BHB 10-K 2008 Exhibit 10.22



Exhibit 10.22


CREDIT CARD ACCOUNT PURCHASE AGREEMENT


            This
Credit Card Account Purchase Agreement ("Agreement") is made as of this
5th day of December, 2008 (the "Effective Date"), by and between U.S. Bank
National Association ND, d/b/a Elan Financial Services, a national bank with its main
office located at 4325 17th Ave. SW, Fargo, North Dakota 58103
("Purchaser"), and Bar Harbor Bank & Trust, a Maine financial institution
with its corporate offices located at 82 Main Street, Bar Harbor, ME 04609
("Seller"). 


RECITALS


           
WHEREAS, Seller is the issuer of MasterCard- or Visa-branded credit card accounts; and


           
WHEREAS, Seller desires to sell and transfer and Purchaser desires to purchase the
Accounts (as defined below) on November 30, 2008 (the "Closing Date") as well as
all Account balances owed by Cardholders (as defined below) on such Accounts; and 


           
WHEREAS, Purchaser desires to convert the Seller’s Accounts and their respective
balances to the Purchaser’s own processing platform and Seller agrees to assist in
this effort;


            NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for
other good and valuable consideration, Purchaser and Seller agree as follows:


AGREEMENT


I.  DEFINITIONS


	A.		For
    purposes of this Agreement and except as otherwise specifically set forth in the text of
    the Agreement, capitalized terms shall have the meanings specified in Exhibit A,
    attached hereto and incorporated by reference. If there is a conflict between the
    definition ascribed to a capitalized term defined herein and the same term defined in
    another agreement entered into by the parties to this Agreement, the definition set forth
    in this Agreement shall control for the purposes of this Agreement and any Exhibits and
    Schedules attached hereto or referenced in this Agreement.


  
  			


  
  	B.		All terms defined
    in this Agreement shall have the same meaning in any Exhibits and Schedules attached
    hereto or referenced in this Agreement. 


  
  			
	C.		Other terms
    defined herein shall have the meanings set forth in the context of their use.




 



II.  GENERAL RIGHTS AND RESPONSIBILITIES




	A.		Accounts to be
    Sold


  
  			
			1.	Seller agrees to
    sell, and Purchaser agrees to purchase open Accounts and closed Accounts with a balance,
    as they exist as of the Seller’s close of business on the Closing Date (separately
    and collectively, the "Accounts to be Sold"). Accounts to be Sold shall not
    include any Ineligible Account as defined in Section II.A.2. below.
				
			2.	"Ineligible
    Account" means an Account: 	which has been identified in the Seller’s processing system as deceased, or with
        respect to which the Cardholder obligated on such Account has died before the Closing Date
        and there is no remaining Cardholder obligated on such Account;

      
	which as of the Closing Date was or should have been canceled or blocked because (i) an
        applicable Cardholder has notified Seller that the Credit Card was lost or stolen;
        (ii) fraud (either in connection with the use of, the application for, or the
        establishment of such Credit Card) or unauthorized use occurred; or (iii) an
        applicable Cardholder notified Seller (or Seller otherwise became aware or should have
        become aware using Seller’s Policies and Procedures) that fraud or unauthorized use
        may have occurred in connection with any such Account; 

      
	with respect to which any Cardholder obligated on such Account is, or within thirty (30)
        days after the Closing Date has filed to be, a debtor in a proceeding instituted under the
        United States Bankruptcy Code or any bankruptcy, insolvency or other law for the relief of
        debtors prior to the Closing Date and for which, other than such Cardholder, there is no
        other responsible Cardholder obligated on the Account; or any such Account where the
        Cardholder is working on the Closing Date with Seller or a consumer credit counseling
        service for altered pay-off terms; 

      
	which is, as of the Closing Date, five or more payments past due; 

      
	which was or should have been written off prior to the Closing Date in accordance with
        Seller’s customary accounting practices; 

      
	which has been closed in accordance with Seller’s Policies and Procedures and has a
        balance that is equal to or less than zero as of the Closing Date; 

      
	which as of the Closing Date is subject to any lien, interest, or right of any affiliate
        of Seller or any third party; or is an Account that is securitized; 

      
	which as of the Closing Date has an annual percentage rate on any balance that cannot be
        changed by Seller because of the terms or provisions of the Cardholder Agreement or any
        marketing materials for such Account or any Requirements of Law (including, but not
        limited to, Accounts subject to a consumer credit counseling service payment plan
        agreement or court order, but specifically excluding any Accounts subject to the
        Servicemembers Civil Relief Act as of the Closing Date); 

      
	which as of the Closing Date is not governed by the terms of a Cardholder Agreement; 

      
	on which there exists a billing dispute as of the Closing Date, excluding billing
        disputes relating to a purchase; 

      
	which as of the Closing Date has an outstanding compliance or arbitration case that has
        not been decided and processed by Seller accordingly; or 

      
	which as of the Closing Date is the subject matter of current litigation (or past
        litigation but with appeals available) or similar dispute with Seller.


    
				
	B.		Purchase Price,
    Assignment and Transfer of Accounts to be Sold.
				
			1.	Purchase Price.
    The purchase price of the Accounts to be Sold (the "Purchase Price") shall be
    calculated as follows: 100% of the Principal Balance as of the Cut-Off Time of the
    Accounts to be Sold, plus the Premium described in Schedule A. 
				
			2.	Assignment.
				
				a.	Upon and as of the Closing Date,
    subject to the satisfaction or waiver of each condition precedent specified in Section X
    of this Agreement, Seller hereby sells, assigns, transfers, and conveys to Purchaser and
    Purchaser purchases, all of Seller’s right, title and interest in and to all of the
    following assets (collectively, the "Assets to be Sold"):	the Accounts to be Sold;

      
	all Related Receivables;

      
	the Customer Base of the Accounts to be Sold;

      
	the Credit Cards and all instruments and other Account Documentation relating to the
        Accounts to be Sold;

      
	any rights or claims which Seller may have against any third Persons with respect to any
        indebtedness owing or purportedly owing on any Account to be Sold (which transfer of such
        rights and claims to Purchaser shall not affect Purchaser’s rights to recourse,
        reimbursement and sale (repurchase by Seller) described in Section II.C. below with
        respect to any Account sold to Purchaser);

      
	all of Seller’s rights pursuant to the Cardholder Agreements governing the Accounts
        to be Sold and the related Credit Cards; and

      
	all rights to any interchange fees paid or payable from a National Association with
        respect to such Accounts to be Sold associated with Cardholder transactions that occur
        after the Cut-Off Time. 


    
					
				b.	Seller for itself and its
    successors or assigns covenants to and agrees with Purchaser and its successors and
    assigns that Seller shall execute all documents that Purchaser may reasonably require to
    evidence Purchaser’s ownership of the Accounts to be Sold. Seller shall cooperate
    with Purchaser in preparing, executing and delivering any bills of sale, assignments, or
    other documents, if any, as Purchaser, or counsel for Purchaser, may reasonably require
    from time to time for purposes of transferring the Accounts to be Sold to Purchaser,
    evidencing Purchaser’s ownership of the Accounts to be Sold, or carrying out any of
    the other objectives of this Agreement.
					
				c.	Insofar as the same may be
    necessary to facilitate the preservation or exercise of Purchaser’s rights and powers
    created or transferred by this Agreement, Seller hereby constitutes and appoints Purchaser
    and its successors and assigns (and the officers, agents, employees or representatives
    thereof) the true and lawful attorney or attorneys of Seller, with full power of
    substitution, for Seller and in Seller’s name and stead or otherwise, by and on
    behalf of and for the benefit of Purchaser and its successors and assigns, to demand and
    receive the Assets to be Sold and from time to time to institute and prosecute in the name
    of Seller or otherwise, at the expense and for the benefit of Purchaser and its successors
    and assigns, any and all proceedings at law, in equity or otherwise that Purchaser and its
    successors and assigns may deem proper in order to enforce any claim, right or title of
    any kind in and to the Assets to be Sold and to defend or compromise any and all actions,
    suits or proceedings with respect to any of the Assets to be Sold and to all such other
    acts and things in relation thereto as Purchaser and its successors and assigns shall deem
    desirable, Seller hereby declaring that the appointment hereby made and the power hereby
    granted are coupled with an interest and are and will be irrevocable by Seller in any
    manner or for any reason except as provided otherwise in this Agreement.
					
				d.	Seller shall take no action after
    the Closing Date that would be inconsistent with the effective transfer by Seller to
    Purchaser hereunder as of the Closing Date of Seller’s entire right, title and
    interest in and to the Accounts to be Sold. The parties agree that the transactions
    contemplated herein constitute a sale and assignment of the Accounts to be Sold to
    Purchaser and not a loan.
					
			3.	Seller shall provide
    Purchaser, no later than five (5) Business Days after the Closing Date, with all necessary
    system reports to support the Preliminary Purchase Price. No later than ten (10) Business
    Days following the receipt of such information from Seller, Purchaser shall prepare a
    Preliminary Closing Statement, in the form set forth in Schedule A, setting forth the
    calculation of the Preliminary Purchase Price. Payment terms relating to the Preliminary
    Purchase Price are set forth in Section II.B.5., below.
					
			4.	Within forty-five
    (45) days after the Conversion Date, Purchaser shall prepare a Closing Statement, a form
    of which is attached hereto as Schedule A-1. The Closing Statement will be used in part to
    identify adjustments of the Preliminary Purchase Price based upon changes in
    identification of Accounts to be Sold, including, without limitation, Accounts to be Sold
    that should have been identified as Ineligible Accounts. Payment terms relating to the
    Closing Payment are set forth in Section II.B.5., below. 
					
			5.	Seller shall provide
    Purchaser with written instructions designating the deposit account to which the
    Preliminary Purchase Price and Closing Payment shall be transferred or deposited by wire
    transfer or ACH. The Preliminary Purchase Price shall be made no later than five (5)
    Business Days following presentation and mutual agreement on the Preliminary Closing
    Statement. The Closing Payment shall be made to Seller no later than five (5) Business
    Days after presentation and mutual agreement of the Closing Statement.
					
			6.	If within fifteen
    (15) Business Days after Seller’s receipt of the Preliminary Closing Statement or the
    Closing Statement, Purchaser and Seller do not mutually agree on any line item in the
    Preliminary Closing Statement or the Closing Statement (other than the Preliminary
    Purchase Price or the Closing Payment), then Seller shall notify Purchaser in writing of
    all line items in dispute. Within fifteen (15) Business Days after Seller’s notice to
    Purchaser that some line items remain in dispute, the parties shall contract with an
    independent public accounting firm mutually acceptable to Seller and Purchaser to audit
    the line items in dispute on the Preliminary Closing Statement or the Closing Statement
    and any other items that must be reviewed to resolve the dispute. The cost of such audit
    and the preparation of the revised Preliminary Closing Statement or the Closing Statement
    (respectively the "Audited Preliminary Closing Statement" or "Audited
    Closing Statement") shall be shared equally between Purchaser and Seller. The Audited
    Preliminary Closing Statement or Audited Closing Statement prepared by such accounting
    firm shall be final, conclusive and binding on the parties, absent manifest error, for
    matters covered thereby and a judgment may be entered thereon. The Audited Preliminary
    Closing Statement or the Audited Closing Statement shall be in a form substantially
    similar to the Preliminary Closing Statement or the Closing Statement, except that they
    will reflect either the Preliminary Purchase Price or the Closing Payment established by
    the third party auditor.
					
	C.	Recourse and
    Repurchase Obligations. 
					
		1.	Purchaser’s
    purchase of the following Accounts to be Sold is subject to the full recourse terms
    described below: 
					
				any Account that is two or more payments past due as of the Cut-Off Time, but less than
        five payments past due as of the Cut-Off Time, or any Account that contains the same
        Cardholders as such delinquent Account; 

      
	any Account the balance of which is ten percent (10%) or more over the applicable credit
        limit as of the Cut-Off Time; 

      
	the Secured Account balances as of the Cut-Off Time; and 

      
	any Account described in Section VI.B., below (in which it has been determined that
        there is an inaccuracy or misrepresentation with respect to any representation or
        warranty). 


    
					
			No later than thirty
    (30) days following the date Purchaser received the data regarding Accounts to be Sold
    from Seller, except in the case of an Account described in Section VI.B., Purchaser shall
    provide to Seller a list of the Accounts to be Sold that are subject to this Section II.C.
    For a period of one (1) year following the Conversion Date, upon demand by
    Purchaser, Seller shall repurchase an Account listed in this Section II.C.1. by
    paying to Purchaser a purchase price equal to the principal balance as of the repurchase
    date, which means the net amount, including interest, fees, and any other charges owing by
    a Cardholder to Purchaser on the Cardholder’s Account, of any credit balance in favor
    of the Cardholder, and less disputed items as recorded in the periodic statement of such
    Account most recently rendered prior to the repurchase date, plus all debits and less any
    credit properly posted to such Account pursuant to the terms of the Cardholder Agreement
    as of the repurchase date and, at Purchaser’s discretion, in addition to the
    principal balance, the Premium for said Account, minus the revenue Purchaser collected on
    such Account(s), plus Purchaser’s reasonable expenses, regardless of whether the
    Account is then in default, deemed uncollectible by Purchaser, charged off by Purchaser,
    is or has been subject to fraudulent activity, or over the credit limit or is otherwise
    impaired. 
					
		2.	Within ninety (90)
    days after the Conversion Date, if Purchaser determines that any of the Accounts to be
    Sold that were sold to Purchaser should have been deemed to be an Ineligible Account as of
    the Closing Date, Purchaser shall so notify Seller and Seller shall repurchase the
    Ineligible Account(s) by paying to Purchaser, a purchase price equal to the principal
    balance as of the date Purchaser requests repurchase, which means the net amount,
    including interest, fees, and any other charges owing by a Cardholder to Purchaser on the
    Cardholder’s Account, of any credit balance in favor of the Cardholder, and less
    disputed items as recorded in the periodic statement of such Account most recently
    rendered prior to the repurchase date, plus all debits and less any credit properly posted
    to such Account pursuant to the terms of the Cardholder Agreement as of the repurchase
    date, and, at Purchaser’s discretion, in addition to the principal balance, the
    Premium for such Ineligible Account(s), minus the revenue Purchaser collected on such
    Ineligible Account(s), plus Purchaser’s reasonable expenses. Failure by Purchaser to
    identify within such ninety days any Accounts to be Sold to be repurchased hereunder shall
    result in forfeiture of Purchaser’s right to require repurchase hereunder. 
					
		3.	Payments pursuant to
    any of the repurchase obligations set forth in Sections II.C.1. and 2., above and 4.
    below, or pursuant to Section VI.C., shall be made via wire transfer if the
    repurchase occurs during the Interim Servicing Period, or via ACH if the repurchase occurs
    after the Interim Servicing Period or if there is no Interim Servicing Period, within five
    (5) Business Days after notice by Purchaser. Purchaser will execute and deliver to Seller
    any documents reasonably necessary to reassign and transfer any purchased Account(s) to
    Seller, and will take all steps reasonably necessary to facilitate the transfer of the
    Account(s), including title therein, back to Seller. Following the repurchase of an
    Account by Seller hereunder ("as is" and without recourse to Purchaser),
    Purchaser will close the Account on its books, and Seller shall own, have full servicing
    responsibility for, and assume all obligations with respect to, such Account(s) (whether
    arising before, on, or after the Closing Date). Purchaser shall be responsible for
    necessary reporting to a credit bureau related to the Accounts and Purchaser’s
    records, and Seller shall be responsible for any credit bureau reporting necessary related
    to the continued existence and collection, if any, of the Account(s) by Seller.
					
		4.	By no later than the
    Closing Date, Seller shall provide Purchaser with a list of Accounts that have credit
    limits or balances that exceed $50,000, along with the required financial documents
    pursuant to Section II.F. Purchaser will apply Purchaser’s established underwriting
    criteria to the Accounts. If Purchaser does not approve the Account(s), Seller shall
    execute a separate Full Recourse Agreement on each Account, and the Account(s) will then
    become Full Recourse Account(s). If Purchaser has purchased such Accounts and Seller fails
    to execute any Full Recourse Agreement with respect to any such Account, Seller, on
    Purchaser’s written demand for repurchase, shall repay to Purchaser the principal
    balance, which means the net amount, including interest, fees, and any other charges owing
    by a Cardholder to Purchaser on the Cardholder’s Account, of any credit balance in
    favor of the Cardholder, and less disputed items as recorded in the periodic statement of
    such Account most recently rendered prior to the repurchase date, plus all debits and less
    any credit properly posted to such Account pursuant to the terms of the Cardholder
    Agreement as of the repurchase date, and, at Purchaser’s discretion, in addition to
    the principal balance of said Account(s), the Premium for said Accounts, minus the revenue
    Purchaser collected on such Account(s), plus Purchaser’s expenses. 
					
	D.	Assumption of
    Liabilities. Except as otherwise expressly set forth herein or, if applicable, in the
    Interim Servicing Agreement, upon the satisfaction or waiver of each condition precedent
    specified in Section X.A of this Agreement, Purchaser shall and hereby does assume
    performance and payment of the following obligations, each without the execution or
    delivery of any additional document, on the Closing Date:
					
			All of the obligations of Seller arising after the Cut-Off Time to perform under the
        Cardholder Agreements, and the Security Agreements included in the Accounts to be Sold
        (excluding obligations for Account Benefits pursuant to Article III); and

      
	All of the obligations of Seller arising after the Cut-Off Time to perform with respect
        to the Accounts to be Sold under any Requirements of Law, except for those charges:
        (a) arising from Seller’s violation on or before Cut-Off Time to any
        Requirements of Law; or (b) arising from or relating to any special assessments with
        respect to periods up to and including the Cut-Off time (collectively, the "Assumed
        Liabilities"). Prior to the Conversion Date, the payments to be made by Purchaser to
        Seller under this section shall be made pursuant to Article III of the Interim Servicing
        Agreement. 

      
	Except as provided above, Purchaser shall not assume any liability, commitment, or any
        other obligation of Seller, whether absolute, contingent, or otherwise known or unknown of
        any nature, kind or description whatsoever, arising from or related to the operation of
        the Seller’s business prior to, at or after the Cut-Off Time. 

      
	Seller expressly retains all liability arising out of or from the Account Benefits,
        including, but not limited to, points and the cost of the possible redemption of such
        points prior to the Cut-Off Time. Purchaser assumes liability for points and redemption
        thereof arising at or after the Cut-Off Time.


    
					
	E.	Cooperation with
    Sale and Conversion Manager. Seller shall cooperate fully with Purchaser in connection
    with the sale and transfer of the Accounts, and shall designate a dedicated Conversion
    Manager within its organization to act as the primary contact for Purchaser. The
    Conversion Manager will be familiar with this Agreement and have decision making authority
    and the ability to coordinate activities contemplated under this Agreement to help
    facilitate the sale and transfer of the Accounts to be Sold. Seller and Purchaser shall
    schedule and attend meetings necessary to facilitate the smooth transfer of the Accounts
    to be Sold, and shall establish and adhere to timelines set up, as described further in
    Schedule B, to facilitate the transfer of the Accounts to be Sold. Should Seller be party
    to an agreement with a third party who is performing any functions related to the Accounts
    to be Sold (including, but not limited to processing or reward administration), Seller
    shall work with such third party to determine their respective obligations with respect to
    their agreement and facilitate the timely cancellation of any such agreement as well as
    timely transfer of such Accounts, following as closely as reasonably possible the
    timelines established by Purchaser.
					
	F.	Information
    Access, Records Retention and Risk of Loss. Seller shall provide Purchaser and its
    officers, accountants, counsel and other representatives reasonable access to review,
    subject to reasonable security requirements, during Seller’s normal business hours
    through a mutually agreeable process, upon three (3) business days prior notice: (i)
    throughout the period commencing on the date of this Agreement, the Account Documentation
    and Seller’s Policies and Procedures and (ii) commencing on the Closing Date, such
    other properties, reports, books, contracts, and customer records that relate to the
    Accounts to be Sold.. In the case of Purchaser’s review of Seller’s Policies and
    Procedures, Purchaser and its officers, accountants, counsel and other representatives,
    unless otherwise permitted by Seller in writing, may not photocopy any of Seller’s
    Policies and Procedures and may retain only summary notes regarding the same. In addition,
    Seller shall provide Purchaser with portfolio summary reports (as further described below
    in Section II.G.) within three (3) Business Days after such information becomes available
    in each month prior to the Closing Date. Seller will, for a period of seven (7) years
    after the date of this Agreement, or longer as necessary for compliance with the
    Requirements of Law, maintain in a fully accessible fashion the Account Documentation and
    all of its books and records, including, without limitation, information received from
    Cardholder applicants for purposes of USA PATRIOT Act compliance, relating to the Accounts
    to be Sold. Seller will, upon Purchaser’s reasonable request, transfer or make
    available to Purchaser Account Documentation, books and records as Purchaser may request,
    and will, upon Purchaser’s request, provide witnesses and/or signed affidavits to
    establish the reliability and authenticity of such books and records. Where any Account
    included in Accounts to be Sold has a credit limit or balance greater than fifty thousand
    dollars ($50,000), Seller shall provide Purchaser with copies of financial information
    provided to Seller by the Cardholder in connection with the establishment and maintenance
    of such Account, provided, however, that if Seller is unable to provide such financial
    information, Seller acknowledges that Purchaser may request such information from the
    Account obligor. While such documentation and information is in the control of Seller, the
    cost to transfer or make available Account Documentation and books and records to
    Purchaser as provided herein shall be borne by Seller. Further, the risk of loss, damage
    or destruction from any cause to any Account Documentation of Accounts to be Sold shall be
    borne by Seller at all times between the date hereof and the date such Account
    Documentation or Accounts to be Sold is in Purchaser’s possession, and once in
    Purchaser’s possession, thereafter by the Purchaser. 
					
	G.	Master File
    Information. Seller shall transmit to Purchaser, in a secure format (which may
    include, but is not limited to, an electronic and encrypted transmission) as requested by
    Purchaser, Cardholder information reasonably necessary to facilitate Purchaser’s
    timely mailing of change in terms and other notice(s), as described in this Section II.G.,
    as well as determination of the Purchase Price as described in Section II.B.1. Seller
    agrees to provide Purchaser, at Seller’s cost and up to four (4) times prior to the
    Conversion Date (according to the timeline set forth in Schedule B), with master file
    information about the Accounts to be Sold in a format prescribed and containing
    information requested by Purchaser, which will include, without limitation, Cardholder
    name, address and social security number. Each transmission of the master file information
    provided hereunder shall have been produced no earlier than five (5) Business Days prior
    to the date the information is transferred to Purchaser and shall be current as of said
    production date and contain all of the Accounts to be Sold. In addition to other uses in
    connection with the transfer of the Accounts to be Sold, the master file information will
    be used to identify Accounts for which Purchaser needs more information. Seller shall
    research and provide an answer to any request made by Purchaser for more information
    within five (5) Business Days of each request by Purchaser. Seller shall provide to
    Purchaser, no later than ten (10) Business Days after the Conversion Date, the last six
    months of Account statements for each Account to be Sold. 
					
	H.	Notices to
    Cardholders and Issuance of Replacement Credit Cards.
					
			Prior to the Conversion Date, Purchaser, at its own expense and upon prior written
        notice to Seller, shall send out one or more notices to Cardholders informing them of the
        termination of Seller’s credit card plan and the substitution of Purchaser’s
        plan, any changes to certain benefits offered to Cardholders and any new Account Benefits,
        and certain changes in terms to be made to the Accounts to be Sold all in a manner which
        serves to preserve and promote the goodwill and business reputation of both Seller and
        Purchaser. Purchaser may require Seller to notify certain Cardholders of notice of
        termination of such Cardholders’ Accounts with Seller. Notices will be sent
        sufficiently in advance of the Conversion Date so as to comply with any applicable
        Requirements of Law. Prior to the mailing of any change in terms notice(s) to Cardholders,
        such notices may be reviewed and approved (such approval rights shall not include approval
        of any Account terms, such as pricing, new Account Benefits or changes to the Cardholder
        Agreements) by Seller, which approval shall not be unreasonably withheld or delayed and
        shall be deemed given if Seller does not reply within ten (10) Business Days following
        Purchaser’s request for review. 

      
	Based upon the current status of each Account to be Sold, Purchaser will, in its sole
        discretion, determine whether or not to continue or cancel an Account. Seller understands
        that Purchaser will be relying on information received from Seller and its current
        processor (if any) for purposes of making these decisions and, to the extent such
        information is accurate, Purchaser will hold Seller harmless with respect to these
        decisions. The notices described in Section II.H.1. above will inform Cardholders, as
        appropriate, that either the Cardholder will be receiving a new Credit Card from
        Purchaser, or the Cardholder’s account with Seller is being terminated and no new
        Credit Card will be issued. Purchaser will provide to Seller a list of the Accounts that
        will show which products the Accounts will be converted to, as well as show which Accounts
        will not be issued a new Credit Card. 

      
	In order to facilitate the smooth transfer of balances to Purchaser, Seller shall change
        the cycle dates of the Accounts to be Sold to one cycle so that all Accounts to be Sold
        cycle on the Cut-Off Time, or the last processing date prior to the Conversion Date, to
        ensure that all such Accounts have a final statement with an ending Principal Balance that
        reflects the amount that is transferred as of the Conversion Date. If Seller fails or is
        unable to change the cycle dates of the Accounts to be Sold to one cycle date, the
        Accounts will not be billed for fees and interest beginning after the date of the last
        statement produced by Seller through the end of the first statement period produced by
        Purchaser. This will result in reduced revenue to Seller pursuant to the Joint Marketing
        Agreement between Seller and Purchaser, which will not be reimbursed by Purchaser. 

      
	Seller shall not share with or otherwise communicate to any third party the notices to
        be provided by Purchaser to Cardholders, prior to the mailing of any such notice, except
        with Purchaser’s prior written permission.

      
	In connection with the notification to Cardholders described in Section II.H.1. above,
        Seller authorizes Purchaser, and grants to Purchaser during the term of this Agreement a
        limited license, to use the Seller Marks in accordance with the provisions of this
        Agreement. Seller represents, warrants and covenants that it or an affiliate of Seller is
        and shall remain the sole owner of the Seller Marks, and that it has authority to grant
        the license for such use, and that use of the Seller Marks by Purchaser will not infringe
        upon the trade name, copyright, trademark or other intellectual property rights of any
        third party. Except as otherwise agreed to by the parties, following termination of this
        Agreement Purchaser shall not have the right to disseminate any Cardholder communications
        using the Seller Marks.


    
					
	I.	Seller
    Acknowledgments. Seller acknowledges and agrees to the following: 
					
			it shall be solely responsible for determining the disposition of funds held by Seller
        in connection with an Account to be Sold that is a Secured Account;

      
	if the Accounts to be Sold are branded as "MasterCard" accounts, they will be
        converted to Visa-branded accounts as of the Conversion Date;

      
	it shall be solely responsible for costs incurred with its current third party processor
        (if any) due to trailing transactions that apply to any Account to be Sold following the
        Conversion Date; 

      
	it shall obtain a deconversion date from Seller’s third party processor no later
        than twenty (20) Business Days from the Closing Date, which date must be approved by
        Purchaser; and

      
	it shall be solely responsible for any deconversion fees or other fees or charges
        assessed to Seller by any third party providing servicing, rewards program administration,
        or other services for the Accounts to be Sold. 


    
					
	J.	Collections Rights.
    After the Closing Date, and except where provided elsewhere in this Agreement, Purchaser
    shall have the sole right to make collections with respect to the Accounts to be Sold.
    Notwithstanding the foregoing, prior to the Conversion Date, Seller shall make collections
    on the Accounts to be Sold for the Purchaser pursuant to the terms of an Interim Servicing
    Agreement, if applicable. From the date of this Agreement until the Conversion Date,
    Seller shall not change Seller’s Policies and Procedures with respect to its
    collection practices of the Accounts to be Sold except as may be required by Requirements
    of Law or otherwise as mutually agreed in writing between the parties. 
					
	K.	Compliance with
    the FCRA. Except as provided in Section II.C.3., Seller shall be solely responsible
    for all reporting to credit reporting agencies prior to the Conversion Date as well as
    final reporting to credit reporting agencies relating to the satisfaction of balances of
    Accounts to be Sold (including, but not limited to, notifying the credit reporting agency
    that Accounts have been sold and that the balances are zero). In order to comply with the
    requirements of the Fair Credit Reporting Act, Seller agrees that prior to the Conversion
    Date it shall, in accordance with Purchaser’s specifications and at Seller’s
    cost, provide to Purchaser information that is formatted as specified by Purchaser with
    the date on which each Account to be Sold that is reported to a credit reporting agency as
    being delinquent as of the Conversion Date first went delinquent. Purchaser shall only be
    liable to report on the Accounts to be Sold activity related to Purchaser’s
    experience with the Accounts after the Conversion Date. 
					
					
	L.	Forwarding of
    Notices. From the Effective Date, Seller shall forward to Purchaser within five(5)
    Business Days after its receipt thereof any notice, summons, inquiry (but not general
    Account inquiries), or other information of any kind (including, but not limited to,
    notices of bankruptcy or other insolvency proceedings) relating to, or in any way
    affecting Accounts to be Sold. Any such communication shall be sent by Seller to Purchaser
    in accordance with the procedure described in Section XI.C. of this Agreement.



 


III.  SELLER PROGRAM, ACCOUNT BENEFITS AND CARDHOLDER
SERVICE


	A.	Seller Program.
    After the date of this Agreement and before the Conversion Date Seller will not without
    Purchaser's consent: (1) engage in or participate in any material transaction or incur or
    sustain any material obligation with respect to Accounts to be Sold, except in the
    ordinary course of business; (2) transfer, assign, encumber, or otherwise dispose of, or
    enter into any agreement to transfer, assign, encumber, or dispose of any Account to be
    Sold except in the ordinary course of business; (3) change Seller's Policies and
    Procedures with respect to the Accounts to be Sold except as may be required by
    Requirements of Law (in which case Seller shall promptly notify Purchaser of such change)
    or as mutually agreed between the parties; or (4) conduct its credit card plan in other
    than a normal and regular manner, as it has been previously conducted; or (5) take any
    action that would have a material adverse affect on any Account to be Sold. From the date
    of this Agreement, Seller shall not offer, or enter into an agreement with a third party
    with the intent to offer, to existing and potential Cardholders any Account terms that
    restrict Purchaser's ability to change such terms.
				
	B.	Account Benefits.
				
		1.	To the extent that
    Seller provides, or facilitates through a third party the provision of Account Benefits to
    Cardholders related to use of their Accounts, Seller shall cooperate with Purchaser to
    facilitate the continued enjoyment by Cardholders of the applicable Account Benefit(s) as
    close to the Conversion Date as possible, but may not terminate Seller’s Account
    Benefits prior to the time that Purchaser may communicate Purchaser’s Account
    Benefits to Cardholders. Where a third party is providing one or more Account Benefit(s),
    Seller shall be solely responsible for working with providers of such benefits for the
    timely cancellation of such benefits (which Seller acknowledges was Seller’s decision
    in connection with entering into this Agreement), and Seller shall indemnify and hold
    harmless Purchaser from any claims that a third party Account Benefit provider may have in
    connection with the cancellation of the agreement between such third party and Seller.
    Purchaser may communicate with Cardholders about Purchaser’s Account Benefits
    including, but not limited to, Purchaser’s reward program, if applicable, at anytime
    prior to cancellation or termination of Seller’s Account Benefits. Purchaser’s
    communication of the Purchaser’s Account Benefits will be sent to Cardholders prior
    to the Conversion Date, which may necessitate that such communication occur prior to the
    Closing Date. Purchaser shall work with Seller to ascertain the applicable timelines for
    such communications, some of which may be set forth in Schedule B.
				
		2.	In connection with
    any existing reward program tied to any Account(s) to be Sold, if the reward program
    liability to Cardholders is cash, Seller shall be solely responsible for, and Purchaser
    shall have no liability for any cash reward of Cardholders earned and not paid prior to
    the Closing Date. Purchaser shall be liable for cash rewards earned between the Closing
    Date and the Conversion Date. Seller shall provide to Purchaser within thirty (30) days
    after the Closing Date the amount of cash rewards earned and not paid prior to the Closing
    Date together with supporting information. Within five (5) Business Days after the
    Conversion Date, Seller shall remit payment of cash rewards to qualifying Cardholders,
    subject to reimbursement by Purchaser of an amount equal to cash rewards earned by
    Cardholders between the Closing Date and the Conversion Date upon Purchaser’s receipt
    of an invoice and supporting documentation from Seller for the amounts remitted. If the
    reward program liability consists of a "points" program, which points are
    redeemable for something other than cash, such as travel, services, or merchandise,
    Purchaser will award to Cardholders points equal to their outstanding points as of the
    final redemption period for the points, as established by the Seller or third party
    facilitating such program, if any. Seller acknowledges that the Premium takes into account
    Purchaser’s assumption of any points-based reward liability outstanding as of Closing
    Date. Redemptions that occur prior to the Closing Date are at Seller’s expense. In
    connection with any existing reward program related to any Account(s) to be Sold, Seller
    shall promptly provide Purchaser with the current program rules, and when the first master
    file information is provided (pursuant to Schedule B), provide Purchaser with information
    necessary to identify the Accounts to be Sold that have a reward component. 
				
		3.	Seller shall provide
    Purchaser with electronic files related to reward points as provided by Seller or a third
    party facilitating the reward program, if any, applicable to Accounts to be Sold, in the
    following format:
			a.	a Monthly Cardholder Liability
    Report, which will include the beginning reward point balance plus new points earned for
    the month, less redemptions for the month equaling the ending reward point balance; and
				
			b.	a Cardholder Redemption Report,
    which will list redemptions by Cardholders. 
				
		4.	Seller shall provide
    the Monthly Cardholder Liability Report and the Cardholder Redemption Report for Accounts
    to be Sold pursuant to the following timing: 
				
			a.	the first set of files will be
    provided to Purchaser no later than five (5) Business Days after the last reward point
    accrual date (the last date on which Cardholders can earn reward points for purchases);
    and
				
			b.	files will be provided by the
    fifth (5th) Business Day of each of the months following delivery of the first
    set of files until the Seller’s reward program terminates. The date of termination of
    Seller’s reward program will be the final date on which Cardholders may redeem points
    under the Seller’s reward program. 
				
	C.	Cardholder Service
    Matters.
				
		1.	Seller shall
    discontinue accepting applications for Accounts to be opened upon the earlier of sixty
    (60) days before the Conversion Date, or the launch of the Seller’s credit card
    program pursuant to the terms of the Joint Marketing Agreement, and in any case, pursuant
    to the timing established in Schedule B or, upon mutual agreement. Should Seller receive
    any application for an Account after it has discontinued accepting applications, Seller
    shall forward such application to Purchaser for processing and simultaneously forward a
    letter to the applicant informing such applicant of the discontinuation of the
    Seller’s program and substitution of Purchaser’s program (which letter shall be
    in a standard form approved by Purchaser).
				
		2.	If, at any time
    during the sixty (60) days after the Conversion Date Purchaser credits an Account to be
    Sold for any reason (including, but not limited to, fraud, unauthorized use, billing
    error, or disputes as to quality of goods or services purchased) for any charge which was
    made on an Account to be Sold prior to the Closing Date, Seller will reimburse Purchaser
    for the amount of the credit. Purchaser may decide, in its reasonable discretion, whether
    or not to credit a Cardholder’s Account, and Seller will be obligated to reimburse
    Purchaser under this section even though Purchaser may not have been legally obligated to
    credit the Cardholder’s Account. (For the purpose of illustration only and without
    limiting Purchaser’s discretion, Purchaser may credit an Account to provide good
    Cardholder service and protect both parties’ good will.) Seller authorizes Purchaser
    to offset or charge any amounts due to Purchaser under this section, whether or not such
    charges create overdrafts, against the Correspondent Account under the Joint Marketing
    Agreement between Seller and Purchaser, within five (5) Business Days after receipt of
    notice by Seller from Purchaser describing the credit provided. Seller will only be
    responsible under this section for credits which Purchaser is unable to recover through
    the appropriate channels through reasonable and normal efforts. 
				
		3.	Seller agrees that:
    (1) any pre-compliance case, pre-arbitration case, incoming compliance case, or incoming
    arbitration case on the Accounts to be Sold (all cases presented pursuant to National
    Association dispute and chargeback rules and procedures) notice of which is received by
    Seller within the ten (10) Business Days prior to the Closing Date and for which the date
    that Seller must respond is after the Closing Date, will be promptly forwarded to
    Purchaser for decision and processing; and (2) without Purchaser’s consent, Seller
    shall not accept any resolution (i.e., that Seller or Cardholder will be liable) of any
    pre-compliance case, pre-arbitration case, incoming compliance case, or incoming
    arbitration case for which the date that Seller must respond is within the ten (10)
    Business Days prior to the Closing Date.
				
		4.	Prior to the
    Conversion Date, Seller agrees to use commercially reasonable efforts to clear any
    suspense account entries relating to payments or any chargebacks for the Accounts to be
    Sold. 




 


IV.  COVENANTS
AND AGREEMENTS


	A.	Mutual Covenants
    and Agreements of Seller and Purchaser.In addition to other obligations set forth in
    this Agreement, each of Seller and Purchaser covenants and agrees that:
				
		1.	it shall use
    commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or
    cause to be done, all things necessary, appropriate or desirable hereunder and under the
    Requirements of Law to consummate and make effective the transactions contemplated by this
    Agreement; 
				
		2.	it shall cooperate
    fully with the other party hereto in furnishing any information or performing any action
    reasonably requested by that party, which information or action is necessary to the speedy
    and successful consummation of the transactions contemplated by this Agreement;
				
		3.	it shall use
    commercially reasonable efforts to obtain consents of all third parties and governmental
    bodies necessary for the consummation of the transactions contemplated by this Agreement
    (including, without limitation, and to the extent applicable, requirements of the
    Hart-Scott-Rodino Act); 
				
		4.	it shall furnish to
    the other party hereto all information as is required or requested to be set forth in any
    application or statement to be filed with any state or federal governmental agency or
    authority in connection with the regulatory approval or review, or any National
    Association of the transactions contemplated by this Agreement; and
				
		5.	it shall promptly
    advise the other in writing of any fact that, if existing or known as of the date hereof,
    would have been required to be set forth or disclosed in or pursuant to this Agreement or
    of any fact that, if existing or known as of the date hereof, would have made any of the
    representations contained herein untrue in any material respect. 



 


V.  CONFIDENTIALILTY


	A.	Confidentiality
    Information. Both parties acknowledge that in performing their respective obligations
    hereunder, they may have access to information and/or documentation of the other that is
    of a confidential and/or proprietary nature. 
				
		1.	"Confidential
    Information" includes information of a confidential and/or proprietary nature that
    may be commercial information or information related to each party’s customers or
    consumers. Confidential Information includes, but is not limited to, the following,
    whether now in existence or hereafter created:
				
			a.	all information marked as
    "confidential" or with similar designation; or information which the receiving
    party should, in the exercise of reasonable judgment, recognize to be confidential;
				
			b.	all information protected by
    rights embodied in "know how," trade secrets, and any other non-public
    intellectual property rights;
				
			c.	all business, financial or
    technical information of either party and any of either party’s vendors (including,
    but not limited to credit card account numbers, and software licensed from third parties
    or owned by either party or its affiliates); 
				
			d.	both parties’ marketing
    philosophy and objectives, promotions, markets, materials, financial results,
    technological developments and other similar proprietary information and materials; and
				
			e.	any and all master file
    information of or about customer(s) of either party, of any nature whatsoever, and
    specifically including without limitation, the fact of the existence of a relationship or
    prospective relationship between the providing party and customer(s), all lists of
    customers, former customers, applicants and prospective customers and all personal or
    financial information relating to and identified with such Persons ("Customer
    Information"); provided that all of such information of Seller related to Accounts to
    be Sold shall become Confidential Information of Purchaser upon the Closing Date.
				
			f.	All notes, memoranda, analyses,
    compilations, studies and other documents, whether prepared by the disclosing party, the
    receiving party or others, which contain or otherwise reflect Confidential Information.
				
		2.	Exceptions.
    Except for Customer Information, the term "Confidential Information" excludes
    any portion of such information that the receiving party can establish: (1) to have been
    publicly known without breach of this Agreement; (2) known by the receiving party without
    any obligation of confidentiality, prior to disclosure of such Confidential Information;
    (3) to have been received in good faith by the receiving party, without any
    confidentiality restrictions, from a third-party source having the right to disclose such
    information; (4) to have been independently acquired or developed without violating any of
    the receiving party’s obligations under this Agreement; (5) is required to be
    disclosed in the financial statements of the receiving party or its affiliates, to the
    extent required by applicable accounting principles, or in any regulatory filing; (6) is
    required to be disclosed to a National Association; or (7) is disclosed to its
    affiliates, auditors or counsel who have a need to know such information, provided that
    such affiliates, auditors or counsel agree to be bound by the provisions of this
    Article V. If either party is required by a court or governmental agency having
    proper jurisdiction to disclose any Confidential Information, such party shall promptly
    provide to the other party notice of such request, if permitted by law, so that the other
    party may seek an appropriate protective order; provided, that either party may disclose
    Confidential Information to its regulatory governmental agency or to the relevant National
    Association, if required by the operating regulations of such National Association,
    without prior notice to the other party.
				
	B.	Limited Use of
    Confidential Information and Survival of Obligations. Both parties agree now and at
    all times in the future that all such Confidential Information shall be held in strict
    confidence and disclosed only to those employees or agents whose duties reasonably require
    access to such information. The receiving party shall protect such Confidential
    Information using the same degree of care, but no less than due care, to prevent the
    unauthorized use, disclosure or duplication (except as required for backup systems) of
    such Confidential Information as the receiving party uses to protect its own confidential
    information. Both parties may use the Confidential Information only as necessary for
    performance hereunder and for no other use. Both parties’ limited right to use the
    Confidential Information shall expire upon termination of this Agreement for any reason.
    Both parties’ obligations of confidentiality and non-disclosure, however, shall
    survive beyond their duty to perform and shall survive termination or expiration of this
    Agreement.
				
	C.	Data Security
    Policies and Procedures. Both parties shall establish data security policies and
    procedures to ensure compliance with this section that are designed to: (a) ensure the
    security and confidentiality of Customer Information; (b) protect against any anticipated
    threats or hazards to the security or integrity of such Customer Information; and (c)
    protect against unauthorized access to or uses of such Customer Information that could
    result in substantial harm or inconvenience to any customer. Further, Seller agrees, at
    its own expense, that it shall transfer Confidential Information, especially Cardholder
    Account information, to Purchaser in a secure fashion, which includes, but is not limited
    to, transferring the data electronically and in an encrypted format. If data cannot be
    transferred electronically, Seller and Purchaser shall arrange for Purchaser’s
    representative to travel and collect the data file at Seller’s expense. Seller agrees
    to indemnify and hold Purchaser harmless from all claims, damages or expenses related to
    the loss or unauthorized access resulting from the transfer of such Confidential
    Information by Seller to Purchaser.
				
	D.	Audit Obligations.
    Each party (the "Audited Party") agrees to permit the other (the "Auditing
    Party"), using a mutually-acceptable third party auditor, to audit its compliance
    with this Article V during regular business hours upon reasonable notice to the Audited
    Party. The Audited Party shall provide to the Auditing Party’s auditor copies of
    audits and system test results acquired by the Audited Party in relation to the data
    security policies and procedures designed to meet the requirements set forth above. Any
    audit performed hereunder shall be at the cost of the Auditing Party.
				
	E.	Return or
    Destruction. The parties are required to develop appropriate security measures for the
    proper disposal and destruction of Confidential Information. Upon expiration of the
    receiving party’s limited right to use the Confidential Information, the receiving
    party shall return all physical embodiments thereof to the providing party or shall
    destroy or otherwise dispose of the Confidential Information in the manner requested by
    the providing party. The receiving party shall provide written certification to the other
    that such Confidential Information has been destroyed. Notwithstanding the forgoing, the
    receiving party may retain one archival copy of the Confidential Information, which may be
    used solely to demonstrate compliance with the provisions of this Article V. 
				
	F.	Disclosure to
    Third Parties. If performance by either party, as the receiving party, requires or
    allows disclosure of the Confidential Information to any third parties, then such
    receiving party shall ensure that such third parties will have express obligations of
    confidentiality and non-disclosure, with regard to the Confidential Information, similar
    to the receiving party’s obligations hereunder. Liability for damages due to
    disclosure of the Confidential Information by any such third parties shall be with the
    receiving party. 
				
	G.	Security Breach.
    Purchaser and Seller each shall notify the other promptly following discovery or
    notification of any actual security breach of the information systems maintained by it
    relating to the Accounts to be Sold. The party that suffers the security breach (the
    "Affected Party") agrees to take action promptly, at its own expense, to
    investigate the actual security breach, to identify and mitigate the effects of any such
    security breach and to implement reasonable and appropriate measures in response to such
    security breach, including, but not limited to, immediate remedial action designed to
    prevent any future such occurrence. The Affected Party also will provide the other party
    with all reasonably available information regarding such security breach to assist that
    other party in implementing its information security response program, including, but not
    limited to, the actions taken by the Affected Party in response to such security. The
    Affected Party, to the extent required by Requirements of Law, shall notify affected
    customers of the security breach; provided, that, if the security breach relates to
    Customer Information of a Cardholder, Purchaser shall determine whether Purchaser or
    Seller will send any required notice and the content of any such notice. In either case,
    the Affected Party shall bear all costs related to any such notice. Except as may be
    strictly required by Requirements of Law, the Affected Party will not inform a third
    Person of any such security breach without the other party’s prior written consent;
    however, if such disclosure is required by Requirements of Law, Affected Party shall work
    with the other party regarding the content of such disclosure as to minimize any potential
    adverse impact upon the other party, its clients and customers. 
				
	H.	Public Statements.
    Except as may be required pursuant to a Requirement of Law or permitted pursuant to
    Section II.H. relating to Cardholder communications, neither Seller nor Purchaser, nor any
    of their respective affiliates, shall, either prior to or after the Closing Date, issue a
    press release or make any public announcement or any disclosure to any third party related
    to the transactions contemplated hereby that identifies the other party hereto without the
    prior written consent of such other party. Notwithstanding the foregoing, Seller may
    publicly disclose this Agreement in full or the material terms and conditions of this
    Agreement to the extent its legal counsel deems such disclosure necessary or advisable
    under applicable U.S. and State securities laws and regulations, or the rules of any
    applicable exchange upon which the securities of the Seller’s publicly owned holding
    company are actively traded. 
				
	I.	Terms of Agreement
    as Proprietary Information. Without limitation, this Agreement and the terms of this
    Agreement shall be deemed to be proprietary information of the Purchaser. This
    Article V. shall survive any termination of this Agreement.




 


VI.  REPRESENTATIONS AND WARRANTIES


	A.	Seller and
    Purchaser. As of the date of this Agreement, each of Purchaser and Seller represents
    and warrants to each other as to itself as follows:
				
		1.	It has full right,
    power and authority to enter into and perform this Agreement in accordance with all of the
    terms and provisions hereof, and that the execution and delivery of this Agreement has
    been duly authorized, and the individuals signing this Agreement on behalf of it are duly
    authorized to execute this Agreement in the capacity of his or her office, and to obligate
    and bind the parties, and/or the parties’ subsidiaries and affiliates, in the manner
    described;
				
		2.	The execution and
    performance of this Agreement will not violate the organizational documents or by-laws or
    any material contract or other instrument, Requirement of Law or order to which it has
    been named a party or by which it is bound. The execution and performance of this
    Agreement does not require the approval or consent of any other Person;
				
		3.	There are no material
    actions, suits or proceedings pending or threatened against either party or its affiliates
    or subsidiaries which would adversely affect its ability to perform this Agreement; and
				
		4.	It or one of its
    subsidiaries or affiliates owns all right, title and interest in its marks and it or one
    of its subsidiaries or affiliates has all necessary authority to permit use of its marks
    as contemplated by this Agreement.
				
	B.	Seller. As of
    the date of this Agreement, Seller represents and warrants to Purchaser as follows:
				
		1.	Seller is the sole
    owner of and has good title to the Accounts to be Sold free and clear of all liens,
    encumbrances or adverse claims of any kind or character and is not subject to any offset,
    counterclaim or defense of any kind;
				
		2.	Each of the Accounts
    to be Sold represents a valid and binding obligation of a bona fide Cardholder,
    enforceable in accordance with its terms, subject to bankruptcy, insolvency moratorium and
    other similar laws, and Seller has delivered to Purchaser all documents and records
    necessary to enable Purchaser to legally enforce all terms of the Accounts to be Sold;
				
		3.	The Accounts to be
    Sold, or a substantial portion thereof, are not subject to or bound by any agreement
    between Seller and a governmental agency or court of law or other party with authority
    over Seller that may impair Purchaser’s full ownership and administrative rights or
    create additional responsibilities for Purchaser with respect to such Accounts;
				
		4.	Seller has not
    previously assigned the Accounts to be Sold and has no contractual or other obligation to
    sell or otherwise transfer the Accounts or the indebtedness thereunder to any other party;
				
		5.	Each of the Accounts
    to be Sold, and all documents provided to Cardholders in connection with the Accounts, are
    legal and enforceable in accordance with their terms, and comply with all applicable
    Requirements of Law;
				
		6.	All information
    provided to Purchaser by Seller with respect to the Accounts to be Sold (including, but
    not limited to, information concerning the overall quality and aging of the Accounts to be
    Sold and information concerning rewards programs, Account terms, or other product features
    or benefits) was true and correct on the date furnished, and Seller has no updated
    information which would make any previously provided information materially misleading or
    incorrect or which would make the Accounts to be Sold materially less valuable than they
    would appear to be on Seller’s records; and
				
		7.	No Account to be Sold
    contains one or more Account terms that cannot be changed by Purchaser or otherwise limits
    Purchaser’s ability to change the terms of the Account in the manner and timing
    established by Purchaser related to such Accounts, or is subject to an agreement with a
    third party, including, without limitation, a third party providing Account Benefits, that
    would in any way limit Purchaser’s ability to change the terms of the Account in the
    manner and timing established by Purchaser.
				
	C.	Survival;
    Obligations of Seller. The representations and warranties contained in this
    Article VI. shall survive any termination of this Agreement and the transfer of the
    Accounts to be Sold. If any of the representations or warranties prove to be inaccurate
    with respect to any Account to be Sold, Purchaser may, at Purchaser’s option, require
    Seller to purchase such Account to be Sold. If so required, Seller shall repay to
    Purchaser the principal balance as of the repurchase date, which means the net amount,
    including interest, fees, and any other charges owing by a Cardholder to Purchaser on the
    Cardholder’s Account, of any credit balance in favor of the Cardholder, and less
    disputed items as recorded in the periodic statement of such Account most recently
    rendered prior to the repurchase date, plus all debits and less any credit properly posted
    to such Account pursuant to the terms of the Cardholder Agreement on or before the
    repurchase date, and, at Purchaser’s discretion, in addition to the principal
    balance, the Premium for such principal balance, minus the revenue Purchaser collected on
    any Account to be Sold, plus Purchaser’s expenses. The terms of Section II.C.3 of
    this Agreement shall apply to the repurchase of Accounts. Seller’s obligation to
    repurchase Accounts shall continue for one year after Purchaser obtains knowledge of such
    inaccuracy. Except with respect to any Account that Seller has repurchased and satisfied
    all of its obligations with respect to such repurchase, Seller shall be liable to
    Purchaser for any loss, claim, damage or expense arising or incurred as a result of any
    such inaccuracy and, without limiting the foregoing, Purchaser may recover from Seller the
    amount by which the net present value of the contribution (revenues less expenses)
    ("Contribution") from the Accounts to be Sold that Purchaser reasonably
    estimated that it would realize from the Accounts to be Sold relying on the accuracy of
    the information provided to Purchaser exceeds the net present value of the Contribution
    from the Accounts to be Sold for the same period for which Purchaser estimated such
    expected Contribution as reasonably estimated by Purchaser after taking into account the
    effect of the inaccuracy of the information provided. For purposes of illustration only,
    if Seller has provided or provides inaccurate information with respect to the annual
    percentage rate applicable to any Accounts to be Sold, Purchaser shall be entitled to
    recover from Seller the net present value of the amount by which the Contribution from the
    Accounts to be Sold the Purchaser reasonably estimated that it would realize based on the
    applicable annual percentage rate represented to Purchaser by Seller exceeds the net
    present value of Contribution from the Accounts to be Sold for the same period for which
    Purchaser estimated such expected Contribution as reasonably estimated by Purchaser after
    taking into account the actual annual percentage rate.




 


VII.  TERMINATION


	Except as provided in Section VIII.A.
    and Section XI.B., this Agreement shall terminate and shall be of no further force or
    effect upon the earliest of: (1) upon mutual agreement of the parties; (2) upon
    notice given by either party to the other party in the event Requirements of Law prohibit
    the sale transaction contemplated by this Agreement; or (3) if by the date that is
    one hundred (100) days after the Effective Date of this Agreement the Closing has not
    occurred and, thereafter, either party provides written notice to the other party of
    conditions precedent to the notifying party’s performance hereunder that have not
    been satisfied and that the notifying party is terminating this Agreement. Purchaser also
    may terminate this Agreement and require Seller to repurchase from it all Assets to be
    Sold if forty-five (45) days after the Closing Date Seller shall have failed to provide to
    Purchaser all information required by Purchaser under this Agreement to determine the
    Preliminary Purchase Price, or if after the Closing Date and prior to payment of the
    Preliminary Purchase Price by Purchaser, Seller shall have breached any covenant to be
    performed by it under this Agreement. On the fifth (5th) Business Day after
    Purchaser sends notice to Seller of termination of this Agreement pursuant to the
    preceding sentence, this Agreement shall terminate and all right, title and interest in
    and to the Assets to be Sold (other than Purchaser’s right to receive payments from
    Cardholders or National Associations on account of Cardholders’ obligations or
    interchange fees related to or arising out of Accounts to be Sold in each case, after the
    Cut-Off Time and prior to the repurchase of the Accounts to be Sold) shall revert to
    Seller and Seller shall assume all obligations with respect to the Assets to be Sold. The
    provisions of Section II.C. shall apply with respect to the Accounts to be Sold that are
    repurchased by Seller (other than payment provisions if no payment was made by Purchaser
    for the Accounts to be Sold). Purchaser will execute and deliver to Seller any documents
    reasonably necessary to reassign and transfer any other Assets to be Sold to Seller.
    Notwithstanding termination of this Agreement under this Article VII, each party shall
    retain all rights and remedies against the other party provided by law for any material
    breach of this Agreement.




 



VIII.
  DAMAGES AND INJUNCTIVE RELIEF



	A.	Delay; Liquidated
    Damages. Should either party fail to perform its obligations pursuant to
    Section II.B.3. or otherwise delay in the performance of its obligations, whether the
    failure to perform or delay is caused by the party itself who fails to perform or a third
    party, which delay has not been excused by the other party as an Excusable Delay (as
    defined in Section XI.G), the party who fails to perform timely shall pay to the other
    liquidated damages in the amount of .0125% of the Principal Balance (as of the Closing
    Date) to be purchased, per day for each day that such non-performing party under
    Section II.B.3. has failed to perform; provided, that upon termination of this
    Agreement, such damages determined under this Section VIII.A. shall cease to accrue
    and the performing party shall be entitled to recover such damages from the non-performing
    party as the performing party may have suffered in addition to the damages specified in
    this Section VIII.A. The payment of any of the foregoing amounts shall not be deemed
    to constitute a forfeiture or a penalty. 
				
	B.	Default; Damages.
    In the event that either party breaches any of its obligations under this Agreement, in
    addition to any other remedies provided pursuant to this Agreement or applicable
    Requirements of Law, the non-breaching party shall be entitled to recover from the
    breaching party the actual damages which the non-breaching party may incur on account of
    such breach. Except as otherwise provided in this Agreement, neither party shall be liable
    to the other party for damages for lost profits, exemplary, punitive, special, incidental,
    indirect and consequential damages suffered by the other party, including indemnified
    parties pursuant to Article IX (except any such damages payable by an indemnified
    party to Persons not related to the parties hereto or liquidated damages payable under
    this Agreement that may include any of the foregoing) ("Excluded Damages").
				
	C.	Injunctive Relief.
    It is understood and agreed that money damages would not be a sufficient remedy for any
    breach of Article V. of this Agreement by any party or by any other Person or entity
    receiving Confidential Information pursuant to Article V. and that the party whose
    Confidential Information is disclosed or used in violation of this Agreement shall be
    entitled to claim injunctive or equitable relief as a remedy for any such breach. Such
    remedy shall not be deemed to be the exclusive remedy for breach of this Agreement, but
    shall be in addition to all other remedies available to such party at law or equity. 




 



IX.  INDEMNIFICATION


	A.	Indemnification of
    Purchaser by Seller. Seller agrees to indemnify and hold Purchaser, its affiliates and
    its officers, directors, employees and permitted assigns harmless of and from any and
    every claim, demand, proceeding and suit, and from every liability, loss, damage, cost,
    charge and expense (including, without limitation, any actions or expenditures required by
    Requirements of Law, operating regulations of National Associations or card agreements to
    correct deficiencies related to the Accounts to be Sold) or any other liability of every
    nature, kind and description whatsoever, whether or not material, liquidated, contingent
    or prospective in nature, exclusive of Excluded Damages, by reason of or resulting from or
    arising out of any of:
				
		1.	The ownership or
    administration of the Assets to be Sold by the Seller prior to the Closing Date (whether
    known or unknown, contingent or matured); 
				
		2.	Seller’s
    performance of its obligations under this Agreement affecting or alleged to affect Persons
    not related to the parties hereto;
				
		3.	Any misrepresentation
    or breach of any representation, warranty or covenant of Seller contained herein or in any
    document or instrument delivered by Seller hereunder;
				
		4.	The termination of
    any agreements or relationships related to the Assets to be Sold;
				
		5.	Any fraudulent or
    dishonest act by Seller, its affiliates, agents or representatives related to this
    Agreement; or
				
		6.	Seller’s failure
    to comply with applicable Requirements of Law relevant to this Agreement.
				
			Seller shall be
    liable for reasonable attorneys’ fees and expenses incurred by Purchaser, but only if
    the same are incurred in connection with claims, demands, proceedings or suits asserted by
    Persons not related to the parties hereto.
				
	B.	Indemnification of
    Seller by Purchaser. Purchaser agrees to indemnify and hold Seller, its affiliates and
    its officers, directors, employees and permitted assigns harmless of and from any and
    every claim, demand, proceeding and suit, and from every liability, loss, damage, cost,
    charge and expense (including, without limitation, any actions or expenditures required by
    Requirements of Law, operating regulations of National Associations or card agreements to
    correct deficiencies related to the Accounts to be Sold (but in no event with respect to
    credit losses related to the Accounts to be Sold unless otherwise provided in this
    Agreement)) or any other liability of every nature, kind and description whatsoever
    whether or not material, liquidated, contingent or prospective in nature, exclusive of
    Excluded Damages, by reason of or resulting from or arising out of:
			
		1.	The ownership or
    administration of the Assets to be Sold by the Purchaser subsequent to the Closing Date
    (whether known or unknown, contingent or matured);
			
		2.	Purchaser’s
    performance of its obligations under this Agreement affecting or alleged to affect Persons
    not related to the parties hereto;
			
		3.	Any misrepresentation
    or breach of any representation, warranty or covenant of Purchaser contained herein or in
    any document or instrument delivered by Purchaser hereunder; 
			
		4.	Any fraudulent or
    dishonest act by Purchaser, its affiliates, agents or representations related to this
    Agreement; and
			
		5.	Purchaser’s
    failure to comply with applicable Requirements of Law relevant to this Agreement.
			
		Purchaser
    shall be liable for reasonable attorneys’ fees and expenses incurred by Seller, but
    only if the same are incurred in connection with claims, demands, proceedings or suits
    asserted by Persons not related to the parties hereto.

			
	C.	Indemnification
    Procedures. The Indemnified Party will notify the Indemnifying Party in a reasonably
    prompt manner of any claim that is asserted and each action or suit that is filed or
    served (any of the foregoing being a "Claim") for which the Indemnified Party is
    seeking indemnification pursuant to this Section IX.C. The Indemnifying Party may
    thereafter assume control of such Claim, provided, that the Indemnified Party will have
    the right to participate in the defense or settlement of such Claim. Neither the
    Indemnifying Party nor the Indemnified Party may settle such Claim or consent to any
    judgment with respect thereto without the consent of the other party hereto (which consent
    may not be unreasonably withheld or delayed). The Indemnified Party will provide the
    Indemnifying Party with a reasonable amount of assistance in connection with defending or
    settling any such Claim.



 


X.  CONDITIONS PRECEDENT


	A.	Conditions
    Precedent to Purchaser’s Obligations. The obligation of Purchaser to close under
    this Agreement is subject to the fulfillment of each of the following conditions unless
    waived in writing by Purchaser:
			
		1.	The representations and
    warranties made by Seller herein shall be true and correct in all material respects as of
    the Closing Date, as though such representations and warranties were restated and made at
    and as of the Closing Date;
			
		2.	All the necessary consents,
    regulatory and other approvals, licenses and other authorizations which are material to
    the transactions contemplated hereby shall have been obtained permitting the post-Closing
    ownership and operation by Purchaser of the Accounts on terms substantially comparable to
    those existing at the present and all applicable waiting periods (and extensions thereof),
    if any, under the Hart-Scott-Rodino Act shall have expired or otherwise been terminated
    and Seller and Purchaser shall have received all other permits or consents of governmental
    authorities necessary. No such permit or consent shall contain any condition, limitation
    or requirement that, individually or in the aggregate, would, in Purchaser’s
    reasonable good faith judgment, materially reduce the benefits of the transaction
    contemplated by this Agreement to Purchaser;
			
		3.	As of the Closing Date, there
    shall not have been any material adverse change in the Assets to be Sold since completion
    of due diligence by Purchaser;
			
		4.	Seller shall have delivered to
    Purchaser such documents, certificates and agreements reasonably requested by Purchaser;
			
		5.	Seller and Purchaser shall have
    entered into the "Elan Financial Services Joint Marketing Agreement" (the
    "Joint Marketing Agreement");
			
		6.	No claim, action, suit,
    proceeding or governmental investigation shall have been threatened or instituted
    challenging the validity of this Agreement or the series of transactions contemplated
    hereby which could reasonably be expected to have a material adverse effect on the
    transactions contemplated hereby and no order of any court shall have been entered which
    reasonably could be expected to have a material adverse effect on the transactions
    contemplated hereby;
			
		7.	All pre-Closing covenants,
    obligations and other matters to be performed on the part of Seller shall have been
    fulfilled in all material respects;
			
		8.	If required by Purchaser, Seller
    and Purchaser shall have entered into the Interim Servicing Agreement; 
			
		9.	The acquisition of the Assets to
    be Sold shall not violate any applicable statute, rule or regulation in effect on the
    Closing Date;
			
		10.	Seller shall have paid to
    Purchaser any amount due by Seller pursuant to Section VIII.A.
			
	B.	Conditions
    Precedent to Seller’s Obligations. The obligation of Seller to close under this
    Agreement is subject to the fulfillment of each of the following conditions unless waived
    in writing by Seller:
			
		1.	The representations and
    warranties made by Purchaser herein shall be true and correct in all material respects as
    of the Closing Date, as though such representations and warranties were restated and made
    at and as of the Closing Date;
			
		2.	Seller and Purchaser shall have
    entered into the Joint Marketing Agreement;
			
		3.	No claim, action, suit proceeding
    or governmental investigation shall have been threatened or instituted challenging the
    validity of this Agreement or the series of transactions contemplated hereby which could
    reasonably be expected to have a material adverse effect on the transactions contemplated
    hereby and no order of any court shall have been entered which reasonably could be
    expected to have a material adverse effect on the transactions contemplated hereby;
			
		4.	All applicable waiting periods
    (and extensions thereof), if any, with respect to any application filed with the OCC or
    under the Hart-Scott-Rodino Act shall have expired or otherwise been terminated and Seller
    and Purchaser shall have received all other necessary permits or consents;
			
		5.	All pre-Closing covenants,
    obligations and other matters to be performed on the part of Purchaser shall have been
    fulfilled; and
			
		6.	The sale of the Assets to be Sold
    shall not violate any applicable statute, rule or regulation in effect on the Closing
    Date.
			
	C.	Closing. The
    Closing shall be deemed to have occurred on the Closing Date specified in the second
    Recital of this Agreement, unless one of the parties notifies the other in writing prior
    thereto that in its reasonable determination not all of the conditions precedent to its
    obligation to close under this Agreement have been satisfied; provided, that if such
    determination is not accurate, the Closing Date shall be deemed to have occurred as
    specified in the second Recital of this Agreement if so elected by the other party.




 



XI.  ADDITIONAL
CONTRACT PROVISIONS


	A.	Successors and
    Assigns. This Agreement benefits and binds the parties hereto and their respective
    successors and assigns. Neither party may assign or transfer its rights or obligations
    under this Agreement without the other party’s prior written permission, which
    permission shall not be unreasonably withheld, except that Purchaser may make such an
    assignment or delegation to an affiliate of Purchaser that has the ability to fulfill the
    obligations of Purchaser hereunder without Seller’s written consent, provided that
    such assignment shall not relieve the assignor of its obligations under this Agreement. 
				
	B.	Survival of
    Obligations, Rights and Remedies. In addition to the survival of specific clauses as
    set forth in the terms of this Agreement, the obligations and remedies of the parties as
    specified in the provisions described below shall survive termination of this Agreement as
    follows: 
				
		1.	in the case of
    termination of this Agreement by reason of the Conversion Date having occurred, the
    obligations and remedies of the parties set forth in Sections II.B., II.C., II.F., II.G.,
    II.I., II.J., II.K., II.L., III.B., III.C.2., and III.C.3., and Articles V, VI, VII, VIII,
    IX and XI of this Agreement;
				
		2.	in the case of
    termination of this Agreement after Closing and prior to Conversion having occurred, the
    obligations and remedies of the parties set forth in Sections II.I.5., II.J, II.K., XI.C.,
    XI.H., and XI.J., and Articles V., VI., VII., VIII. and IX of this Agreement; and
				
		3.	in the case of
    termination of this Agreement prior to Closing, the obligations and remedies of the
    parties set forth in Section XI.C., XI.H., and XI.J., and Articles V., VI., VII., VIII.
    and IX. of this Agreement.
				
		All rights and
    obligations of either party which may have arisen or accrued prior to termination shall
    survive termination of the Agreement.
				
	C.	Notices. All
    communications or notices required or permitted under this Agreement shall be deemed to
    have been given on the date when (i) delivered in person or by a nationally
    recognized overnight delivery service, (ii) sent via telecopy transmission to the
    telecopy number specified below with a hard copy sent via first class mail the following
    day, or (iii) deposited in the United States mail, postage prepaid, and addressed as
    follows: 
				
		1.	if to Purchaser: 	Elan Financial Services

    777 East Wisconsin Avenue - 6th floor

    Milwaukee, Wisconsin 53202

    Attention: Credit Card Portfolio Acquisition Manager 

    Telecopy No. 414-765-6134
				
			with a copy to:	Elan Financial Services

    800 Nicollet Mall, BC-MN-H21N

    Minneapolis, Minnesota 55402

    Attention: Corporate Counsel, Retail Payment Solutions

    Telecopy No. 612-303-7888
					
		2.	if to Seller:	Bar Harbor Bank & Trust

    82 Main Street 

    Bar Harbor, ME 04609

    Attention: _____________________________

    Telecopy No. 207-667-3645
					
		Each
    party may change its address or telecopy number for communications and notices hereunder
    by written notice to the other party hereto.

		
	D.	Severability.
    The invalidity or unenforceability of any term or provision of this Agreement shall not
    affect the validity or enforceability of any other provision of this Agreement.
		
	E.	Waivers and
    Amendments. No delay, omission, or neglect with respect to the exercise of any right
    under this Agreement shall constitute a waiver of such right. No waiver or amendment of
    this Agreement shall be valid unless agreed upon in writing by both parties.
		
	F.	Entire Agreement,
    Section Headings and Counterparts. This Agreement constitutes the entire agreement
    between the parties with respect to matters covered by this Agreement, and supersedes any
    contract, agreement, or oral understanding with respect to such matters which may have
    been in existence between the parties prior to the date of this Agreement. All section
    headings herein are included for convenience only and are not to be construed as a part of
    this Agreement or in any way limiting or amplifying its terms. This Agreement may be
    signed in any number of counterparts, each of which shall be deemed an original.
		
	G.	Excusable Delays
    and Force Majeure. Any delay hereunder shall be excused to the extent approved in
    writing by the parties. Any delay in the performance by either party hereto of its
    obligations hereunder shall be excused when such delay in performance is due to any cause
    or event of any nature whatsoever beyond the reasonable control of such party, including
    without limitation any act of God; any fire, flood or weather condition; any earthquake;
    any epidemic or pandemic; act of a public enemy, war, insurrection, riot, explosion,
    terrorist attack or strike; provided, however, that written notice thereof must be given
    by such party to the other party within thirty (30) days after the occurrence of such
    cause or event.
		
	H.	Governing Law.
    This Agreement shall be governed by and construed in accordance with the substantive laws
    of the State of Delaware, without regard to conflict of law issues. Any action brought to
    enforce any rights under this Agreement by Seller shall be brought in federal or state
    court in Minneapolis, Minnesota. Any action brought to enforce any rights under this
    Agreement by Purchaser shall be brought in federal or state court in Hancock, Maine.
		
	I.	Relationship of
    Parties. Nothing herein contained shall be deemed or construed to create a partnership
    or joint venture between the parties. The duties and responsibilities of the Seller shall
    be rendered by the Seller as an independent contractor and not as an agent of Purchaser.
    The Seller shall have full control of all of its acts, doings, proceeding, relating to or
    requisite in connection with the discharge of its duties and responsibilities under this
    Agreement.
		
	J.	WAIVER OF JURY
    TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY LAW,
    ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
    RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
		
	K.	Attached Exhibits
    and Schedules. Each Exhibit and each Schedule referred to in this Agreement is
    expressly incorporated in its entirety and made a part of this Agreement.



            IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first
above written.



	U.S.
    BANK NATIONAL ASSOCIATION ND,

    D/B/A ELAN FINANCIAL SERVICES

    By: ________________________________________

    Title: _______________________________________
	BAR
    HARBOR BANK & TRUST

    

    By: ___________________________________

    Title: _________________________________