PURCHASE AGREEMENT

 

 

EXHIBIT 10.1

PURCHASE AGREEMENT

dated

August 12, 2009

among

SPIRIT OF AMERICA NATIONAL BANK,

CHARMING SHOPPES RECEIVABLES CORP.,

SPIRIT OF AMERICA, INC.

 and

WORLD FINANCIAL NETWORK NATIONAL BANK

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PURCHASE AGREEMENT

THIS PURCHASE AGREEMENT (this “ Agreement ”) executed August 12, 2009 (the “Execution Date”) among SPIRIT OF AMERICA NATIONAL BANK , a national bank (“ SOANB ”), with a principal place of business in Milford, Ohio and an address at 450 Winks Lane, Bensalem, PA 19020, SPIRIT OF AMERICA, INC. , a Delaware corporation (“ SOAI ”), CHARMING SHOPPES RECEIVABLES CORP. , a Delaware corporation, (“ CSRC ”, and together with SOANB and SOAI, the “ Seller Parties ” and each, a “ Seller Party ”), and WORLD FINANCIAL NETWORK NATIONAL BANK , a national bank (“ Purchaser ”), with an address at 3100 Easton Square Place, Columbus, OH  43219.

W I T N E S S E T H:

WHEREAS, the Charming Shoppes Master Credit Card Trust (the “Master Trust”) was formed pursuant to that certain Second Amended and Restated Pooling and Servicing Agreement, dated as of November 25, 1997, as amended and/or supplemented through the date of this Agreement by the amendments and supplements listed on Exhibit 5 and as it may be further amended and/or supplemented through the Closing Date to the extent permitted by this Agreement, including all series supplements thereto (the “Pooling and Servicing Agreement”), by and among CSRC, as Seller, SOAI, as Servicer, and U.S. Bank National Association, successor to Wachovia Bank, National Association, as Trustee;

WHEREAS, pursuant to this Agreement, the Seller Parties are willing to sell and Purchaser is willing to purchase, the Assets to be Sold (as hereafter defined) on the terms and subject to the conditions set forth herein;

WHEREAS, on the date hereof, Purchaser and certain subsidiaries of Charming Shoppes, Inc. (“Charming Shoppes”) are entering into Private Label Credit Card Plan Agreements (the “Program Agreements”)  to become effective as of the Closing under this Agreement, that provides for, among other things, the issuance of proprietary credit cards bearing one or more Trade Names (as hereafter defined) and co-branded credit cards;

WHEREAS, simultaneously with the Closing under this Agreement, the Seller Parties, Purchaser and certain of their respective Affiliates desire to enter into other agreements in connection with the transactions contemplated hereby;

NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Purchaser and the Seller Parties, each intending to be legally bound, hereby agree as follows:

“Account” means a credit account on which a purchase transaction may be or has been made by (or by a person authorized by) the Cardholder pursuant to a Credit Card.

 

 

“Account Assets” has the meaning set forth in Section 2.1.

“Account Balance” means, as to any Eligible Account, any and all amounts owing to SOANB in respect of such Account by the Cardholder (including principal amounts for the payment of goods and services, accrued interest, periodic finance charges, late charges, fees and other finance and service charges) whether or not billed.

“Account Duties” means the duties to the Cardholders of Eligible Accounts under the applicable Cardholder Agreements to bill, administer and collect the Account Assets, including, without limitation, administering any Debt Cancellation Contracts.

“Action” has the meaning set forth in Section 7.3(a).

“Additional Payment” has the meaning set forth in Schedule 1.

“Adjusted Closing Statement” has the meaning set forth in Section 3.2(b).

“Adjusted Payment Amount” has the meaning set forth in Section 3.2(b).

“Adjustment Amount” has the meaning set forth in Section 3.2(b).

“Adjustment Date” means the sixtieth (60th) day after the Closing Date (or, if such day is not a Business Day, the next succeeding Business Day).

“ADSI” means ADS Alliance Data Systems, Inc.

“Affiliate” means, as to any specified Person, any other Person controlling or controlled by or under common control with such specified Person.

“Agreed-Upon Procedures Letter” has the meaning set forth in Section 3.2(a).

“Agreement” means this Purchase Agreement, including all schedules and exhibits hereto, and, if amended, modified or supplemented, as the same may be so amended, modified or supplemented from time to time.

“Ancillary Agreements” means, collectively, the Parent Agreement, the Program Agreements, the Specified Amendments, the Assignment and Bill of Sale, the Assumption Agreements and the certificates of the Seller Parties delivered pursuant to Section 11.4(b).

“Assets to be Sold” means, collectively, the Account Assets and the Securitization Assets.

“Assignment and Bill of Sale” means that document delivered by the Seller Parties to Purchaser on the Closing Date which provides for, among other things, the assignment and transfer to Purchaser of all of each Seller Party’s respective rights, title and interest in the Assets to be Sold in substantially the form of Exhibit 2.

 

 

“Assumed Liabilities” means, collectively, (i) the Account Duties of SOANB first arising from and after the Transfer Date to the extent related to the Account Assets and (ii) the Securitization Assets Assumed Liabilities.

“Assumption Agreements” means an assumption agreement from Purchaser to the Seller Parties substantially in the form of Exhibit 3 and the Securitization Transfer Agreements, pursuant to which, among other things, Purchaser confirms its assumption and agreement to perform and discharge the Assumed Liabilities.

“AUP Payment Amount” has the meaning set forth in Section 3.2(a).

“Bank Merger Act” means Section 18(c) of the Federal Deposit Insurance Act (12 U.S.C. 1828 (c)).

“Books and Records” means, to the extent in any Seller Party’s possession or control as of the Transfer Date, all applications for Eligible Accounts, all Cardholder Agreements related to Eligible Accounts, copies of Cardholder billing statements for the twelve (12) months prior to the Transfer Date or, if available, the twenty-four (24) months prior to the Transfer Date, all sales orders under Eligible Accounts, all customer service information (commonly referred to as “memo screens”) and copies thereof relating to Eligible Accounts, monthly and annual servicer reports delivered to the Trustee pursuant to the Pooling and Servicing Agreement during the five (5) years prior to the Closing Date (including, without limitation, pursuant to Sections 3.5 and 3.6 of the Pooling and Servicing Agreement), any written correspondence pertaining to pending Cardholder inquiries in respect of the Eligible Accounts, and any files and / or written correspondence relating to governmental or regulatory investigations (subject to the exclusion of files or correspondence not permitted to be disclosed under applicable law or regulation) or active litigation in respect of the Eligible Accounts; provided, that “Books and Records” shall not include any comments or text entered onto any Seller Party’s proprietary systems or hard copy prints of such information which are commonly referred to as “collections comments,” or any hardcopy formats containing any Seller Party’s system screen formats. “Business Day” means a day (not being a Saturday or Sunday) on which banks are open for normal banking business in Ohio.

“Cardholder” means a person to whom a Credit Card is issued and in whose name the Account, in connection with which the Credit Card may be used, is established.

“Cardholder Agreement” means an agreement between SOANB and a Cardholder under which one or more Credit Cards are issued or utilized.

“Cardholder Dispute” means, as to any Eligible Account, any billing dispute raised by a Cardholder which arises out of or relates to the business or operations of any of the Account Assets prior to the Transfer Date.

“Cardholder List” means the Cardholders’ names, telephone numbers, e-mail addresses and physical addresses for the Eligible Accounts which shall be set forth in the Closing Tapes delivered to the Purchaser Parties on the Transfer Date.

 

 

“Charged Off Account” means any Account as to which the related account balance has been written off, or should have been written off, by SOANB on SOANB’s books on or prior to the Transfer Date in accordance with SOANB’s normal and customary policies as in effect on the date of this Agreement including, without limitation, any Account which is more than one hundred seventy nine (179) days contractually past due as of the Transfer Date.

“Charming Shoppes” has the meaning set forth in the recitals.

“Closing” has the meaning set forth in Section 4.

“Closing Date” means the Transfer Date.

“Closing Statement” means a closing statement in the form of Exhibit 1, together with a calculation of the Retained Interest in the form of Exhibit 4.

“Closing Tape” means an Account and Cardholder tape or tapes or files delivered to a PCI compliant FTP site including the following fields of information for all Eligible Accounts as such information exists on SOAI’s system as of up to five (5) Business Days prior to the Transfer Date: name, address, city, state, zip code, account number, total current balance.

“Co-Branded Fashion Bug Visa Program” means a program of SOANB to originate charges on a general purpose credit card, under the Visa ® system, which credit card may be co-branded with the Fashion Bug or Fashion Bug Plus brand names, which accounts (to the extent eligible accounts) shall be replaced by a private label Credit Card by SOANB or the Purchaser, as applicable, in accordance with Section 5.6 hereof.

“Confidential Information” has the meaning set forth in Section 6.3.

“Conveyance Documents” shall have the meaning set forth in Section 10.4(a).

“Credit Balance” means, as to any Eligible Account, any and all amounts owing by SOANB to the Cardholder in respect of such Account as a credit balance whether or not billed.

“Credit Card” means a card issued by SOANB or its Predecessor in Interest and bearing one or more of the Trade Names, including without limitation all credit cards issued under the Co-Branded Fashion Bug Visa Program.

“CSRC” has the meaning set forth in the preamble.

“Debt Cancellation Contracts” means all debt cancellation contracts and programs relating to the Eligible Accounts (but not including any rights under insurance policies with respect thereto).

“Domain Name License” means those certain authorization codes necessary to effectuate the grant of the license to Purchaser’s Affiliate Alliance Data Systems Corporation of the Domain Names.

“Domain Names” means the following domain names:

 

 

www.fashionbugcard.com

www.lbcard.com

www.catherinescard.com

www.petitecard.com

www.fbvisacard.com

“Eligible Account” means any Account which is not an Ineligible Account.

“Estimated Payment Amount” has the meaning set forth in Section 3.2(a).

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Exchangeable Seller Certificate” has the meaning assigned thereto in the Pooling and Servicing Agreement.

“Execution Date” has the meaning set forth in the first paragraph of this Agreement.

“Filing Party” has the meaning set forth in Section 6.8(b).

“Finance Charge Collections” has the meaning assigned thereto in the Pooling and Servicing Agreement.

“Financial Information” has the meaning set forth in Section 9.3.

“Financial Information Computation Date” has the meaning set forth in Section 9.3 hereof.

“GAAP” means generally accepted accounting principles in the United States as consistently applied by the Seller Parties.

“Gross Receivables” means all amounts owing (after deduction of credit balances scheduled as of the Transfer Date and unapplied cash) to the Seller Parties or to the Master Trust from Cardholders with respect to Eligible Accounts; it being understood and agreed that outstanding loans, cash advances and other extensions of credit, billed or posted are intended to be included in Gross Receivables but that Gross Receivables excludes unbilled finance charges and late charges and any other fees, charges and interest assessed on the Accounts.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

“Ineligible Account” means any Account which did not satisfy the requirements for an “Eligible Account” specified in the Pooling and Servicing Agreement as of the date on which it was designated to the Master Trust pursuant to Section 2.6 of the Pooling and Servicing Agreement.

“Interested Parties” means with respect to any Securitization Transaction or other transfer of the Account Balances attributable to the Accounts, brokers, placement agents, rating agencies, certificate holders, investors, counterparties, credit enhancement providers, governmental representatives and other persons that may acquire an ownership or security interest in or

 

 

exposure to the Account Balances (whether or not evidenced by securities), and their respective affiliates, accountants, attorneys and other representatives.

“Investor Certificates” means any one of the certificates including the bearer certificates, the registered certificates or any global certificates executed and authenticated by the Trustee of the Master Trust evidencing an Undivided Trust Interest (as defined in the Pooling and Servicing Agreement), other than the Exchangeable Seller Certificate.

“Liens” means all assignments, security interests, claims, liens, encumbrances or rights or other interests of third parties whatsoever, excluding the liens of any of the Securitization Documents.

“Loan Agreement” means the Third Amended and Restated Loan Agreement, dated as of July 31, 2009, among Charming Shoppes, certain of its subsidiaries, certain financial institutions, and Wells Fargo Retail Finance, LLC, as Administrative Agent, as the same may be amended or modified and in effect.

“Loss” has the meaning set forth in Section 7.1.

“Master Trust” has the meaning set forth in the recitals hereto.

“Milford Agreement” means the Milford Purchase Agreement dated as of the Execution Date between SOAI and ADSI as to the Milford facility and operations.

“Offer” has the meaning set forth in Section 6.6(j).

“Officer’s Certificate” means, with respect to a Person, a certificate signed by a duly authorized officer of such Person.

“Parent Agreement” means the agreement dated as of the Execution Date between Charming Shoppes and WFNNB.

“Payment Amount” has the meaning set forth in Section 3.2.

“Permitted Lien” means (a) Liens for taxes, assessments and other governmental charges or levies not yet due or which are being contested in good faith by appropriate action and have been disclosed to the Purchaser in writing, and (b) Liens created by Purchaser.

“Person” means any legal person, including any individual corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, governmental entity or other entity of similar nature.

“Pooling and Servicing Agreement” has the meaning set forth in the recitals hereto.

“Pre-Closing Period” means the interval from the Execution Date to and including the Transfer  Date.

 

 

“Predecessor in Interest” means WFNNB (as to certain Credit Cards bearing the Lane Bryant Trade Name), Citibank, N.A. (as to certain Credit Cards bearing the Catherines Trade Name), and any special purpose entities created or administered by a Seller Party or any of the foregoing, which in any case is in the chain of title of the Assets to be Sold.

“Preliminary Closing Statement” has the meaning set forth in Section 3.2(a).

“Program Agreements” has the meaning set forth in the recitals hereto.

“Purchased Account” means, from and after the Transfer Date, an Account which is actually purchased by Purchaser pursuant to the terms of this Agreement.

“Purchaser Indemnified Parties” means (a) the Purchaser and its Affiliates, (b) each Person, if any, who controls any of the foregoing with the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and (c) any of their respective former and current officers, directors, members, shareholders, employees and controlling persons.

“Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.

“Retained Interests” means those interests in the Master Trust specified on Exhibit 4 hereto.

“Securities Act” means the Securities Act of 1933, as amended.

“Securitization Assets” has the meaning set forth in Section 2.1.

“Securitization Assets Assumed Liabilities” means all liabilities arising from the ownership or servicing of the Securitization Assets on or after the Transfer Date, provided that no Securitization Asset liability shall be assumed under any indemnity or document that is not listed on Exhibit 5 and no Securitization Asset liability shall be assumed with respect to Paragraphs 11-29 of Exhibit 5; and provided, further, that no liability shall be assumed under any indemnity for violation of securities laws arising from an issuance, sale or other placement of Investor Certificates prior to the Transfer Date or any failure of any Seller Party to perform its obligations with respect to the Securitization Assets prior to the Transfer Date.

“Securitization Assumed Liabilities” means the Securitization Asset Assumed Liabilities and Securitization Servicing Assumed Liabilities.

“Securitization Documents” means the Pooling and Servicing Agreement and the other documents designated on Exhibit 5.

 

 

“Securitization Receivables” means, as of any dates, the Gross Receivables that have been transferred to the Master Trust and have not been reassigned to any Seller Party under the Pooling and Servicing Agreement.

“Securitization Servicing Assumed Liabilities” means all liabilities of the Servicer (as defined in the Pooling and Servicing Agreement) arising under the Securitization Documents on or after the Transfer Date, provided that no servicing liability shall be assumed under any document that is not listed on Exhibit 5 and no servicing liability shall be assumed with respect to Paragraphs 11-29 of Exhibit 5; and provided, further, that no liability shall be assumed for any failure of any Seller Party to perform its servicing obligations under the Securitization Documents with respect to the Securitization Assets prior to the Transfer Date.

“Securitization Transaction” means any (i) financing transaction that is payable from or secured, directly or indirectly, by all or a portion of the Assets to be Sold, (ii) sale or other transfer of all or a portion of the Assets to be Sold or (iii) other asset securitization, secured loan, financing, synthetic risk transfer transaction or similar transaction involving all or a portion of the Assets to be Sold, including any sale to or otherwise involving any conduit.

“Securitization Transfer Agreements” means the assignment and assumption agreements dated as of the Closing Date whereby the Seller Parties assign their respective rights and obligations relating to, and Purchaser or its designated Affiliate assume such rights and obligations under or relating to, the Securitization Documents.

“Seller Indemnified Parties” means (a) the Seller Parties and their Affiliates, (b) each Person, if any, who controls any of the foregoing with the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and (c) any of their respective former and current officers, directors, members, shareholders, employees and controlling persons.

“Seller Interest” has the meaning assigned thereto in the Pooling and Servicing Agreement.

“Seller Parties” has the meaning assigned thereto in the preamble.

“SOAI” has the meaning assigned thereto in the preamble.

“SOANB” has the meaning assigned thereto in the preamble.

“Specified Amendments” means those amendment documents specified on Exhibit 6, which, among other things, shall permit the repayment in full on the Closing Date of the series of Investor Certificates indicated on Exhibit 7 to be repaid in the Closing Date.

“Tax” (and, with correlative meaning, “Taxes”) means any federal, state, local or foreign net income, gross income, gross receipts, windfall profit, property, production, sales, use, license, excise, franchise, employment, payroll, withholding, alternative or add-on minimum, ad valorem, goods and services, value added, transfer, stamp, or environmental tax, or any other tax, custom, duty, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest or penalty, additional tax or additional amount imposed by any governmental authority.

 

 

“Tax Claims” means SOANB’s rights to recover tax refunds with respect to Charged Off Accounts.

“Tax Returns” means any report, return, document, declaration, payee statement or other information or filing required to be supplied to any Tax authority or any person with respect to Taxes.

“Trade Names” means the following names, symbols and/or logos associated with the SOANB credit program:  Fashion Bug, Fashion Bug Plus, Lane Bryant, Lane Bryant Outlet, Petite Sophisticate, Petite Sophisticate Outlet, Catherine’s Plus Sizes and Catherines.

“Transfer Date” means the later of (i) the close of business on October 6, 2009 and (ii) the date that is seven (7) Business Days after the approvals and consents, if any, required under the Bank Merger Act and  the HSR Act have been received, or such other date as the parties may mutually agree.

“Transfer Taxes” has the meaning set forth in Section 6.7.

“TSYS” means Total System Solutions, Inc., a Georgia corporation.

“Valuation Date” means five (5) Business Days prior to the Transfer Date.

 

 

Affiliate of Purchaser designated by Purchaser to purchase from CSRC, all rights, titles and interests of CSRC in and to the following assets and properties as in existence on the Transfer Date (collectively the “Securitization Assets”):

The sale of the Eligible Accounts (including the Account Balances thereunder) and the other Assets to be Sold is made without recourse to the Seller Parties, subject only to representations and warranties of the Seller Parties and indemnification by the Seller Parties set forth in this Agreement.

On the Transfer Date (a) Purchaser agrees to assume, and SOANB agrees to assign and transfer to Purchaser or an Affiliate of Purchaser designated by Purchaser, the Account Assets and the Account Duties arising on or after the Transfer Date, (b) Purchaser agrees to assume or cause an Affiliate of Purchaser designated by Purchaser to assume, and CSRC agrees to assign and transfer to Purchaser or an Affiliate of Purchaser designated by Purchaser, the Securitization Assets and the Securitization Assets Assumed Liabilities described in clause (i) of the definition thereof, and (c) Purchaser agrees to assume, and SOAI shall assign and transfer to Purchaser, the Securitization Servicing Liabilities, each by execution and delivery to Purchaser on the Transfer Date of the Assignment and Bill of Sale (and such other documents as are required to effectuate such sale) and the Securitization Transfer Agreements; and Purchaser agrees to confirm such assumption by execution and delivery to the Seller Parties on the Transfer Date, of the Assumption Agreements.  Notwithstanding any designation of an Affiliate of the Purchaser to assume any obligation hereunder or under any Assumption Agreement, the Purchaser shall remain responsible and liable for the performance of such obligation.

The Seller Parties and the Purchaser shall give all notices required to be delivered and obtain all consent(s) required to be obtained by the Seller Parties or the Purchaser, as applicable, in connection with the sale, transfer and assignment to Purchaser of the Assets to be Sold.  Without limiting the foregoing, if required, within three (3) Business Days of the Execution Date, the Purchaser shall exercise its best efforts to apply for the Bank Merger Act approval and, if required, HSR Act approval.  The Seller Parties will exercise best efforts to provide all information requested by the Purchaser to complete the Bank Merger Act application within two

 

 

Business Days of such request.  The Seller Parties shall seek, but shall not be in breach of this Purchase Agreement if they shall not be able to obtain, confirmations of the then-current ratings of the outstanding Investor Certificates as a result of the Specified Amendments from the applicable rating agencies rating such Investor Certificates.  The Purchaser shall cooperate with the information and data requests of the rating agencies in connection with obtaining such ratings confirmations.

The Seller Parties shall deliver to Purchaser on the Transfer Date the Books and Records; provided, however, that (i) SOANB may retain any part of the Books and Records directly relating to Ineligible Accounts (provided that if such part of the Books and Records also relate to Eligible Accounts, SOANB may retain the original thereof and deliver a copy to Purchaser) and (ii) the Seller Parties may retain copies of any part of the Books and Records for regulatory compliance purposes or pursuant to the Seller Parties’ bona fide document retention policies, subject to the confidentiality obligations and use restrictions otherwise set forth in this Agreement (except with respect to those portions of the Books and Records retained by SOANB as relating to Ineligible Accounts).  For the avoidance of doubt, it is understood and agreed that nothing in this Agreement shall affect any rights a Charming Shoppes subsidiary may otherwise have under a Program Agreement to retain records and information to the extent and as permitted under the Program Agreements.

Nothing contained in this Agreement, or in any document executed in connection herewith, shall be deemed to transfer any of the Seller Parties’ right, title and interest in, and the Assets to be Sold shall not include, the Ineligible Accounts, any other charged-off accounts owned by SOANB acquired by SOANB from unaffiliated third parties that have not been transferred to the Master Trust(and for which the accounts receivable related thereto have been written off by SOANB), the Seller Parties’ names or marks used in association with the Accounts, the Tax Claims, any rights in respect of insurance policies relating to Debt Cancellation Contracts or any other asset of the Seller Parties not specifically identified in Section 2.1 (the “Excluded Assets”) and Purchaser shall have no obligations or liabilities with respect to any Excluded Assets.

SOAI’s obligations with respect to the servicing of the Eligible Accounts and the Books and Records shall end on the Transfer Date and shall be assumed and performed by Purchaser as of the Transfer Date, and the costs associated therewith shall be assumed by Purchaser as of the Transfer Date.

 

 

 

 

Amount rendered thereby shall be final.  Any payment (including interest) required by either the Seller Parties or Purchaser based on the final determination of the Adjustment Amount shall be made no later than five (5) Business Days following receipt of notice of the final determination.  The net amount due by either party shall be accompanied by interest on such amount calculated on the basis of the federal funds rate, for each day commencing on the later of the Transfer Date or the Closing Date, as the case may be, through and including the date of such payment.  The fees and disbursements relating to any such determination by the independent accountants shall be borne by the non-prevailing party or allocated proportionately between the parties in the event that each party prevails as to some disputed items.

The closing in respect of the sale and purchase of the Assets to be Sold (the “Closing”) shall take place on the Transfer Date (or such other date as may be mutually agreed to by the parties, it being agreed that in the absence of agreement, the Closing shall take place on the Transfer Date) and shall take place through the wire transfer of the Estimated Payment Amount, and facsimile exchange or other electronic transmission, together with subsequent overnight courier exchange, of the required closing documents and upon receipt by the Seller Parties of such payment and facsimile or electronically transmitted documents, hand-delivery to Purchaser’s representative, or delivery to a PCI compliant FTP site to which Purchaser’s representative shall have access, of the Closing Tape.

During the Pre-Closing Period the Seller Parties shall provide Purchaser with such information related to the Assets to be Sold and such access to its employees to discuss such information, in each case, as agreed by the parties in good faith that is reasonably required by Purchaser to facilitate the sale, transfer and assignment of the Assets to be Sold by the Transfer Date in accordance with this Agreement.

During the Pre-Closing Period, but in no event prior to the date on which the Bank Merger Act and HSR Act approvals, if required, shall have been obtained, Purchaser shall be entitled to communicate with and deliver information and other communications to Cardholders of the Eligible Accounts concerning the transactions contemplated by this Agreement and the business and operations of Purchaser as approved in advance by SOANB in its reasonable discretion (including written correspondence and messages on SOANB’s customer website) . In furtherance thereof, SOANB, if so requested by Purchaser, shall on behalf of Purchaser, and subject to SOANB’s normal insertion and review and approval requirements, insert a communication from Purchaser to the Cardholders of the Eligible Accounts in all periodic billing statements (mail or electronic) advising of the purchase and of any terms or changes which Purchaser proposes to make.  In addition to the foregoing, SOANB will at the written request of Purchaser deliver a file of the names and address of Cardholders of the Eligible Accounts to Purchaser for the sole purpose of enabling Purchaser to effect a single, simultaneous blanket

 

 

mailing to all Cardholders after the date on which the Bank Merger Act and HSR Act approvals, if required, shall have been obtained, informing such Cardholders of the expected Transfer Date and of any terms or changes which will be imposed or made by Purchaser effective as of the Transfer Date.  Except for costs such as envelopes and postage (except for excess postage caused by the insertion of any such communications which shall be borne by Purchaser) which would otherwise be incurred by SOANB in connection with the billing statement referred to in the second sentence of this Section 5.2, Purchaser shall pay all of the costs of communications referred to in this Section.  All notices and forms provided by Purchaser shall comply with all applicable laws and regulations.

Except as may be otherwise required by law or regulatory requirement (including the rules of any national securities exchange on which any Seller Party’s affiliates’ securities are listed), or unless Purchaser otherwise consents in writing (which consent shall not be unreasonably withheld), during the Pre-Closing Period:

 

 

SOANB shall execute and deliver to Purchaser or such other party as appropriate such documents as are necessary to enable Purchaser to acquire the customer service toll-free numbers associated with the Accounts by the Transfer Date.

During the Pre-Closing Period, SOANB will perform its obligations under, and administer, the Debt Cancellation Contracts in the ordinary course of business consistent with past practices (except as otherwise required hereunder or under the Ancillary Agreements).

On and prior to the Transfer Date the Seller Parties shall take all actions required in order to enable the Seller Parties to transfer the Assets to be Sold to Purchaser free and clear of all Liens on the Transfer Date, other than Permitted Liens.  Except for the Specified Amendments, no Securitization Document shall be amended, modified or supplemented in any respect (including, without limitation, for the purpose of issuing any Investor Certificate) without the consent of the Purchaser during the Pre-Closing Period.

The Credit Cards issued under the Co-Branded Fashion Bug Visa Program shall either be closed or shall, if eligible, be converted to private label Credit Cards on or prior to January 8, 2010.  The responsibility and expense of such conversion shall be borne by (i) the Purchaser, if the Transfer Date shall occur prior to November 1, 2009, or (ii) the Seller Parties, if the Transfer Date shall occur after November 1, 2009.  If the Purchaser shall be responsible for such conversion, the Purchaser shall complete the conversion on or prior to January 8, 2010.  The Account Balance under a Credit Card issued under the Co-Branded Fashion Bug Visa Program shall be the Account Balance under the replacement private label Credit Card to the related Cardholder.

The Seller Parties shall be responsible for final resolution of all Cardholder Disputes (involving matters within control of the Seller Parties) of which the Seller Parties receive notice on or before the Transfer Date.  The Seller Parties shall either resolve such Cardholder Disputes prior to the Transfer Date in accordance with their normal procedures and applicable law and regulations, or if they are unable to so resolve the Cardholder Dispute, mail such acknowledgements as are required by law or regulation, and promptly furnish to Purchaser all materials relating to the Cardholder Dispute.

 

 

However, the definition of “Confidential Information” specifically excludes information which:

 

 

confidentiality agreement provided by or approved in writing by the non-disclosing party, and that it keeps all such information in confidence.  Each party covenants that at all times it shall have in place procedures designed to assure that each of its employees who is given access to the other party’s Confidential Information shall protect the privacy of such information.  Each party acknowledges that any breach of the confidentiality provisions of this Agreement by it will result in irreparable damage to the other party and therefore in addition to any other remedy that may be afforded by law any breach or threatened breach of the confidentiality provisions of this Agreement may be prohibited by restraining order, injunction or other equitable remedies of any court.  The provisions of this Section 6.3 will survive termination or expiration of this Agreement.

 

 

Subject to the terms of the Securitization Transfer Agreements, commencing on the Transfer Date Purchaser shall have the right to take, or cause to be taken, such action to enforce Purchaser’s rights with respect to any Purchased Account as Purchaser may deem necessary or appropriate in the circumstances.  Upon Purchaser’s request, SOANB shall execute in favor of Purchaser such Account-specific assignment documents as may be reasonably necessary to allow Purchaser to pursue, in Purchaser’s own name, collection or enforcement action on the Purchased Accounts.  SOANB hereby constitutes and appoints Purchaser its true and lawful attorney-in-fact for such purpose, with full power of substitution in the premises, which appointment shall include (but shall not be limited to) the power to demand, sue for, collect and receive any and all amounts owing at any time on any Purchased Account and owed to Purchaser, and to endorse checks, drafts, orders and other instruments tendered in payment of any Account and to settle, compromise, prosecute or defend