Support Provider for such
Senior Class Conduit.
SECTION 8 Confidentiality.
(a) The Transferor, and the Servicer agree
to maintain the confidentiality of this Agreement, the
Senior Class Certificates, the Fee Letter, and all other
related documents and drafts thereof in communications with
third parties (other than its employees, accountants,
auditors, shareholders or counsel); provided, however, that
this Agreement may be disclosed to third parties to the
extent such disclosure is (i) required in order to comply
with any applicable law, order, regulation or ruling, or
(ii) required in response to any summons or subpoena or in
connection with any litigation; and provided, further,
however, that the Transferor and the Servicer shall have no
obligation of confidentiality in respect of any information
which may be generally available to the public or becomes
available to the public through no fault of theirs. Such
documents shall include, but not be limited to, research
studies, proprietary technology, trade secrets, know-how,
market studies and forecasts, competitive analyses, pricing
policies, the substance of agreements with customers and
others, marketing arrangements, customer lists and other
documents embodying such confidential information.
(b) The Agent, each Senior Class Agent,
each Senior Class Conduit and each Bank Investor agree to
maintain the confidentiality of any information obtained by
it in respect of the Receivables (including credit losses
and delinquency levels) and any other proprietary or confi-
dential information with respect to Obligors, the Accounts,
the Transferor or any Eligible Originator in communications
with third parties (other than its employees, accountants,
auditors, shareholders or counsel); provided, however, that
such information may be disclosed to third parties to the
extent such disclosure is (i) required in order to comply
with any applicable Law, or (ii) required in response to
any summons or subpoena or in connection with any litiga-
tion or (iii) to any Program Support Provider, Collateral
Agent or Bank Investor or any prospective Bank Investor or
Program Support Provider or to any rating agency providing
a rating for the Related Commercial Paper, provided that
the Agent, the applicable Senior Class Agent, the applica-
ble Senior Class Conduit and the applicable Bank Investor
inform such person that such information is sensitive,
proprietary and confidential information. Notwithstanding
the foregoing, (i) each Senior Class Conduit shall be
permitted to disclose Receivable performance information
and details concerning the structure of the facility
contemplated hereby and by the Series 1997-1 Supplement, in
summary form and in a manner not identifying the Trans-
feror, to prospective investors in Related Commercial
Paper, and (ii) the Agent, each Senior Class Agent and each
Senior Class Conduit shall have no obligation of confi-
dentiality in respect of any information which may be
generally available to the public or becomes available to
the public through no fault of theirs.
SECTION 9 No Bankruptcy Petition Against the
Senior Class Conduits. Each of the Transferor and the
Servicer hereby covenants and agrees that, prior to the
date which is one year and one day after the payment in
full of all outstanding Commercial Paper or other indebt-
edness of the Senior Class Conduits, it will not institute
against, or join any other Person in instituting against
any Senior Class Conduit any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other
similar proceeding under the laws of the United States or
any state of the United States.
SECTION 10 No Recourse. (a) The obligations
of each Senior Class Conduit under this Agreement are
solely the corporate obligations of such Senior Class
Conduit. No recourse shall be had for the payment of any
amount owing against Merrill or against any stockholder,
employee, officer, director or incorporator of such Senior
Class Conduit. For purposes of this Section 6.10, the term
"Merrill" shall mean and include Merrill and all Affiliates
thereof and any employee, officer, director, incorporator,
shareholder or beneficial owner of any of them; provided
however, that EFC shall not be considered to be an affili-
ate of Merrill for purposes of this Section 6.10.
(b) The obligations of the Transferor arising
under this Agreement shall be payable solely from amounts
available therefore in accordance with the Series Supple-
ment and amounts otherwise released by the Trust to the
Transferor as holder of the Transferor Interest or any
other interest in the Trust.
SECTION 11 Setoff. The Transferor and the
Servicer hereby irrevocably and unconditionally waive all
right of setoff that it may have under contract (including
this Agreement), applicable law or otherwise with respect
to any funds or monies of the Senior Class Conduits at any
time held by or in the possession of the Transferor.
SECTION 12 Further Assurances.
(a) The Transferor and the Servicer each
agrees to do such further acts and things and to execute
and deliver to the Agent, each Senior Class Agent, each
Senior Class Conduit, each Bank Investor or each Collateral
Agent such additional assignments, agreements, powers and
instruments as are reasonably required by such party to
carry into effect the purposes of this Agreement or to
better assure and confirm unto such party its rights,
powers and remedies hereunder.
(b) The Agent, each Senior Class Agent and
each Senior Class Conduit each agrees to do such further
acts and things and to execute and deliver to the Transfer-
or such additional instruments as are reasonably required
by such party to carry into effect the purposes of this
Agreement or to better assure and confirm unto such party
its rights, powers and remedies hereunder.
IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Certificate Purchase Agreement
as of the date first written above.
▇▇▇▇▇▇▇▇'▇ CREDIT CORPORATION,
as Transferor
By:
Name:
Title:
Address for notices:
▇▇▇▇▇▇▇▇'▇ Credit Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇'▇, INC.,
as Servicer
By:
Name:
Title:
Address for notices:
▇▇▇▇▇▇▇▇'▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
ENTERPRISE FUNDING CORPORATION,
as a Purchaser and a Senior Class
Conduit
By:
Name:
Title:
Address for notices:
Enterprise Funding Corporation
c/o Merrill ▇▇▇▇▇ Money Markets Inc.
World Financial Center, South Tower
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(with a copy to the Agent)
RECEIVABLES CAPITAL CORPORATION,
as a Purchaser and a Senior Class
Conduit
By:
Name:
Title:
Address for notices:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Money Markets Inc.
World Financial Center, North Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(with a copy to the Agent)
Commitment:
$75,000,000
NATIONSBANK, N.A., as Agent,
as a Senior Class Agent and as a
Bank Investor
By:
Name:
Title:
Address for notices:
NationsBank, N.A.
NationsBank Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ -
Structured Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Account for payments:
NationsBank, N.A.
ABA No.: ▇▇▇▇▇▇▇▇▇
For Credit To: NationsBank, Charlotte
Account No.: 10822016511
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Commitment:
$50,000,000
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Senior Class Agent
and as a Bank Investor
By:
Name:
Title:
Address for notices:
BancAmerica Securities
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset Securitization Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(with a copy to the Agent)
Account for payments:
Attention: GPO Account Administrator
ABA No.: ▇▇▇▇▇▇▇▇▇
For Credit To: ▇▇▇▇▇▇▇▇'▇ Credit Card Master Trust
Account No.: 47-03421
EXHIBIT A
TO THE CERTIFICATE
PURCHASE AGREEMENT
FORM OF ADDITIONAL INVESTMENT CERTIFICATE
The undersigned [Name of Officer], [Title of Officer]
of ▇▇▇▇▇▇▇▇'▇ Credit Corporation, a Nevada corporation (the
"Transferor"), and [Name of Officer] [Title of Officer] of
▇▇▇▇▇▇▇▇'▇, Inc., a Tennessee Corporation, as Servicer (the
"Servicer") pursuant to Section 2.2 of the Certificate Purchase
Agreement dated August 21, 1997 (the "Agreement"), by and among the
Transferor, the Servicer, Enterprise Funding Corporation, a Dela-
ware corporation, Receivables Capital Corporation, a Delaware
corporation, NationsBank, N.A., a national banking association, as
agent for the Senior Class Conduits and the Bank Investors, as a
Senior Class Agent and individually as a Bank Investor and Bank of
America National Trust and Savings Association, a national banking
association, as a Senior Class Agent and individually as a Bank
Investor, hereby certify that:
(7) All of the representations and
warranties of the Transferor and the
Servicer in the Agreement are true and
correct as of the date hereof (except
to the extent that any such
representation and warranty expressly
relates to an earlier date).
(8) The Aggregate Outstanding Principal
Balance as of the end of the
immediately preceding Monthly Period$_____
(9) The Senior Class Investor Amount for
each Senior Class as of the date
hereof . . . . . . . . . . . . .$_____[A-1]
$_____[A-2]
(10) The Senior Class Certificate Principal
Balance for each Senior Class as of
the date hereof. . . . . . . . .$_____[A-1]
$_____[A-2]
(11) The Interest Component of Related
Commercial Paper issued by the related
Senior Class Conduit, if any, as of
the Business Day immediately preceding
the date hereof. . . . . . . . .$_____[A-1]
$_____[A-2]
(12) The Subordinate Class Investor Amount
as of the Business Day immediately
preceding the date hereof. . . . .$_____
(13) The total amount of the Additional
Investor Amount requested by the
Transferor and the share of such
Additional Investor Amount to be
acquired by each Senior Class.$_____[total]
$_____[A-1]
$_____[A-2]
(14) The Senior Class Certificate Principal
Balance for each Senior Class after
giving effect to the Additional In-
vestor Amount (line 4 plus line 7)$_____[A-1]
$_____[A-2]
(15) The estimated additional Interest
Component of the Related Commercial
Paper to be issued to fund the
Additional Investor Amount (Assuming:
Discount Rate: _____; Term: _____)$_____[A-1]
$_____[A-2]
(16) The Senior Class Certificate Principal
Balance after giving effect to the
Additional Investor Amount plus the
Interest Component of Related Commer-
cial Paper issued by the related Se-
nior Class Conduit, if any (line 5
plus line 8 plus line 9) . .$_____[A-1]
$_____[A-2]
(17) Are the amounts on line 10 less than
the related Senior Class Facility
Limit . . . . . . . . . . . . . [Yes]
(18) The Transferor Amount after giving ef-
fect to the Additional Investor
Amount, each as of the Determination
Date preceding the Distribution Date$_____
(19) The Transferor Amount is not less than
the Minimum Transferor Amount.[Yes]
(20) The Subordinate Class Investor Amount
(line (6)) is not less than the Mini-
mum Enhancement Amount . . . .[Yes]
(21) No Potential Pay Out Event or Pay Out
Event under the Agreement has occurred
and is continuing. . . . . . .[Yes]
Capitalized terms used and not otherwise de-
fined herein shall have the meaning assigned to such terms
in the Agreement.
IN WITNESS WHEREOF, I have duly executed and
delivered this Additional Investment Certificate on this
____ day of ______, 199_.
▇▇▇▇▇▇▇▇'▇ CREDIT CORPORATION,
as Transferor
By:_______________________
Name:
Title:
EXHIBIT B
TO THE CERTIFICATE
PURCHASE AGREEMENT
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Reference is made to the Certificate Purchase
Agreement dated as of August 21, 1997, as it may be amended
or otherwise modified from time to time (as so amended or
modified, the "Agreement"), by and among ▇▇▇▇▇▇▇▇'▇ Credit
Corporation, a Nevada corporation, as transferor,
▇▇▇▇▇▇▇▇'▇, Inc., a Tennessee corporation, as servicer,
Enterprise Funding Corporation, a Delaware corporation,
Receivables Capital Corporation, a Delaware corporation,
Nationsbank, N.A., a national banking association, as agent
for the Senior Class Conduits and the Bank Investors, as a
Senior Class Agent and as a Senior Class Agent and individ-
ually as a Bank Investor, Bank of America National Trust
and Savings Association, a national banking association, as
a Senior Class Agent and individually as a Bank Investor,
hereby certify that:
[NAME OF ASSIGNOR], in its capacity as [a Senior
Class Conduit] [a Bank Investor] under the Agreement (the
"Assignor") and [NAME OF ASSIGNEE] (the "Assignee") agree
as follows:
1. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to all of the Assignor's
rights and obligations under the Agreement, such interest,
expressed as a percentage of all rights and obligations of
the members of the Senior Class of which the Assignor is a
member, being equal to the percentage equivalent of a frac-
tion the numerator of which is $[________] and the denomi-
nator of which is the Senior Class Facility Limit for such
Senior Class.
2. The Assignor (i) represents and
warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such
interest is free and clear of any Lien created by it; (ii)
makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties
or representations made in or in connection with the Agree-
ment or any other instrument or document furnished pursuant
thereto or the execution, legality, validity, enforce-
ability, genuineness, sufficiency or value of the Agreement
or the Receivables, or any other instrument or document
furnished pursuant thereto; and (iii) makes no represen-
tation or warranty and assumes no responsibility with
respect to the financial condition of the Transferor or the
performance or observance by the Transferor of any of its
obligations under the Agreement or any instrument or
document furnished pursuant thereto.
3. The Assignee (i) confirms that it has
received a copy of the Agreement, the Pooling and Servicing
Agreement and the Series Supplement, together with copies
of the financial statements referred to in Section 3.3 of
the Agreement, to the extent delivered through the date of
this Assignment and Assumption Agreement, and such other
documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into
this Assignment and Assumption Agreement and purchase such
interest in the Assignor's rights and obligations under the
Agreement; (ii) agrees that it will, independently and
without reliance upon the Agent or any of its Affiliates,
any Senior Class Agent, the Assignor or any other Senior
Class Conduit or Bank Investor and based on such documents
and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not
taking action under the Agreement and the other Transaction
Documents; (iii) appoints and authorizes each of the Agent
and the Senior Class Agent for the Senior Class of which
the Assignor is a member to take such action as agent on
its behalf and to exercise such power under the Agreement
and the Transaction Documents and any other instrument or
document furnished pursuant thereto as are delegated to the
Agent and the Senior Class Agent, respectively, by the
terms thereof, together with such powers as are reasonably
incidental thereto; (iv) appoints the Agent to enforce its
respective rights and interests in and under the Agreement
and the Receivables in accordance with Article V of the
Agreement; (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms
of the Agreement are required to be performed by it as a
Bank Investor; (vi) specifies as its address for notices
and its account for payments the office and account set
forth beneath its name on the signature pages hereof; (vii)
attaches the forms prescribed by the Internal Revenue
Service of the United States of America certifying as to
the Assignee's status for purposes of determining exemption
from United States withholding taxes with respect to all
payments to be made to the Assignee under the Agreement or
such other documents as are necessary to indicate that all
such payments are subject to such rates at a rate reduced
by an applicable tax treaty; and (viii) covenants and
agrees that, prior to the date which is one year and one
day after the payment in full of all outstanding Commercial
Paper or other indebtedness of the Senior Class Conduits,
it will not institute against, or join any other Person in
instituting against any Senior Class Conduit any
bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under
the laws of the United States or any state of the United
States.
4. The effective date for this Assignment
and Assumption Agreement shall be the later of (i) the date
on which the Agent receives this Assignment and Assumption
Agreement executed by the parties hereto, and receives the
consent of the Senior Class Agent, on behalf of the
Assignor, and (ii) the date of this Assignment and Assump-
tion Agreement (the "Effective Date"). Following the
execution of this Assignment and Assumption Agreement and
the consent of the Senior Class Agent, on behalf of the
Assignor, this Assignment and Assumption Agreement will be
delivered to the Agent for acceptance and, with respect to
the Assignment and Assumption Agreement, recording by the
Agent.
5. Upon such acceptance and recording, as
of the Effective Date, (i) the Assignee shall be a party to
the Agreement and, to the extent provided in this Assign-
ment and Assumption Agreement, have the rights and obli-
gations of a Bank Investor thereunder and (ii) the Assignor
shall, to the extent provided in this Assignment and
Assumption Agreement, relinquish its rights and be released
from its obligations under the Agreement.
6. Upon such acceptance and recording,
from and after the Effective Date, the Agent shall make all
payments under the Agreement in respect of the interest
assigned hereby (including, without limitation, all
payments in respect of such interest in the related Senior
Class Certificates, Carrying Costs allocable to the related
Bank Investor and fees) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments
under the Agreement for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Assumption Agree-
ment shall be governed by, and construed in accordance
with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have
caused this Assignment and Assumption Agreement to be
executed by their respective officers thereunto duly
authorized as of the ___ day of _______, 199_.
[NAME OF ASSIGNOR]
By:
Name:
Title:
[NAME OF ASSIGNEE]
By:
Name:
Title:
Address for notices and Account for payments:
For Credit Matters: For Administrative Matters:
[NAME], [NAME],
[ADDRESS] [ADDRESS]
Attn: Attn:
Telephone: Telephone:
Telefax: Telefax:
Account for Payments:
[ACCOUNT NAME]
[ROUTING ADDRESS]
ABA Number:
Account Number:
Attn:
Accepted this ___ day
of _______, 199_
NATIONSBANK, N.A.,
as Agent
By: ________________________
Name:
Title:
Consented to this ___ day
of _________, 199_
[Senior Class Agent],
as Senior Class Agent
By: ________________________
Name:
Title:
EXHIBIT C
TO THE CERTIFICATE
PURCHASE AGREEMENT
FORM OF SECRETARY'S CERTIFICATE
I, _______________, the undersigned [Secre-
tary][Assistant Secretary] of [NAME OF COMPANY], a Delaware
corporation (the "Company"), DO HEREBY CERTIFY that:
1. Attached hereto as Annex A is a true and com-
plete copy of the Certificate of Incorporation of the
Company as in effect on the date hereof.
2. Attached hereto as Annex B is a true and com-
plete copy of the By-Laws of the Company as in effect on
the date hereof.
3. Attached hereto as Annex C is a true and com-
plete copy of the resolutions duly adopted by the Board of
Directors of the Company on ________, 199_, approving the
execution, delivery and performance of each of the
documents mentioned therein, which resolutions have not
been revoked, modified, amended or rescinded and are still
in full force and effect.
4. The below-named persons have been authorized
on the Company's behalf to execute the Certificate Purchase
Agreement and any other documents to be delivered by the
Company thereunder, and at all times since _______, 199_
(to and including the date hereof) have been officers or
representatives of the Company holding the respective
offices or positions below set opposite their names and the
signatures below set opposite their names are their genuine
signatures:
Name Title Signature
______________ _______________ _______________
______________ _______________ _______________
______________ _______________ _______________
______________ _______________ _______________
5. The representations and warranties of the
Company contained in Section 3.1 of the Certificate
Purchase Agreement dated as of August 21, 1997 by and among
the Transferor, ▇▇▇▇▇▇▇▇'▇, Inc., as servicer, Enterprise
Funding Corporation, Receivables Capital Corporation,
Nationsbank, N.A., as agent for the Senior Class Conduits
and the Bank Investors, as a Senior Class Agent and
individually as a Bank Investor, Bank of America National
Trust and Savings Association, individually as a Bank
Investor, are true and correct as if made on the date here-
of.
WITNESS my hand as of this _____ day of August,
1997.
___________________________
[Name]
[Title]
I, the undersigned, [Title of Officer] of the
Transferor, do hereby certify that [Name of
Secretary/Assistant Secretary] is the duly elected and
qualified [Secretary][Assistant Secretary] of the Company
and the signature above is his/her genuine signature.
WITNESS my hand as of this _____ day of August,
1997.
___________________________
[Name]
[Title]
EXHIBIT D
TO THE CERTIFICATE
PURCHASE AGREEMENT
[Opinions to be Attached]
EXHIBIT E
TO THE CERTIFICATE
PURCHASE AGREEMENT
FORM OF QUARTERLY SERVICER'S CERTIFICATE
▇▇▇▇▇▇▇▇'▇, INC.
The undersigned, a duly authorized representa-
tive of ▇▇▇▇▇▇▇▇'▇, Inc., as Servicer pursuant to the
Master Pooling and Servicing Agreement dated as of August
21, 1997 (the "Pooling and Servicing Agreement"), as sup-
plemented by a Series 1997-1 Supplement dated as of
August 21, 1997 (the "Series Supplement"), each among
▇▇▇▇▇▇▇▇'▇ Credit Corporation, as Transferor, ▇▇▇▇▇▇▇▇'▇,
Inc., as Servicer, and Norwest Bank Minnesota, National
Association, as Trustee, does hereby certify that:
1. Capitalized terms used in this Officer's
Certificate have their respective meanings
set forth in the Pooling and Servicing
Agreement.
2. ▇▇▇▇▇▇▇▇'▇, Inc. is as of the date hereof
the Servicer under the Pooling and Servic-
ing Agreement.
3. The undersigned is duly authorized pursu-
ant to the Pooling and Servicing Agreement
to execute and deliver this Officer's
Certificate to NationsBank, N.A., as the
Agent, and to each Senior Class Agent
under the Certificate Purchase Agreement
referred to in the Series Supplement.
4. This certificate is delivered pursuant to
Section 3.7 of the Certificate Purchase
Agreement.
5. A review of the activities of the Servicer
during the calendar quarter ended ______
__, and of its performance under the
Certificate Purchase Agreement and the
other Transaction Documents was made under
my supervision.
6. To the best of my knowledge, based on such
review, the Servicer has fully performed
all its obligations under the Pooling and
Servicing Agreement, the Series Supple-
ment, the Certificate Purchase Agreement
and the other Transaction Documents
throughout such calendar quarter and no
event which, with the giving of notice or
passage of time or both, would constitute
a Pay Out Event or Servicer Default has
occurred or is continuing except as set
forth in paragraph 7 below.
7. The following is a description of each Pay
Out Event or Servicer Default known to me
to have been made during the calendar
quarter ended ______ __, ____ including
the (i) nature of each such Pay Out Event
or Servicer Default, (ii) the action taken
by the Servicer, if any, to remedy each
such Pay Out Event or Servicer Default and
(iii) the current status of each such Pay
Out Event or Servicer Default:
IN WITNESS WHEREOF, the undersigned, a duly
authorized officer of the Servicer, has duly executed
this Certificate this ___ day of __________, ____.
▇▇▇▇▇▇▇▇'▇, INC.
By:
Name:
Title:
EXHIBIT F
TO THE CERTIFICATE
PURCHASE AGREEMENT
DEFINED TERMS UNDER THE FINANCIAL COVENANTS
All capitalized terms used herein which are not
defined herein shall have the meanings specified in the
Certificate Purchase Agreement dated as of August 21,
1997, as it may be amended or otherwise modified from
time to time (as so amended or modified, the
"Agreement"), by and among the Transferor, ▇▇▇▇▇▇▇▇'▇,
Inc., a Tennessee corporation, as servicer (in such
capacity, the "Servicer"), Enterprise Funding Corpora-
tion, a Delaware corporation, Receivables Capital
Corporation, a Delaware corporation, NationsBank, N.A., a
national banking association, as agent for the Senior
Class Conduits and the Bank Investors, as a Senior Class
Agent and individually as a Bank Investor and Bank of
America National Trust and Savings Association, a na-
tional banking association, as a Senior Class Agent and
individually as a Bank Investor, to which this Exhibit is
attached.
"Acquisition" shall mean, the acquisition of
(i) a controlling equity interest in another Person
(including the purchase of an option, warrant or convert-
ible or similar type security to acquire such a control-
ling interest at the time it becomes exercisable by the
holder thereof), whether by purchase of such equity
interest or upon exercise of an option or warrant for, or
conversion of securities into, such equity interest, or
(ii) assets of another Person which constitute all or
substantially all of the assets of such Person or all or
substantially all of a line or line of business conducted
by a division of such Person.
"Agent" shall mean for the purpose of these
financial covenant definitions, NationsBank of Texas,
National Association, a national banking association, in
its capacity as agent for the Lenders.
"Applicable Commitment Percentage" shall mean
at any time for each Lender with respect to the Revolving
Credit Facility (including its Participations and its
obligations under the Credit Facilities Agreement to
NationsBank of Texas, National Association to acquire
Participations), a fraction (expressed as a percentage),
(A) the numerator of which shall be the amount of such
Lender s Revolving Credit Commitment at such date of
determination (which Revolving Credit
"Borrower" shall mean, for the purpose of these
financial covenant definitions, ▇▇▇▇▇▇▇▇ s, Inc., having
a principal place of business in Jackson, Mississippi.
"Capital Leases" means all leases which have
been or should be capitalized in accordance with GAAP as
in effect from time to time including Statement No. 13 of
the Financial Accounting Standards Board and any succes-
sor thereof.
"Closing Date" means the date as of which the
Credit Facilities Agreement was executed by the Borrower,
the Lenders and the Agent and on which the conditions set
forth in Section 5.01 thereof were satisfied.
"Common Stock" means the common stock, par
value $.10 per share, of the Servicer.
"Consistent Basis" in reference to the applica-
tion of GAAP means the accounting principles observed in
the period referred to are comparable in all material
respects to those applied in the preparation of the
audited financial statements of the Servicer, ▇▇▇▇▇▇▇▇'▇
and each Person referred to in Section 5.1(a) hereof.
"Consolidated EBITDA" means, with respect to
the ▇▇▇▇▇▇▇▇'▇ and its Subsidiaries for any period of
computation thereof, the sum of, without duplication, (i)
Consolidated Net Income, plus (ii) Consolidated Interest
Expense, plus (iii) taxes on income, plus (iv) amortiza-
tion, plus (v) depreciation, all determined on a ▇▇▇▇▇▇▇-
dated basis in accordance with GAAP applied on a Consis-
tent Basis; provided however, that extraordinary and
unusual charges incurred by ▇▇▇▇▇▇▇▇ s directly as a
result of (i) the Acquisition by ▇▇▇▇▇▇▇▇ s of Parisian,
Inc. effective October 11, 1996, the Acquisition by
▇▇▇▇▇▇▇▇ s of ▇▇▇▇▇▇▇ s, Inc. effective February 3, 1996
and the Acquisition by ▇▇▇▇▇▇▇▇ s of ▇.▇. ▇▇▇▇▇▇▇▇▇ s,
Inc. effective February 1, 1997 and (ii) any Permitted
Acquisition after the Closing Date in an amount up to and
including 10% of the Cost of Acquisition for such Permit-
▇▇▇ Acquisition shall be excluded from the computation of
Consolidated EBITDA; provided further, however, that
effective as of the effective date of any Acquisition for
each Four-Quarter Period then and thereafter occurring
until such Acquisition has been effective for a complete
Four-Quarter Period.
"Consolidated Financing Charges" means those
charges owed and allocated to third parties with respect
to accounts receivable securitizations transacted in the
ordinary course of business.
"Consolidated Fixed Charge Ratio" means, with
respect to ▇▇▇▇▇▇▇▇'▇ and its Subsidiaries for the Four-Quarter
Period ending on the date of computation thereof,
the ratio of (a) Consolidated EBITDA plus Consolidated
Financing Charges plus, to the extent deducted in arriv-
ing at Consolidated EBITDA, lease, rental and all other
payments made in respect of or in connection with operat-
ing leases, to (b) Consolidated Fixed Charges during such
Four-Quarter Period.
"Consolidated Fixed Charges" means, with re-
spect to ▇▇▇▇▇▇▇▇'▇ and its Subsidiaries, for the periods
indicated, the sum of, without duplication, (i) ▇▇▇▇▇▇▇-
dated Interest Expense, plus (ii) to the extent deducted
in arriving at Consolidated EBITDA, lease, rental and all
other payments made in respect of or in connection with
operating leases, plus (iii) current maturities of Con-
solidated Funded Total Indebtedness, plus (iv) all divi-
dends and other distributions (other than distributions
in the form of any stock (including without limitation
capital stock of ▇▇▇▇▇▇▇▇'▇), security, note or other
instrument) paid during such period (regardless of when
declared) on any shares of capital stock of ▇▇▇▇▇▇▇▇'▇
then outstanding, including without limitation its Common
Stock and its Preferred Stock, plus (v) Consolidated
Financing Charges, all determined on a Consolidated basis
in accordance with GAAP applied on a Consistent Basis;
provided further, however, that effective as of the
effective date of any Acquisition, such calculations
shall be computed giving pro forma effect to such Acqui-
sition for each Four-Quarter Period then and thereafter
occurring until such Acquisition has been effective for a
complete Four-Quarter Period.
"Consolidated Funded Senior Indebtedness"
means, at any time as of which the amount thereof is to
be determined, (i) all Consolidated Funded Total Indebt-
edness the outstanding, including without limitation any
Loans, minus (ii) the aggregate principal amount of all
Consolidated Subordinated Debt.
"Consolidated Funded Total Indebtedness" means,
at any time as of which the amount thereof is to be
determined, all Indebtedness for Money Borrowed of the
Borrower and its Subsidiaries (including, but not limited
to, all current maturities and borrowings under short
term loans) plus the face amount of all issued and out-
standing standby letters of credit and all obligations
(to the extent not duplicative) arising under such let-
ters of credit, all determined on a Consolidated basis in
accordance with GAAP applied on a Consistent Basis.
"Consolidated Interest Expense" means, with
respect to any period of computation thereof, the gross
interest expense of ▇▇▇▇▇▇▇▇'▇ and its Subsidiaries,
including without limitation (i) the amortization of debt
discounts, (ii) the amortization of all fees (including,
without limitation, fees payable in respect of a Swap
Agreement) payable in connection with the incurrence of
Indebtedness to the extent included in interest expense
and (iii) the portion of any payments made in connection
with Capital Leases allocable to interest expense, all
determined on a Consolidated basis in accordance with
GAAP applied on a Consistent Basis.
"Consolidated Net Income" means, for any period
of computation thereof, the net income of ▇▇▇▇▇▇▇▇'▇ and
its Subsidiaries as determined on a Consolidated basis in
accordance with GAAP applied on a Consistent Basis; but
excluding as income: (i) net gains on the sale, conver-
sion or other disposition of capital assets, net gains on
the acquisition, retirement, sale or other disposition of
capital stock and other securities of ▇▇▇▇▇▇▇▇ s or its
Subsidiaries, and net gains on the collection of proceeds
of life insurance policies, which net gains in the aggre-
gate during any Four-Quarter Period exceed $200,000, (ii)
any write-up of any asset, and (iii) any other net gain
or credit of an extraordinary nature, all determined in
accordance with GAAP applied on a Consistent Basis.
"Consolidated Subordinated Debt" means at any
time as of which the amount thereof is to be determined,
the sum of the following in respect of ▇▇▇▇▇▇▇▇'▇ and its
Subsidiaries determined on a Consolidated basis: (i) the
Convertible Subordinated Debentures, (ii) the Junior
Subordinated Debentures, (iii) the Parisian Senior Subor-
dinated Notes and (iv) all other Consolidated Funded
Total Indebtedness which is by its terms subordinate in
all respects to the Loans as required by, and in sub-
stance acceptable to, the Agent.
"Contingent Obligation" of any Person means (i)
all contingent liabilities required (or which, upon the
creation or incurring thereof, would be required) to be
included in the Consolidated financial statements (in-
cluding footnotes) of such Person in accordance with GAAP
applied on a Consistent Basis, including Statement No. 5
of the Financial Accounting Standards Board, (ii) all
reimbursement obligations of such Person with respect to
any letter of credit and all obligations of such Person
guaranteeing or in effect guaranteeing any Indebtedness,
dividend or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or
indirectly, including obligations of such Person however
incurred:
(i) to purchase such Indebtedness or other
obligation or any property or assets con-
stituting security therefor;
(ii) to advance or supply funds in any manner
(i) for the purchase or payment of such
Indebtedness or other obligation, or (ii)
to maintain a minimum working capital, net
worth or other balance sheet condition or
any income statement condition of the pri-
▇▇▇▇ obligor;
(iii) to grant or convey any lien, security
interest, pledge charge or other en-
cumbrance on any property or assets
of such Person to secure payment of
such Indebtedness or other
obligation;
(iv) to lease property or to purchase securi-
ties or other property or services primar-
ily for the purpose of assuring the owner
or holder of such Indebtedness or obliga-
tion of the ability of the primary obligor
to make payment of such Indebtedness or
other obligation;
(v) otherwise to assure the owner of the In-
debtedness or such obligation of the pri-
▇▇▇▇ obligor against loss in respect
thereof;
with respect to Contingent Obligations (such as litigation,
guarantees and pension plan liabilities), such liabilities
shall be computed at the amount which, in light of all the
facts and circumstances existing at the time, represent the
present value of the amount which can reasonably be expected
to become an actual or matured liability.
"Convertible Subordinated Debentures" means the 4
3/4% Convertible Subordinated Debentures Due 2003 of
▇▇▇▇▇▇▇▇'▇ in the aggregate principal amount of $86,250,000
issued pursuant to that certain Indenture dated as of October
26, 1993, between ▇▇▇▇▇▇▇▇'▇ and Union Planters National Bank,
as trustee (the "Convertible Subordinated Debentures Inden-
ture").
"Cost of Acquisition" means, as at the date of
closing any Acquisition, the sum of the following: (i) the
value of the capital stock or warrants or options to acquire
capital stock of ▇▇▇▇▇▇▇▇ s or any Subsidiary to be trans-
ferred in connection therewith, (ii) any cash or other proper-
ty (excluding property described in clause (i)) or the unpaid
principal amount of any debt instrument given as consideration
in such Acquisition, and (iii) any Indebtedness or liabilities
assumed by the ▇▇▇▇▇▇▇▇ s or its Subsidiaries in connection
with such Acquisition. For purposes of determining the Cost
of Acquisition for any transaction, (A) the capital stock of
▇▇▇▇▇▇▇▇ s shall be valued (I) at its market value as reported
on the Nasdaq National Market System or any national securi-
ties exchange with respect to shares that are freely trade-
able, and (II) with respect to shares that are not freely
tradeable, as determined by the Board of Directors of
▇▇▇▇▇▇▇▇ s, (B) the capital stock of any Subsidiary shall be
valued as determined by the Board of Directors of such Subsid-
iary, and (C) with respect to any Acquisition accomplished
pursuant to the exercise of options or warrants or the conver-
sion of securities, the Cost of Acquisition shall include both
the cost of acquiring such option, warrant or convertible
security as well as the cost of exercise or conversion;
"Credit Facilities Agreement" shall mean that certain
Credit Facilities and Reimbursement Agreement, dated as of [
], among ▇▇▇▇▇▇▇▇ s, Inc., as Borrower, each Lender party
thereto and NationsBank of Texas, National Association, in its
capacity as Agent for the Lenders, as amended and modified up
to [ ]
"Four-Quarter Period" means a period of four full
consecutive quarterly periods, taken together as one account-
ing period, and in the event any such fiscal quarterly period
occurs prior to the effective date of any Acquisition, or is
the period in which such effective date occurs (each a "Pre-Acquisition
Period"), all financial statements, data, computa-
tions and determinations for such Four-Quarter Period shall be
made on a pro forma basis for each Pre-Acquisition Period
giving effect to such Acquisition for all prior periods.
"Indebtedness" means with respect to any Person,
without duplication, all Indebtedness for Money Borrowed, all
indebtedness of such Person for the acquisition of property,
all indebtedness secured by any Lien on the property of such
Person whether or not such indebtedness is assumed, all lia-
bility of such Person by way of endorsements (other than for
collection or deposit in the ordinary course of business), all
Contingent Obligations, all Rate Hedging Obligations, that
portion of obligations with respect to Capital Leases which in
accordance with GAAP is classified as a liability on a balance
sheet; but excluding all accounts payable and accruals, in
each case in the ordinary course of business and only so long
as payment therefor is due within one year; provided that in
no event shall the term Indebtedness include surplus and
retained earnings, minority interest in Subsidiaries, lease
obligations (other than pursuant to Capital Leases or as
described in clause (d) of the definition of "Contingent
Obligation"), reserves for deferred income taxes and investment
credits, other deferred credits and reserves, and deferred
compensation obligations.
"Indebtedness for Money Borrowed" means for any
Person all Indebtedness in respect of money borrowed, includ-
ing without limitation all Capital Leases and the deferred
purchase price of any property or asset, evidenced by a prom-
issory note, bond or similar written obligation for the pay-
ment of money (including, but not limited to, conditional
sales or similar title retention agreements);
"Junior Subordinated Debentures" means the 7.5%
Junior Subordinated Debentures Due March 31, 2004 of
▇▇▇▇▇▇▇▇'▇ issued in the original aggregate principal amount
of $17,500,000.
"Lender" shall mean each lender having executed and
delivered a signature page to the Credit Facilities Agreement
or an instrument of assignment with respect to the Credit
Facilities Agreement pursuant to Section 11.01 thereof on or
prior to June
"Lien" means any interest in property securing any
obligation owed to, or a claim by, a Person other than the
owner of the property, whether such interest is based on the
common law, statute or contract, and including but not limited
to the lien or security interest arising from a mortgage,
encumbrance, pledge, security agreement, conditional sale or
trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, ▇▇▇▇▇▇▇▇ s and
its Subsidiaries shall be deemed to be the owners of any
property which either of them have acquired or hold subject to
a conditional sale agreement, financing lease, or other ar-
rangement pursuant to which title to the property has been
retained by or vested in some other Person for security pur-
poses.
"Loan" or "Loans" means any of the Revolving Credit
Loans or Swing Line Loans.
"Rate Hedging Obligations" means any and all obliga-
tions of ▇▇▇▇▇▇▇▇ s, whether absolute or contingent and howso-
ever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof
and substitutions therefor), under (a) any and all agreements,
devices or arrangements designed to protect at least one of
the parties thereto from the fluctuations of interest rates,
exchange rates or forward rates applicable to such party s
assets, liabilities or exchange transactions, including, but
not limited to, U.S. dollar-denominated or cross-currency
interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants
and those commonly known as interest rate "swap" agreements;
and (b) any and all cancellations, buybacks, reversals, termi-
nations or assignments of any of the foregoing.
"Revolving Credit Facility" means the facility
described in Section 2.01 of the Credit Facilities Agreement
providing for Loans to the Borrower by the Lenders in the
aggregate principal amount equal to (i) the lesser of the
Borrowing Base and the Total Revolving Credit Commitment, less
(ii) the aggregate principal amount of Swing Line Outstanding
and Outstanding Letters of Credit.
"Revolving Credit Loan" means a Loan made pursuant to
the Revolving Credit Facility (but specifically excludes all
Swing Line Loans).
"Swing Line Loans" means Loans made by NationsBank of
Texas, National Association to the Borrower pursuant to
Section 2.02 of the Credit Facilities Agreement.
"Swing Line Outstandings" means as of any date of
determination, the aggregate principal amount of all Swing
Line Loans then outstanding.
EXHIBIT G
TO THE CERTIFICATE
PURCHASE AGREEMENT
PROCEEDINGS
[To come from ▇▇▇▇▇▇▇▇'▇]
