Exhibit 4.8
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SPIEGEL CREDIT CORPORATION III,
Seller,
FIRST CONSUMERS NATIONAL BANK,
Servicer,
and
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
Trustee
on behalf of the Series 1995-A Certificateholders
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SERIES 1995-A SUPPLEMENT
Dated as of March 16, 1995
to
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated as of December 13, 1994
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$350,000,000
SPIEGEL MASTER TRUST
Series 1995-A
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TABLE OF CONTENTS
Page
SECTION 1. Designation........................................................................... 1
SECTION 2. Definitions........................................................................... 1
SECTION 3. Reassignment and Transfer Terms....................................................... 11
SECTION 4. Delivery and Payment for the Series 1995-A Certificates............................... 11
SECTION 5. Form of Delivery of Series 1995-A Certificates........................................ 11
SECTION 6. Article IV of Agreement............................................................... 12
SECTION 7. Article V of the Agreement............................................................ 23
SECTION 8. Series Pay Out Events................................................................. 26
SECTION 9. Article I of Agreement................................................................ 28
SECTION 10. Article VI of Agreement............................................................... 29
SECTION 11. Exhibits to Agreement................................................................. 36
SECTION 12. Terms Change Condition................................................................ 36
SECTION 13. Permitted Successor Servicer.......................................................... 37
SECTION 14. Successors and Assigns................................................................ 37
SECTION 15. Final Distribution.................................................................... 37
SECTION 16. Constituent Class C Certificates...................................................... 37
SECTION 17. Amendments............................................................................ 38
SECTION 18. Effectiveness......................................................................... 38
SECTION 19. Ratification of Agreement............................................................. 39
SECTION 20. Counterparts.......................................................................... 39
SECTION 21. Governing Law......................................................................... 39
EXHIBITS
Exhibit A Form of Class A Certificate
Exhibit B Form of Class B Certificate
Exhibit C Form of Class C Certificate
Exhibit D Form of Monthly Payment Instructions and Notification to Trustee
Exhibit E Form of Monthly Certificateholders' Statement
Exhibit F-1 Exhibit I-1 to Amended and Restated Pooling and Servicing Agreement
Exhibit F-2 Exhibit I-2 to Amended and Restated Pooling and Servicing Agreement
Exhibit G-1 Exhibit J-1 to Amended and Restated Pooling and Servicing Agreement
Exhibit G-2 Exhibit J-2 to Amended and Restated Pooling and Servicing Agreement
Exhibit G-3 Exhibit J-3 to Amended and Restated Pooling and Servicing Agreement
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SERIES 1995-A SUPPLEMENT AND AMENDMENT NO. 1, dated as of March 16,
1995 (this "Series Supplement"), among Spiegel Credit Corporation III, a
Delaware corporation, as Seller, First Consumers National Bank, a national
banking association, as Servicer, and ▇▇▇▇▇▇ Trust and Savings Bank, as Trustee
under the Amended and Restated Pooling and Servicing Agreement dated as of
December 13, 1994 among Seller, the Servicer and the Trustee (the "Agreement").
Section 13.1 of the Agreement provides that the Agreement may be
amended from time to time by the Servicer, the Seller and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein which may be inconsistent with any other
provisions therein, or to add any other provisions with respect to matters or
questions arising under the Agreement which shall not be inconsistent with the
provisions of the Agreement, provided, that such action shall not, as evidenced
by an Opinion of Counsel reasonably acceptable to the Rating Agencies, adversely
affect in any material respect the interests of the Certificateholders.
Section 6.12 of the Agreement provides, among other things, that
Seller and the Trustee may at any time and from time to time enter into a
supplement to the Agreement for the purpose of authorizing the delivery by
Seller to the Trustee for execution and authentication of one or more Series of
Certificates.
Pursuant to this Series Supplement, Seller shall create a new Series
of Investor Certificates and shall specify the Principal Terms thereof and add
and amend certain provisions of the Agreement.
SECTION 1. Designation. There is hereby created a Series of
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Investor Certificates to be issued pursuant to the Agreement and this Series
Supplement to be known as the "Series 1995-A Certificates". The Series 1995-A
Certificates shall be issued in three Classes, which shall respectively be known
as the "Series 1995-A Class A Certificates" (the "Class A Certificates"), the
"Series 1995-A Class B Certificates" (the "Class B Certificates") and the
"Series 1995-A Class C Certificates" (the "Class C Certificates").
SECTION 2. Definitions.
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In the event that any term or provision contained herein shall
conflict with or be inconsistent with any provision contained in the Agreement,
the terms and provisions of this Series Supplement shall govern. All Article,
Section or subsection references herein shall mean Article, Section or
subsections of the Agreement, as amended or supplemented by this Series
Supplement, except as otherwise provided herein. All capitalized terms not
otherwise defined herein are used herein as defined in the Agreement. Each
capitalized term defined herein shall relate only to the Series 1995-A
Certificates and no other Series of Certificates issued by the Trust.
"Accrual Period" shall mean the period from and including a Distribution
Date (or in the case of the initial Accrual Period, the Closing Date) to but
excluding the succeeding Distribution Date.
"Additional Accounts Enhancement Increase Condition" shall mean the
condition that, after giving effect to the inclusion of any Additional Accounts
in the Trust to which subsection 2.6(f)(ii) is applicable and with respect to
which the Rating Agency Condition has not been satisfied, the Required Class C
Percentage shall equal or exceed the applicable amount specified in the
definition of Enhancement Increase Amount. Such condition shall be deemed to be
continuing until the Rating Agency Condition has been satisfied subsequent to
and taking into consideration the addition of Additional Accounts that gave rise
to such condition.
"Aggregate Class C Increase Amount" shall mean the cumulative amount of
Class C Increase Amounts.
"Amortization Period" shall mean the period following the Revolving Period
which shall be either the Controlled Amortization Period or the Rapid
Amortization Period.
"Base Class C Percentage" shall mean, with respect to any date of
determination, 26%; provided that the Seller may reduce such percentage from
time to time so long as (i) the Rating Agency Condition has been satisfied with
respect to such reduction and (ii) the Trustee and the Seller shall have
received an opinion of ▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇ or other outside tax counsel to
the effect that such reduction will not cause outstanding Class A Certificates
and Class B Certificates to be characterized as other than indebtedness for
federal income tax purposes.
"Base Rate" shall mean, with respect to any Monthly Period, (i) the sum of
(a) the amount of interest accrued or to accrue on the Class A Certificates, the
Class B Certificates and (at any time after the Class C Certificates have been
assigned an interest rate pursuant to Section 16(a) of this Series Supplement)
the Class C Certificates for the Accrual Period ending in the month following
the end of such Monthly Period and (b) the amount of the Investor Monthly
Servicing Fee allocable to the Series 1995-A Certificates in respect of such
Monthly Period divided by (ii) the Investor Amount as of the last day of the
preceding Monthly Period times (iii) 12.
"Certificateholder" shall mean the holder of record of any Certificate.
"Certificate Interest" shall mean the Class A Certificate Interest and the
Class B Certificate Interest.
"Certificates" shall mean the Class A Certificates, the Class B
Certificates and the Class C Certificates.
"Class A Certificateholder" shall mean the holder of record of any Class A
Certificate.
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"Class A Certificate Interest" shall have the meaning specified in
subsection 4.6(a)(ii).
"Class A Certificate Rate" shall mean 7.50% per annum, calculated based
upon a year consisting of twelve 30 day months.
"Class A Deficiency Amount" shall have the meaning specified in subsection
4.6(a).
"Class A Expected Payment Date" shall mean the Distribution Date that
occurs in September, 2000.
"Class A Investor Amount" shall mean, on any date of determination, an
amount equal to (a) the Initial Class A Investor Amount, minus (b) the aggregate
amount of payments of Certificate Principal paid to the Class A
Certificateholders pursuant to Section 4.8 prior to such date of determination,
minus (c) the excess, if any, of the aggregate amount of Class A Investor Charge
Offs over Class A Investor Charge Offs reimbursed pursuant to subsection 4.6(e)
prior to such date of determination.
"Class A Investor Charge Off" shall have the meaning specified in Section
4.5.
"Class A Investor Percentage" shall mean, with respect to any date of
determination, the percentage equivalent of a fraction, the numerator of which
is the Class A Investor Amount determined as of the last day of the Monthly
Period immediately preceding such date of determination and the denominator of
which is the Investor Amount determined as of such last day.
"Class A Monthly Total Principal Allocation" shall have the meaning
specified in subsection 4.4(b)(ii).
"Class A Principal Allocation" shall have the meaning specified in
subsection 4.4(b)(ii).
"Class A Pool Factor" as of any Record Date, shall mean a number rounded to
seven decimals representing the ratio of the Class A Investor Amount as of such
Record Date (determined after taking into account any reduction in such Class A
Investor Amount which will occur on the following Distribution Date) to the
Initial Class A Investor Amount.
"Class B Certificateholder" shall mean the holder of record of any Class B
Certificate.
"Class B Certificate Interest" shall have the meaning specified in
subsection 4.6(b)(ii).
"Class B Certificate Rate" shall mean 7.75% per annum, calculated based
upon a year consisting of twelve 30 day months.
"Class B Deficiency Amount" shall have the meaning specified in subsection
4.6(b).
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"Class B Investor Amount" shall mean, on any date of determination, an
amount equal to (a) the Initial Class B Investor Amount, minus (b) the aggregate
amount of payments of Certificate Principal paid to the Class B
Certificateholders pursuant to Section 4.8 prior to such date of determination,
minus (c) the excess, if any, of the sum of the aggregate amount of Class B
Investor Charge Offs and Class B Reallocated Amounts over Class B Investor
Charge Offs and Class B Reallocated Amounts reimbursed pursuant to subsection
4.6(e) or Class B Reallocated Amounts allocated to the Class C Investor Amount
pursuant to Section 4.11 prior to such date of determination.
"Class B Investor Charge Off" shall have the meaning specified in Section
4.5.
"Class B Investor Percentage" shall mean, with respect to any date of
determination, the percentage equivalent of a fraction, the numerator of which
is the Class B Investor Amount determined as of the end of the preceding
Business Day and the denominator of which is the Investor Amount determined as
of the end of such Business Day.
"Class B Pool Factor" as of any Record Date, shall mean a number rounded to
seven decimals representing the ratio of the Class B Investor Amount as of such
Record Date (determined after taking into account any reduction in such Class B
Investor Amount which will occur on the following Distribution Date) to the
Initial Class B Investor Amount.
"Class B Principal Payment Commencement Date" shall mean the earlier of (a)
the first Distribution Date in an Amortization Period on which the Class A
Investor Amount equals or is reduced to zero or, if there are no Collections in
respect of Principal Receivables allocable to the Series 1995-A Certificates
remaining after payments have been made to the Class A Certificateholders on
such Distribution Date, the Distribution Date following the Distribution Date on
which the Class A Investor Amount is paid in full and (b) the Distribution Date
following a sale or repurchase of the Receivables as set forth in Section
2.4(e), 9.2, 10.2, 12.1 or 12.2 of the Agreement or Section 3 of this Series
Supplement.
"Class B Reallocated Amounts" shall have the meaning specified in Section
4.11.
"Class C Certificateholder" shall mean the holder of record of any Class C
Certificate.
"Class C Increase Amount" shall mean any increase in the Class C Investor
Amount as provided in Section 4.9.
"Class C Investor Amount" shall mean, on any date of determination, an
amount equal to (a) the sum of (i) the Initial Class C Investor Amount and (ii)
the Aggregate Class C Increase Amount, minus (b) the aggregate amount of
payments of Certificate Principal paid to the Class C Certificateholders
pursuant to Section 4.8 prior to such date of determination, minus (c) the
excess, if any, of the sum of the aggregate amount of Class C Investor Charge
Offs and Class C Reallocated Amounts over Class C Investor Charge Offs and Class
C Reallocated Amounts reimbursed pursuant to subsection 4.6(e) prior to such
date of determination.
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"Class C Investor Charge Off" shall have the meaning specified in Section
4.5.
"Class C Investor Percentage" shall mean, with respect to any date of
determination, the percentage equivalent of a fraction, the numerator of which
is the Class C Investor Amount determined as of the end of the preceding
Business Day and the denominator of which is the Investor Amount determined as
of the end of such Business Day.
"Class C Pool Factor" as of any Record Date, shall mean a number rounded to
seven decimals representing the ratio of the Class C Investor Amount as of such
Record Date (determined after taking into account any reduction in such Class C
Investor Amount which will occur on the following Distribution Date) to the
Initial Class C Investor Amount.
"Class C Reallocated Amounts" shall have the meaning specified in Section
4.11.
"Closing Date" shall mean March 16, 1995.
"Controlled Amortization Period" shall mean an Amortization Period
commencing on the day following the last day of the Revolving Period and
continuing (i) to, but not including, the commencement of the Rapid Amortization
Period or (ii) to, and including, the earlier of (a) the Trust Termination Date
or (b) the Series Termination Date.
"Controlled Distribution Amount" shall mean, for each Monthly Period which
commences during the Controlled Amortization Period, $24,083,334 plus the
Deficit Controlled Distribution Amount for the preceding Monthly Period.
"Deficit Controlled Distribution Amount" shall mean, for each Monthly
Period during the Controlled Amortization Period, the excess, if any, of the
Controlled Distribution Amount for such Monthly Period over the Class A Monthly
Total Principal Allocation for such period.
"Distribution Account" shall have the meaning specified in subsection
4.2A(b).
"Distribution Date" shall mean the fifteenth day of each month commencing
April 17, 1995 or, if such fifteenth day is not a Business Day, the next
succeeding Business Day.
"Enhancement Increase Amount" shall mean, with respect to any Additional
Accounts Enhancement Increase Condition:
if the Annual Quotient exceeds 1.20 but is less than or equal to 1.25, the
amount, if any, that when added to the Class C Investor Amount will cause
the Class C Investor Percentage (after giving effect to such increase) to
equal the sum of 2% and the Base Class C Percentage then in effect; if the
Annual Quotient is greater than 1.25, the amount, if any, that when added
to the Class C Investor Amount will cause the Class C Investor Percentage
(after giving effect to such increase) to equal the sum of 4% and the Base
Class C Percentage then in effect; and
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with respect to any Terms Change Enhancement Increase Condition:
if the resulting minimum payment is less than $15 but greater than or equal
to $12.50, the amount, if any, that when added to the Class C Investor
Amount will cause the Class C Investor Percentage (after giving effect to
such increase) to equal the sum of 1.5% and the Base Class C Investor
Percentage then in effect; if the resulting minimum payment is less than
$12.50, the amount, if any, that when added to the Class C Investor Amount
will cause the Class C Investor Percentage (after giving effect to such
increase) to equal the sum of 3% and the Base Class C Percentage then in
effect.
"Enhancement Increase Condition" shall mean either an Additional Accounts
Enhancement Increase Condition or a Terms Change Enhancement Increase Condition
to the extent then continuing in accordance with the terms thereof.
"Excess Spread" shall have the meaning specified in subsection 4.6(f ).
"Finance Charge Sub-subaccount" shall have the meaning specified in
subsection 4.2A(a).
"Initial Class A Investor Amount" shall mean $289,000,000.
"Initial Class B Investor Amount" shall mean $61,000,000.
"Initial Class C Investor Amount" shall mean $124,000,000.
"Initial Investor Amount" shall mean the sum of the Initial Class A
Investor Amount, the Initial Class B Investor Amount and the Initial Class C
Investor Amount.
"Investor Amount" shall mean, on any date of determination, the sum of the
Class A Investor Amount, the Class B Investor Amount and the Class C Investor
Amount on such date of determination.
"Investor Charge Off" shall mean a Class A Investor Charge Off, a Class B
Investor Charge Off or a Class C Investor Charge Off.
"Investor Default Amount" shall mean, for any Monthly Period, an amount
equal to the product of (a) the Default Amount with respect to such Monthly
Period and (b) the Investor Percentage on the first day of such Monthly Period.
"Investor Percentage" shall mean, on any date of determination:
(a) when used with respect to Principal Receivables during the
Revolving Period, the percentage equivalent of a fraction the numerator of which
shall be the Investor Amount on the preceding Business Day and the denominator
of which shall be the greater of
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(x) the Aggregate Principal Receivables at the end of such day and (y) the sum
of the numerators used to calculate the Investor Percentages with respect to
Principal Receivables on such day for all Series outstanding;
(b) when used with respect to Principal Receivables during the
Amortization Period, the percentage equivalent of a fraction the numerator of
which shall be the Investor Amount as of the end of the day on the last day of
the Revolving Period and the denominator of which shall be the greater of (x)
the Aggregate Principal Receivables at the end of the Business Day preceding
such date of determination and (y) the sum of the numerators used to calculate
the Investor Percentages for allocations with respect to Principal Receivables
for all outstanding Series on such date of determination, provided, however, (A)
that during the Controlled Amortization Period, the Investor Percentage of
Principal Receivables may be reset by and at the option of the Servicer (and any
such reset Investor Percentage will apply in any Rapid Amortization Period
following the Controlled Amortization Period) for each Monthly Period to a fixed
percentage equivalent of a fraction which shall not be greater than the fraction
described above and shall not be less than the greater of (i) a fraction, the
numerator of which is the Investor Amount, determined as of the close of
business on the last day of the preceding Monthly Period, and the denominator of
which is the greater of (a) the Aggregate Principal Receivables, determined as
of the end of the last day of the preceding Monthly Period and (b) the sum of
the numerators used to calculate the Investor Percentages for allocations with
respect to Principal Receivables for all outstanding Series on such date of
determination and (ii) a fraction that when multiplied by the amount of
Collections allocable to Principal Receivables for the preceding Monthly Period
will equal 110% of the Controlled Distribution Amount for the Monthly Period to
which such allocation fraction will be applicable, and (B) if Series 1995-A is
paired with a Paired Series and a Rapid Amortization Period commences for such
Paired Series, the Seller may, by written notice to the Trustee, the Servicer
and the Rating Agency, designate a different numerator for such fraction;
(c) when used with respect to Finance Charge Receivables during the
Revolving Period and the Controlled Amortization Period and with respect to
Receivables in Defaulted Accounts at any time, the percentage equivalent of a
fraction the numerator of which shall be the Investor Amount at the end of the
last day of the prior Monthly Period (or, in the case of the monthly Period in
which the Closing Date occurs, on the Closing Date) and the denominator of which
shall be the greater of (x) the Aggregate Principal Receivables as of the end of
the Business Day preceding such date of determination and (y) the Aggregate
Investor Amount at the end of such day; and
(d) when used with respect to Finance Charge Receivables during the
Rapid Amortization Period, the percentage equivalent of a fraction the numerator
of which shall be the Investor Amount as of the end of the day on the last day
of the Revolving Period and the denominator of which shall be the greater of (x)
the Aggregate Principal Receivables at the end of Business Day preceding such
date of determination and (y) the sum of the numerators used to calculate the
Investor Percentages for allocations with respect to Finance Charge Receivables
for all outstanding Series on such date of determination.
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"Minimum Seller Percentage" shall mean 0%.
"Monthly Period Finance Charge Sub-subaccount Allocation" shall have the
meaning specified in Section 4.6.
"Paired Series" shall mean any series of Investor Certificates that is
paired with Series 1995-A in the related Supplement.
"Pay Out Commencement Date" shall mean the date on which a Trust Pay Out
Event is deemed to occur pursuant to Section 9.1 of the Agreement or a Series
Pay Out Event is deemed to occur pursuant to Section 8 of this Series
Supplement.
"Pool Factor" with respect to each Class, as of any Record Date, shall mean
a number rounded to seven decimals representing the ratio of the Investor Amount
of such Class as of such Record Date (determined after taking into account any
reduction in such Investor Amount which will occur on the following Distribution
Date) to the Initial Investor Amount of such Class.
"Portfolio Yield" shall mean, with respect to any Monthly Period, the
annualized percentage equivalent of a fraction, the numerator of which is an
amount equal to the amount of Finance Charge Collections allocated to the Series
1995-A Certificates and deposited in the Finance Charge Sub-subaccount pursuant
to Section 4.4 for such Monthly Period, such sum to be calculated on a cash
basis after subtracting an amount equal to the sum of the Investor Default
Amount for such Monthly Period, and the denominator of which is the Investor
Amount as of the last day of the preceding Monthly Period.
"Principal Collections Sub-subaccount" shall have the meaning specified in
subsection 4.2A(a).
"Principal Shortfall" shall mean, with respect to the Series 1995-A
Certificates, on any Date of Processing during a Monthly Period, the excess of
the applicable Controlled Distribution Amount over the Class A Principal
Allocation for such Date of Processing and for each prior Date of Processing
during such Monthly Period.
"Rapid Amortization Period" shall mean an Amortization Period commencing on
the Pay Out Commencement Date or on the first day of the Monthly Period during
which the Servicer expects the Class B Principal Payment Commencement Date to
occur or on the first day of the Monthly Period in which the Class A Expected
Payment Date occurs and ending on the earlier to occur of (i) the Trust
Termination Date or (ii) the Series Termination Date.
"Rating Agencies" shall mean, collectively, each nationally recognized
statistical rating agency which, at the request of Seller or the Servicer, has
assigned a rating to one or more classes of Certificates; provided that, solely
for the purpose of satisfying the Rating Agency Condition in subsection 2.8(a),
Moody's shall not be a Rating Agency.
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"Reallocated Principal Collections" shall have the meaning specified in
subsection 4.11(a).
"Record Date" shall mean, with respect to any Distribution Date, the close
of business on the last Business Day of the preceding month.
"Required Class C Percentage" shall mean, with respect to any date of
determination other than during the continuance of an Enhancement Increase
Condition, the Base Class C Percentage, and during the continuance of an
Enhancement Increase Condition, the highest then applicable percentage specified
in the definition of Enhancement Increase Amount.
"Revolving Period" shall mean the period from and including the Closing
Date to and including the earliest of the close of business on the last day of
the August, 1999 Monthly Period or the Pay Out Commencement Date or the close of
business on the last day of the Monthly Period preceding the Monthly Period in
which the Servicer expects the Class B Principal Payment Commencement Date to
occur.
"Scheduled Series 1995-A Termination Date" shall mean the Distribution Date
which occurs in September, 2004.
"Series Accounts" shall mean the Finance Charge Sub-subaccount, the
Principal Collections Sub-subaccount and the Distribution Account with respect
to Series 1995-A.
"Series 1995-A" shall mean the Series of the Spiegel Master Trust
represented by the Series 1995-A Certificates.
"Series Pay Out Event" shall have the meaning specified in Section 8 of
this Series Supplement.
"Series Servicing Fee Percentage" shall mean two percent per annum.
"Series Termination Date" shall mean the earlier to occur of (i) the day
after the Distribution Date on which the Series 1995-A Certificates are paid in
full, or (ii) the Scheduled Series 1995-A Termination Date.
"Shared Finance Charge Collections" shall mean the amounts allocated to the
Investor Certificates (which are not retained by the Seller) of other Series
which the applicable Supplements for such Series specify are to be treated as
"Shared Finance Charge Collections" and which may be applied to cover the Total
Deficiency Amount with respect to the Series 1995-A Certificates.
"Shared Principal Collections" shall mean, as the context requires, either
(a) the amounts allocated to the Series 1995-A Certificates which, in accordance
with subsection 4.4(b), are allocated to the Holder of the Exchangeable Seller
Certificate or which, in accordance with
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subsection 4.4(c), are to be applied in accordance with subsection 4.3(g) or (b)
the amounts allocated to the Investor Certificates (which are not retained by
the Seller) of other Series which the applicable Supplements for such Series
specify are to be treated as "Shared Principal Collections" and which may be
applied to cover Principal Shortfalls with respect to the Series 1995-A
Certificates.
"Terms Change Condition" shall have the meaning specified in Section 12 of
this Series Supplement.
"Terms Change Enhancement Increase Condition" shall mean the condition
that, after giving effect to any terms change that is restricted by Section 12
of this Series Supplement and with respect to which the Rating Agency Condition
has not been satisfied, the Class C Investor Percentage shall equal or exceed
the applicable amount specified in the definition of Enhancement Increase
Amount. Such condition shall be deemed to be continuing until the Rating Agency
Condition has been satisfied subsequent to and taking into consideration the
terms change that gave rise to such condition.
"Total Deficiency Amount" shall have the meaning specified in Section 4.6.
SECTION 3. Reassignment and Transfer Terms.
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The Series 1995-A Certificates shall be subject to repurchase by
Seller at its option, in accordance with the terms specified in subsection
12.2(a), on any Distribution Date on or after the Distribution Date on which the
sum of the Class A Investor Amount, the Class B Investor Amount and the amount
of the Class C Investor Amount held by Persons other than Spiegel or any of its
Affiliates is reduced to an amount less than or equal to 10% of the sum of the
Initial Class A Investor Amount, the Initial Class B Investor Amount and the
highest amount of the Class C Investor Amount held by Persons other than Spiegel
or any of its Affiliates since the Closing Date. The deposit required in
connection with any such repurchase shall be equal to (a) the Investor Amount,
plus (b) accrued and unpaid interest on the Series 1995-A Certificates through
and including the day preceding the day on which such repurchase occurs, less
(c) the amount on deposit in the Finance Charge Sub-subaccount which will be
transferred to the Distribution Account pursuant to subsections 4.6(a), (b), (d)
and (e) on the related Transfer Date, less (d) the amount on deposit in the
Principal Account which will be transferred to the Distribution Account pursuant
to the second paragraph of subsection 4.8(a) on the related Transfer Date.
SECTION 4. Delivery and Payment for the Series 1995-A Certificates.
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The Trustee shall deliver the Series 1995-A Certificates when
authenticated in accordance with Section 6.2.
SECTION 5. Form of Delivery of Series 1995-A Certificates.
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(a) The Class A Certificates and Class B Certificates shall be
delivered as Book-Entry Certificates as provided in Sections 6.1, 6.2, 6.9 and
6.11 of the Agreement. The Class C Certificates shall not be delivered as Book-
Entry Certificates. The Series 1995-A Certificates shall be delivered as
Registered Certificates as provided in Section 6.1 of the Agreement. The Class
A Certificates, the Class B Certificates, and the Class C Certificates shall be
substantially in the form of Exhibit A, Exhibit B and Exhibit C, respectively.
(b) The Clearing Agency for Class A Certificates and Class B
Certificates shall be The Depository Trust Company, and the Class A Certificates
and the Class B Certificates shall be initially registered in the name of CEDE &
Co., its nominee. The Class C Certificates shall be initially registered in the
names of such Persons as Seller shall advise the Trustee.
(c) For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of
Series 1995-A Certificates having Undivided Interests aggregating a specified
percentage, such direction or consent may be given, in the case of the Class A
Certificates and the Class B Certificates, by the relevant Certificate Owners
having interests in the requisite percentage of Series 1995-A Certificates,
acting through the Clearing Agency and the Clearing Agency Participants;
provided, however, that the Trustee shall only be obligated to follow such
directions or consents from the Clearing Agency.
SECTION 6. Article IV of Agreement. (a) Sections 4.1 and 4.2 and
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subsections 4.3(b) through (j) of the Agreement shall read in their entirety as
provided in the Agreement. Subsection 4.3(a) of the Agreement shall read in its
entirety as follows:
(a) Collections. The Servicer shall, subject to subsections 4.2(d),
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4.3(c) and 4.3(f) and, with respect to any Series, the provisions of the related
Supplement, deposit all Collections in the Collection Account as promptly as
possible after the Date of Processing of such Collections, but in no event later
than the second Business Day following such Date of Processing.
(b) The remainder of Article IV of the Agreement shall read in its
entirety as follows and shall be applicable only to the Series 1995-A
Certificates:
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.1A Rights of Investor Certificateholders. The Series
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1995-A Certificates shall represent Undivided Interests in the Trust, consisting
of the right to receive, to the extent necessary to make the required payments
with respect to such Series 1995-A Certificates at the times and in the amounts
specified in this Agreement, (a) the related Investor Percentage of Collections,
(b) funds on deposit in the Collection Account and the Excess
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Funding Account allocable to the Series 1995-A Certificates, (c) Shared
Principal Collections allocated to the Series 1995-A Certificates in accordance
with subsection 4.3(g) and (d) funds on deposit in the Finance Charge Sub-
subaccount, the Principal Collections Sub-subaccount and the Distribution
Account. The Exchangeable Seller Certificate shall represent the ownership
interest in the Trust Assets not allocated to the Series 1995-A Certificates or
any other Series outstanding; provided, however, the ownership interest
represented by the Exchangeable Seller Certificate and any other Series
outstanding shall not represent any interest in the Collection Account or any
other Series Account, except as specifically provided in this Article IV.
Section 4.2A The Series 1995-A Collection Sub-subaccount;
--------------------------------------------
Establishment of Distribution Account. (a) Pursuant to subsection 4.2(a), the
-------------------------------------
Servicer, on behalf of the Trustee, shall establish and maintain for
administrative purposes only, a Principal Collections Sub-subaccount as a
subaccount of the Principal Collections Subaccount and a Finance Charge Sub-
subaccount as a subaccount of the Finance Charge Subaccount, in each case for
the benefit of the Series 1995-A Certificateholders, bearing a designation
clearly indicating that the funds allocated thereto are held in trust for the
benefit of such Certificateholders. The Servicer on behalf of the Trustee at
all times shall maintain accurate records reflecting each transaction in such
sub-subaccounts. Pursuant to the authority granted to it pursuant to subsection
3.1(b), the Servicer shall have the power, revocable by the Trustee, to withdraw
funds, and to instruct the Trustee to withdraw funds, from such sub-subaccounts
for the purpose of carrying out its duties hereunder. All such instructions
from the Servicer to the Trustee shall be in writing; provided, however, that
the Servicer is entitled to give instructions to the Trustee by facsimile.
Funds allocated to such sub-subaccounts shall at all times be invested by the
Trustee, at the direction of the Servicer, in Permitted Investments. Any such
investment shall mature and such funds shall be available for withdrawal on the
Transfer Date following the Monthly Period in which such funds were processed
for collection; provided, however, that any Permitted Investment in short term
U.S. treasury securities may mature one day after such Transfer Date and may be
sold on such Transfer Date. Subject to the restrictions set forth above, the
Servicer, or a Person designated in writing by the Servicer, shall instruct the
applicable Qualified Institution in writing with respect to the investment of
funds allocated to such sub-subaccounts. For purposes of determining the
availability of funds or the balances in the Principal Collections Sub-
subaccount or the Finance Charge Sub-subaccount for any reason under this
Agreement, all investment earnings on such funds (net of losses and expenses)
shall be deemed not to be available or on deposit. Permitted Investments shall
not be disposed of prior to their maturity other than as provided above with
respect to short term U.S. treasury securities.
(b) The Servicer, for the benefit of the Series 1995-A
Certificateholders, shall cause to be established and maintained in the name of
the Trustee, on behalf of the Trust, with an office or branch of a Qualified
Institution a non-interest bearing segregated demand deposit account maintained
in the corporate trust department of such Qualified Institution, and held in
trust by such Qualified Institution (the "Distribution Account") bearing a
designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Series 1995-A Certificateholders. The Paying Agent
shall have the revocable authority to make withdrawals
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from the Distribution Account. Funds on deposit in the Distribution Account
shall not be invested.
Section 4.4 Allocations.
-----------
(a) Daily Allocations During the Revolving Period. During the
---------------------------------------------
Revolving Period, the Servicer shall, prior to the close of business on the day
any Collections are deposited in the Collection Account, allocate from the
applicable subaccount of the Collection Account the following amounts as set
forth below:
(i) Allocate to the Finance Charge Sub-subaccount an amount equal to
the product of (A) the Investor Percentage on the Date of Processing of
such Collections and (B) the aggregate amount of Finance Charge Collections
for such Date of Processing; provided, however, that, with respect to each
Monthly Period, such amount shall only be deposited in the Collection
Account and allocated to the Finance Charge Sub-subaccount until such time
as the amount retained in the Finance Charge Sub-subaccount equals the
aggregate amount of Certificate Interest payable on the next succeeding
Distribution Date plus, at any time that FCNB is not the Servicer, the
Investor Monthly Servicing Fee payable on the next succeeding Transfer Date
plus all accrued and unpaid Investor Monthly Servicing Fees in respect of
previous Monthly Periods.
(ii) Pay to the Holder of the Exchangeable Seller Certificate an
amount equal to the excess of (1) the product of (A) the Investor
Percentage on the Date of Processing of such Collections and (B) the
aggregate amount of such Collections processed in respect of Principal
Receivables on such Date of Processing over (2) the amount allocated to the
Principal Collections Sub-subaccount pursuant to subsection 4.9(b);
provided, however, that in the event that the amount to be paid to the
Holder of the Exchangeable Seller Certificate pursuant to this subsection
4.4(a)(ii) with respect to any Date of Processing would result in a
Shortfall Amount on such Date of Processing, after giving effect to the
inclusion in the Trust of all Receivables created on or prior to such Date
of Processing and the application of payments referred to in subsection
4.3(e) and any reallocation of the Seller Amount as provided in Section
4.9, the Shortfall Amount shall be deposited into the Excess Funding
Account.
(b) Daily Allocations During the Controlled Amortization Period.
-----------------------------------------------------------
During the Controlled Amortization Period, the Servicer shall, prior to the
close of business on each day any Collections are deposited in the Collection
Account, allocate to the Certificateholders or the Holder of the Exchangeable
Seller Certificate and pay or deposit from the applicable subaccount of the
Collection Account the following amounts as set forth below:
(i) Allocate to the Finance Charge Sub-subaccount an amount equal to
the product of (A) the Investor Percentage on the Date of Processing of
such Collections and (B) the aggregate amount of Finance Charge Collections
for such Date of Processing; provided, however, that, with respect to each
Monthly Period, such amount shall only be
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deposited in the Collection Account and allocated to the Finance Charge
Sub-subaccount until such time as the amount retained in the Finance
Charge Sub-subaccount equals the aggregate amount of Certificate Interest
payable on the next succeeding Distribution Date plus, at any time that
FCNB is not the Servicer, the Investor Monthly Servicing Fee payable on the
next succeeding Transfer Date plus all accrued and unpaid Investor Monthly
Servicing Fees in respect of previous Monthly Periods.
(ii) Allocate to the Principal Collections Sub-subaccount an amount
equal to the excess of (1) the product of (A) the Investor Percentage on
the Date of Processing of such Collections and (B) the aggregate amount of
such Collections processed in respect of Principal Receivables on such Date
of Processing over (2) the amount allocated to the Principal Collections
Sub-subaccount pursuant to subsection 4.9(b) (for any such Date of
Processing, a "Class A Principal Allocation"); provided, however, that if
the sum of such Class A Principal Allocation and all preceding Class A
Principal Allocations with respect to the same Monthly Period (the "Class A
Monthly Total Principal Allocation") exceeds the Controlled Distribution
Amount, then such excess shall not be treated as a Class A Principal
Allocation and shall be paid as provided in subsection 4.4(b)(iii).
(iii) Pay to the Holder of the Exchangeable Seller Certificate an
amount equal to the excess of (1) the product of (A) the Investor
Percentage on the Date of Processing of such Collections and (B) the
aggregate amount of such Collections processed in respect of Principal
Receivables on such Date of Processing over (2) the amount allocated to the
Principal Collections Sub-subaccount pursuant to subsection 4.4(b)(ii) or
4.9(b); provided, however, that in the event that the amount to be paid to
the Holder of the Exchangeable Seller Certificate pursuant to this
subsection 4.4(b)(iii) with respect to any Date of Processing would result
in a Shortfall Amount, the Shortfall Amount shall be deposited into the
Excess Funding Account.
(c) Allocations During the Rapid Amortization Period. During the
------------------------------------------------
Rapid Amortization Period, the Servicer shall, prior to the close of business on
each day any Collections are deposited in the Collection Account, allocate to
the Certificateholders or the Holder of the Exchangeable Seller Certificate and
pay or deposit from the applicable subaccount of the Collection Account the
following amounts as set forth below:
(i) Allocate to the Finance Charge Sub-subaccount an amount equal to
the product of (A) the Investor Percentage on the Date of Processing of
such Collections and (B) the aggregate amount of Finance Charge Collections
for such Date of Processing.
(ii) Allocate to the Principal Collections Sub-subaccount an amount
equal to the product of (A) the Investor Percentage on the Date of
Processing of such Collections and (B) the aggregate amount of such
Collections processed in respect of Principal Receivables on such Date of
Processing; provided, however, that after the date on which the Investor
Amount minus the amount on deposit in the Principal Collections Sub-
subaccount equals zero, the amount determined in accordance with this
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subparagraph (ii) shall be treated as Shared Principal Collections and
applied in accordance with subsection 4.3(g); provided, further, that if on
any Date of Processing after giving effect to the allocation set forth in
this subsection 4.4(c)(ii) for such Date of Processing in such Monthly
Period the amount credited to the Principal Collections Sub-subaccount is
less than the Investor Amount, then Shared Principal Collections from other
Series, if any, allocable to the Series 1995-A Certificates pursuant to
subsection 4.3(g) will be deposited in the Principal Collections Sub-
subaccount to the extent of such shortfall.
(d) Monthly Allocations During the Revolving Period and Controlled
--------------------------------------------------------------
Amortization Period. Prior to the commencement of the Rapid Amortization
-------------------
Period, on each Determination Date with respect to a Monthly Period, the
Servicer shall deposit in the Collection Account and allocate to the Finance
Charge Sub-subaccount an amount equal to the excess, if any, of the aggregate
amount of Collections allocated to the Finance Charge Sub-subaccount pursuant to
subsection 4.4(a)(i) or 4.4(b)(i) during such Monthly Period over the aggregate
amount of Collections that would have been allocated to the Finance Charge Sub-
subaccount pursuant to subsection 4.4(a)(i) or 4.4(b)(i), as the case may be,
but for the proviso thereto (the "Monthly Finance Charge Allocation"); provided,
however, that, so long as FCNB is the Servicer, FCNB, as Servicer, and as agent
for the Holder of the Exchangeable Seller Certificate, may make a net deposit to
the Collection Account on each Determination Date in an amount equal to the
Monthly Finance Charge Allocation minus all amounts payable or distributable to
FCNB, as Servicer, or the Holder of the Exchangeable Seller Certificate pursuant
to Section 4.6 on the next succeeding Transfer Date.
Section 4.5 Defaulted Accounts. On each Determination Date, the
------------------
Servicer shall calculate the Investor Default Amount for the preceding Monthly
Period and the Total Deficiency Amount for the related Distribution Date. If on
such date the Total Deficiency Amount exceeds zero (such deficiency, the
"Shortfall"), the Class C Investor Amount will be reduced by the lesser of (i)
the sum of (x) the Investor Default Amount and (y) the applicable Series Share
of the amount of any unpaid Deposit Obligation in respect of the preceding
Monthly Period and (ii) such Shortfall (together with any amount allocated to
the Class C Investor Amount in accordance with the last sentence of Section
4.11, a "Class C Investor Charge Off"). In the event that such reduction would
cause the Class C Investor Amount to be a negative number, the Class C Investor
Amount shall be zero, and the Class B Investor Amount will be reduced by an
amount equal to the excess of such reduction over the Class C Investor Amount
prior to the reduction (a "Class B Investor Charge Off"). In the event that
such reduction would cause the Class B Investor Amount to be a negative number,
the Class B Investor Amount shall be zero, and the Class A Investor Amount will
be reduced by an amount equal to the excess of such reduction over the sum of
the Class B Investor Amount and the Class C Investor Amount prior to such
reduction (a "Class A Investor Charge Off").
Section 4.6 Monthly Payments. On each Determination Date, the
----------------
Servicer, pursuant to a Monthly Payment Instructions and Notification
substantially in the form of Exhibit D to this Series Supplement, shall instruct
the Trustee to withdraw, and on the succeeding
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Transfer Date the Trustee acting in accordance with such instructions shall
withdraw, the amounts required to be withdrawn from the Finance Charge Sub-
subaccount pursuant to subsections 4.6(a), (b), (c), (d), (e) and (f) and the
amounts required to be withdrawn from the Principal Collection Sub-subaccount
pursuant to Section 4.11. On each Determination Date, the Servicer shall also
determine the amount (the "Total Deficiency Amount"), if any, by which the sum
of (a) Class A Certificate Interest and Class B Certificate Interest, calculated
as set forth below, for the following Transfer Date, plus (b) the Investor
Monthly Servicing Fee accrued in respect of the preceding Monthly Period plus
(c) the Investor Default Amount, if any, for the preceding Monthly Period, plus
(d) the applicable Series Share of any unpaid Deposit Obligation for the
preceding Monthly Period exceeds the aggregate of (i) amounts allocated to the
Finance Charge Sub-subaccount in respect of the preceding Monthly Period plus
any amount deposited in the Collection Account and allocated to the Finance
Charge Sub-subaccount pursuant to 4.4(d) on the immediately preceding
Determination Date, (ii) any amounts deposited or to be deposited in the Finance
Charge Sub-subaccount for the prior Monthly Period, with respect to the portion
of Ineligible Receivables constituting Finance Charge Receivables reassigned
pursuant to subsection 2.4(d), (iii) any amounts deposited or to be deposited in
the Finance Charge Sub-subaccount for the prior Monthly Period, with respect to
Investor Net Recoveries and (iv) any amounts allocable to the Series 1995-A
Certificates in respect of Shared Finance Charge Collections in respect of the
preceding Monthly Period (such sum, the "Monthly Period Finance Charge Sub-
subaccount Allocation").
(a) Class A Certificate Interest. On each Transfer Date, the
----------------------------
Trustee, acting in accordance with instructions from the Servicer, shall
withdraw from the Finance Charge Sub-subaccount and deposit to the Distribution
Account an amount equal to the Monthly Period Finance Charge Sub-subaccount
Allocation, to the extent necessary to pay interest on the Class A Certificates
as follows:
(i) in the case of the Transfer Date preceding the first Distribution
Date in an amount equal to the product of (I) one-twelfth of the Class A
Certificate Rate and (II) the Class A Investor Amount on the Closing Date
multiplied by a fraction the numerator of which is the number of days in
the related Accrual Period and the denominator of which is 30, and
(ii) in the case of subsequent Transfer Dates in an amount equal to
(1) the product of (I) one-twelfth of the Class A Certificate Rate and (II)
the Class A Investor Amount on the preceding Distribution Date (after
giving effect to any reduction therein that occurs on such preceding
Distribution Date) plus (2) an amount equal to the amount of any unpaid
Class A Deficiency Amounts, as defined below (the "Class A Certificate
Interest").
If the amounts described in this subsection 4.6(a) are insufficient to pay such
amounts in respect of any Monthly Period, payments to the Class A
Certificateholders will be reduced by the amount of such deficiency. The
amount, if any, of such deficiency for any month shall be referred to as the
"Class A Deficiency Amount". Interest shall accrue on Class A Deficiency
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Amount for each Accrual Period at one-twelfth of the Class A Certificate Rate
and such interest shall be included in the Class A Deficiency Amount. Amount for
each Accrual Period at one-twelfth of the Class A Certificate Rate and such
interest shall be included in the Class A Deficiency Amount.
(b) Class B Certificate Interest. On each Transfer Date, the Trustee,
----------------------------
acting in accordance with instructions from the Servicer, shall withdraw from
the Finance Charge Sub-subaccount and deposit to the Distribution Account an
amount equal to the Monthly Period Finance Charge Sub-subaccount Allocation less
any amounts withdrawn from the Finance Charge Sub-subaccount pursuant to
subsection 4.6(a), to the extent necessary to pay interest on the Class B
Certificates as follows:
(i) in the case of the Transfer Date preceding the first Distribution
Date in an amount equal to the product of (I) one-twelfth of the Class B
Certificate Rate and (II) the Class B Investor Amount on the Closing Date
multiplied by a fraction the numerator of which is the number of days in
the related Accrual Period and the denominator of which is 30, and
(ii) in the case of subsequent Transfer Dates in an amount equal to
(1) the product of (I) one-twelfth of the Class B Certificate Rate and (II)
the Class B Investor Amount on the preceding Distribution Date (after
giving effect to any reduction therein that occurs on such preceding
Distribution Date) plus (2) an amount equal to the amount of any unpaid
Class B Deficiency Amounts, as defined below (the "Class B Certificate
Interest").
If the amounts described in this subsection 4.6(b) are insufficient to pay such
amounts in respect of any Monthly Period, payments to the Class B
Certificateholders will be reduced by the amount of such deficiency. The
amount, if any, of such deficiency for any month shall be referred to as the
"Class B Deficiency Amount". Interest shall accrue on Class B Deficiency Amount
for each Accrual Period at one-twelfth of the Class B Certificate Rate and such
interest shall be included in the Class B Deficiency Amount.
(c) Servicing Fee. On each Transfer Date, the Trustee, acting in
-------------
accordance with instructions from the Servicer, shall withdraw from the Finance
Charge Sub-subaccount an amount equal to the lesser of (i) the Monthly Period
Finance Charge Sub-subaccount Allocation less any amounts withdrawn from the
Finance Charge Sub-subaccount pursuant to subsections 4.6(a) and (b), and (ii)
the Investor Monthly Servicing Fee accrued in respect of the preceding Monthly
Period plus all accrued and unpaid Investor Monthly Servicing Fees in respect of
previous Monthly Periods, and the Trustee shall pay such amount to the Servicer.
(d) Defaults. On each Transfer Date, the Trustee, acting in
--------
accordance with instructions from the Servicer, shall withdraw from the Finance
Charge Sub-subaccount an amount equal to the lesser of (i) the Monthly Period
Finance Charge Sub-subaccount Allocation less any amounts withdrawn from the
Finance Charge Sub-subaccount pursuant to subsections 4.6(a), (b) and (c) and
(ii) the Investor Default Amount, if any, for the preceding Monthly Period, and
the Trustee shall (A) during the Revolving Period, apply such amount in
accordance
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with subsection 4.4(a)(ii), (B) during the Controlled Amortization Period,
deposit such amount in accordance with subsection 4.4(b)(ii) or (iii) and (C)
during the Rapid Amortization Period, deposit such amount in accordance with
subsection 4.4(c)(ii), respectively, in each case as if such amounts were
Collections of Principal Receivables.
(e) Reimbursement of Investor Charge Offs, Class B Reallocated
----------------------------------------------------------
Amounts, and Class C Reallocated Amounts. On each Transfer Date, the Trustee,
----------------------------------------
acting in accordance with instructions of the Servicer, shall withdraw from the
Finance Charge Sub-subaccount an amount equal to the lesser of (i) the Monthly
Period Finance Charge Sub-subaccount Allocation less any amounts withdrawn from
the Finance Charge Sub-subaccount pursuant to subsections 4.6(a), (b), (c) and
(d) and (ii) an amount equal to the aggregate amount of Investor Charge Offs, if
any, Class B Reallocated Amounts, if any, and Class C Reallocated Amounts, if
any, which have not theretofore been reimbursed pursuant to this subsection
4.6(e), and shall (A) during the Controlled Amortization Period, deposit such
amounts in accordance with subsection 4.4(b)(ii) or (iii) and (B) during the
Rapid Amortization Period, deposit such amounts in accordance with subsection
4.4(c)(ii), respectively, in each case, as if such amounts were Collections of
Principal Receivables. On the date of any such reimbursement, the Investor
Amount shall be increased by the amount of such reimbursement of Investor Charge
Offs, Class B Reallocated Amounts and Class C Reallocated Amounts.
Reimbursements pursuant to this subsection 4.6(e) shall be applied
first to reimburse the Class A Certificates for Class A Investor Charge Offs,
-----
second, to the extent amounts are available following the reimbursement of the
------
Class A Certificates, to reimburse the Class B Certificates for Class B
Reallocated Amounts, third, to the extent amounts are available following the
-----
reimbursement of the Class B Certificates for Class B Reallocated Amounts, to
reimburse the Class B Certificates for Class B Investor Charge Offs, fourth, to
------
the extent amounts are available following the reimbursement of the Class B
Certificates for Class B Investor Charge Offs, to reimburse the Class C
Certificates for Class C Reallocated Amounts and fifth, to the extent amounts
-----
are available following the reimbursement of the Class C Certificates for Class
C Reallocated Amounts, to reimburse the Class C Certificates for Class C
Investor Charge Offs.
(f) Excess Spread. On each Transfer Date, the Trustee, acting in
-------------
accordance with instructions from the Servicer, shall withdraw from the Finance
Charge Sub-subaccount and deposit to the Distribution Account an amount equal to
excess, if any, of (i) the Monthly Period Finance Charge Sub-subaccount
Allocation over (ii) all amounts withdrawn from the Finance Charge Sub-
subaccount pursuant to subsections 4.6(a), (b), (c), (d) and (e) (such excess,
the "Excess Spread").
Section 4.7 Payment of Certificate Interest. On each Distribution
-------------------------------
Date, the Paying Agent shall pay in accordance with Section 5.1: (i) to the
Class A Certificateholders from the Distribution Account the amount deposited
into the Distribution Account pursuant to subsection 4.6(a) on the related
Transfer Date; (ii) to the Class B Certificateholders from the Distribution
Account the amount deposited into the Distribution Account pursuant to
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subsection 4.6(b) on the related Transfer Date; and (iii) to the Class C
Certificateholders from the Distribution Account the amount deposited into the
Distribution Account pursuant to subsection 4.6(f) on the related Transfer Date.
Section 4.8 Payment of Certificate Principal.
--------------------------------
(a) On the Determination Date in the calendar month following the
Monthly Period in which the Amortization Period commences, and on each
Determination Date thereafter, the Servicer shall instruct the Trustee to
withdraw, and on the next succeeding Transfer Date the Trustee shall, subject to
the following paragraph, withdraw, from the Principal Collections Sub-subaccount
and deposit in the Distribution Account (1) the amount deposited in the
Principal Collection Sub-subaccount pursuant to subsection 4.4(b)(ii) and
4.4(c)(ii) (and not reallocated pursuant to Section 4.11) during the preceding
Monthly Period, (2) any Shared Principal Collections from other Series allocated
to the Series 1995-A Certificates in accordance with subsection 4.3(g) and (3)
the amount to be deposited in the Principal Collection Sub-subaccount on such
Transfer Date pursuant to subsections 4.6(d) or 4.6(e) in each case after giving
effect to any reallocation of Collections pursuant to Section 4.11; provided,
however, that on each Transfer Date in the Amortization Period, the Servicer
shall withdraw, or instruct the Trustee to withdraw, and on such Transfer Date
the Trustee shall withdraw, from the Excess Funding Account and deposit to the
Distribution Account, an amount equal to the lowest of (x) the amount on deposit
therein (exclusive of investment earnings), (y) during the Controlled
Amortization Period, the amount by which the applicable Controlled Distribution
Amount exceeds the Class A Monthly Total Principal Allocation for the preceding
Monthly Period, and during the Rapid Amortization Period, the Investor Amount
(after giving effect to the application of the amounts already allocated to the
Distribution Account on such date) and (z) the amount of Shared Principal
Collections available to be withdrawn from the Excess Funding Account pursuant
to subsection 4.3(g).
On the Determination Date preceding the final Transfer Date, the
Servicer shall determine the amounts to be deposited pursuant to this sentence
and on the final Transfer Date: (x) the Servicer shall, or shall instruct the
Trustee to, and the Trustee shall, withdraw from the Principal Collection Sub-
subaccount and deposit into the Distribution Account, an amount which is no
greater than the Investor Amount as of the end of the day on the preceding
Record Date; and (y) the Servicer shall, or shall instruct the Trustee to, and
the Trustee shall, withdraw from the Principal Collection Sub-subaccount and
deposit into the Collection Account, for allocation as Principal Receivables
pursuant to Article IV, the amount, if any, remaining in the Principal
Collection Sub-subaccount after giving effect to the withdrawals made pursuant
to clause (x).
(b) On each Distribution Date occurring after a deposit is made
pursuant to subsection 4.8(a) or Section 3 of this Series Supplement, the Paying
Agent shall pay in accordance with Section 5.1, (i) to the Class A
Certificateholders from the Distribution Account the lesser of (a) the amount
deposited into the Distribution Account pursuant to subsection 4.8(a) or Section
3 of this Series Supplement on the related Transfer Date and (b) the Class A
Investor Amount on such date, (ii) to the Class B Certificateholders from the
Distribution Account the
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lesser of (r) the amount deposited into the Distribution Account pursuant to
subsection 4.8(a) or Section 3 of this Series Supplement on the related Transfer
Date less any amounts withdrawn from the Distribution Account pursuant to clause
(i) of this subsection 4.8(b) and (s) the Class B Investor Amount on such date
and (iii) to the Class C Certificateholders from the Distribution Account the
lesser of (y) the amount deposited into the Distribution Account pursuant to
subsection 4.8(a) or Section 3 of this Series Supplement on the related Transfer
Date less any amounts withdrawn from the Distribution Account pursuant to
clauses (i) and (ii) of this subsection 4.8(b) and (z) the Class C Investor
Amount on such date.
(c) On each Determination Date in respect of any Monthly Period in
respect of which amounts have been deposited in the Principal Collections Sub-
subaccount pursuant to subsection 4.9(b), the Servicer shall instruct the
Trustee to withdraw, and on the next succeeding Transfer Date the Trustee shall
withdraw, from the Principal Collections Sub-subaccount and deposit in the
Distribution Account the amount deposited in the Principal Collection Sub-
subaccount pursuant to subsection 4.9(b) during the preceding Monthly Period.
On each Distribution Date occurring after a deposit is made pursuant to this
subsection 4.8(c), the Paying Agent shall pay in accordance with Section 5.1, to
the Class C Certificateholders from the Distribution Account the amount
deposited into the Distribution Account pursuant to this subsection 4.8(c) on
the related Transfer Date.
Section 4.9 Increase and Decrease of Class C Investor Amount.
------------------------------------------------
(a) Whenever the Seller is required to satisfy an Enhancement
Increase Condition and the Class C Investor Percentage is less than the Required
Class C Percentage, the Seller shall increase the Class C Investor Amount by the
applicable Enhancement Increase Amount. Such increase shall be effected by
reducing the Seller Amount, if any, by the lesser of such Enhancement Increase
Amount and the amount, if any, by which the Seller Amount exceeds the Minimum
Seller Amount immediately prior to such increase and by reallocating such amount
to the Class C Investor Amount. If, after giving effect to the preceding
sentence, the Class C Investor Percentage is less than the Required Class C
Percentage the Seller shall immediately make a deposit in the Excess Funding
Account in immediately available funds in the amount of such deficiency.
Concurrently with the decrease in the Seller Amount and any required deposit to
the Excess Funding Account, the Class C Investor Amount shall be increased by
the aggregate amount of such decrease and of such deposit.
(b) Unless the Pay-Out Commencement Date shall have occurred, at any
time when the Class C Investor Percentage exceeds the Required Class C
Percentage (giving effect to any permitted reduction thereof) (including,
without limitation, when an Enhancement Increase Condition is no longer
continuing), the Servicer shall, prior to the close of business on the day any
Collections are deposited in the Collection Account, allocate to the Principal
Collections Sub-subaccount an amount equal to the lesser of (i) the product of
(A) the Class C Investor Percentage on the Date of Processing of such
Collections and (B) the aggregate amount of such Collections processed in
respect of Principal Receivables on such Date of Processing and (ii) the amount
that when subtracted from the Class C Investor Amount (after giving effect to
amounts
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previously allocated to the Principal Collections Sub-subaccount pursuant to
this subsection 4.9(b)) will cause the Class C Investor Percentage to equal the
Required Class C Percentage (taking into account any other Enhancement Increase
Condition that is still continuing); provided, however, that in no event shall
the Class C Investor Amount be reduced below $14,220,000 pursuant to this
subsection 4.9(b).
Section 4.10 Seller's or Servicer's Failure to Make a Deposit or
---------------------------------------------------
Payment. If the Servicer or Seller fails to make, or give instructions to make,
-------
any payment or deposit (other than as required by subsection 2.4(d), 2.4(e),
8.4, 9.2 or 12.2 of the Agreement) required to be made or given by the Servicer
or Seller, respectively, at the time specified in the Agreement (including
applicable grace periods), the Trustee shall make such payment or deposit from
the applicable Series Account or from amounts otherwise owing to the Seller or
the Servicer pursuant hereto without instruction from the Servicer or Seller.
The Trustee shall be required to make any such payment, deposit or withdrawal
hereunder only to the extent that the Trustee has sufficient information to
allow it to determine the amount thereof; provided, however, that the Trustee
shall in all cases be deemed to have sufficient information to determine the
amount of interest payable to the Series 1995-A Certificateholders on each
Distribution Date. The Servicer shall, upon request of the Trustee, promptly
provide the Trustee with all information necessary to allow the Trustee to make
such payment, deposit or withdrawal. Such funds or the proceeds of such
withdrawal shall be applied by the Trustee in the manner in which such payment
or deposit should have been made by Seller or the Servicer, as the case may be.
Section 4.11 Reallocated Principal Collections. The Servicer shall
---------------------------------
apply or shall cause the Trustee to apply on each Distribution Date a portion of
the Collections in respect of the preceding Monthly Period allocated pursuant to
subsection 4.4(c)(ii) equal to the lesser of (i) the Class C Investor Percentage
thereof and (ii) the excess, if any, of the Total Deficiency Amount over the
Investor Default Amount for such Monthly Period (such amounts, the "Class C
Reallocated Amounts") to pay the amounts specified in subsections 4.6(a), (b)
and (c) in the order of priority specified in subsection 4.6. If such Class C
Reallocated Amounts are insufficient to pay the amounts required pursuant to
subsections 4.6(a), (b) and (c), the Servicer shall apply or shall cause the
Trustee to apply on such Distribution Date a portion of the Collections in
respect of the preceding Monthly Period allocated pursuant to subsection
4.4(c)(ii) equal to the lowest of (i) the Class B Investor Percentage thereof,
(ii) the excess, if any, of the Total Deficiency Amount over the Investor
Default Amount for such Monthly Period and (iii) the amount of such
insufficiency (such amounts, the "Class B Reallocated Amounts"; collectively
with the Class C Reallocated Amounts, "Reallocated Principal Collections") to
pay the amounts specified in subsections 4.6(a), (b) and (c) in the order of
priority specified in Section 4.6. If there are Class B Reallocated Amounts and,
after giving effect to such Reallocated Principal Collections, the Class C
Investor Amount exceeds zero, the Class C Investor Amount shall be reduced by
the lesser of the Class B Reallocated Amounts and such remaining Class C
Investor Amount.
SECTION 7. Article V of the Agreement. Article V of the Agreement
--------------------------
shall read in its entirety as follows and shall be applicable only to the Series
1995-A Certificates:
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ARTICLE V
DISTRIBUTIONS AND REPORTS TO INVESTOR
CERTIFICATEHOLDERS
Section 5.1 Distributions.
-------------
(a) On each Distribution Date, the Paying Agent shall distribute (in
accordance with the certificate delivered by the Servicer to the Trustee
pursuant to subsection 3.4(b)) to each Class A Certificateholder of record on
the immediately preceding Record Date (other than as provided in subsection
2.4(e) or Section 12.3 respecting a final distribution) such Class A
Certificateholder's pro rata share (based on the aggregate Undivided Interests
represented by the Class A Certificates held by such Class A Certificateholder)
of amounts on deposit in the Distribution Account as are payable to the Class A
Certificates pursuant to Sections 4.7 and 4.8 on such Distribution Date by check
mailed to each Class A Certificateholder except that, with respect to Class A
Certificates registered in the name of the nominee of a Clearing Agency, such
distribution shall be made in immediately available funds.
(b) On each Distribution Date, the Paying Agent shall distribute (in
accordance with the certificate delivered by the Servicer to the Trustee
pursuant to subsection 3.4(b)) to each Class B Certificateholder of record on
the immediately preceding Record Date (other than as provided in subsection
2.4(e) or Section 12.3 respecting a final distribution) such Class B
Certificateholder's pro rata share (based on the aggregate Undivided Interests
represented by the Class B Certificates held by such Class B Certificateholder)
of amounts on deposit in the Distribution Account as are payable to the Class B
Certificates pursuant to Sections 4.7 and 4.8 by check mailed to each Class B
Certificateholder except that, with respect to Class B Certificates registered
in the name of the nominee of a Clearing Agency, such distribution shall be made
in immediately available funds.
(c) On each Distribution Date, the Paying Agent shall distribute (in
accordance with the certificate delivered by the Servicer to the Trustee
pursuant to subsection 3.4(b)) to each Class C Certificateholder of record on
the immediately preceding Record Date (other than as provided in subsection
2.4(e) or Section 12.3 respecting a final distribution) such Class C
Certificateholder's pro rata share (based on the aggregate Undivided Interests
represented by the Class C Certificates held by such Class C Certificateholder)
of amounts on deposit in the Distribution Account as are payable to the Class C
Certificates pursuant to Sections 4.7 and 4.8 by wire transfer to each Class C
Certificateholder.
Section 5.2 Monthly Certificateholders' Statement.
-------------------------------------
(a) On or before each Distribution Date, the Paying Agent shall
forward to each Series 1995-A Certificateholder and each Rating Agency a
statement substantially in the form of Exhibit E to this Series Supplement
prepared by the Servicer setting forth among other
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things the following information (which, in the case of subclauses (i), (ii) and
(iii) below, shall be stated on the basis of an original principal amount of
$1,000 per Series 1995-A Certificate and, in the case of subclause (viii) shall
be stated on an aggregate basis and on the basis of an original principal amount
of $1,000 per Series 1995-A Certificate):
(i) the total amount distributed;
(ii) the amount of such distribution allocable to Certificate
Principal;
(iii) the amount of such distribution allocable to Certificate
Interest;
(iv) the amount of Collections of Principal Receivables processed
during the preceding Monthly Period and allocated in respect of the Series
1995-A Certificates;
(v) the aggregate amount of Principal Receivables, the Class A
Investor Amount, the Class B Investor Amount, the Class C Investor Amount,
the Investor Amount and the Investor Amount as a percentage of the
aggregate amount of Principal Receivables in the Trust as of the end of the
day on the last day of the preceding Monthly Period;
(vi) the aggregate outstanding balance of Accounts which were one,
two, three, four, five and six or more months delinquent as of the most
recent Aging Date occurring on or before the last day of the preceding
Monthly Period;
(vii) the Monthly Period Finance Charge Sub-subaccount Allocation
for the preceding Monthly Period;
(viii) the Investor Default Amount for the preceding Monthly Period;
(ix) the Investor Net Recoveries for the preceding Monthly Period;
(x) Certificate Interest, for each class for such Distribution
Date;
(xi) the amount of the Investor Monthly Servicing Fee for the
preceding Monthly Period;
(xii) the Required Class C Percentage and the Class C Investor
Percentage as of the last day of the preceding Monthly Period;
(xiii) the Total Deficiency Amount for such Distribution Date;
(xiv) the aggregate amount of Class A Investor Charge Offs, Class B
Investor Charge Offs, Class C Investor Charge Offs, Class B Reallocated
Amounts and Class C Reallocated Amounts for the preceding Monthly Period;
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(xv) the aggregate amount of Class A Investor Charge Offs, Class B
Investor Charge Offs, Class C Investor Charge Offs, Class B Reallocated
Amounts and Class C Reallocated Amounts reimbursed on the Transfer Date
relating to such Distribution Date;
(xvi) the calculation of the Pay Out Event described in clause (c)
of Section 8 of the Series Supplement;
(xvii) the Class A Pool Factor, Class B Pool Factor and Class C Pool
Factor as of the preceding Record Date;
(xviii) the Portfolio Yield in respect of the preceding Monthly
Period;
(xix) the Base Rate in respect of the preceding Monthly Period;
(xx) the Excess Spread in respect of such Distribution Date; and
(xxi) the number of Additional Accounts which have been added to the
Trust pursuant to Section 2.6, and the number of Accounts which have been
removed from the Trust pursuant to Section 2.7, during the preceding
Monthly Period.
(b) Annual Certificateholders' Tax Statement. On or before January 31
----------------------------------------
of each calendar year, beginning with calendar year 1996, the Trustee shall
distribute on behalf of the Seller, to each Person who at any time during the
preceding calendar year was a Series 1995-A Certificateholder, a statement
prepared by the Seller and delivered to the Trustee on or before January 31 of
each calendar year containing the information required to be contained in the
regular monthly report to Series 1995-A Certificateholders, as set forth in
subclauses (i), (ii) and (iii) above, aggregated for such calendar year or the
applicable portion thereof during which such Person was a Series 1995-A
Certificateholder, together with such other customary information (consistent
with the treatment of the Series 1995-A Certificates as debt) as the Seller
deems necessary or desirable to enable the Series 1995-A Certificateholders to
prepare their tax returns consistent with the treatment of the Series 1995-A
Certificates as debt instruments. Such obligations of the Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Internal Revenue Code as from time to time in effect.
SECTION 8. Series Pay Out Events. If any one of the following
---------------------
events shall occur with respect to the Series 1995-A Certificates:
(a) failure on the part of Seller or the Servicer (i) to make any
payment or deposit required by the terms of (A) the Agreement, or (B) this
Series Supplement, on or before the date occurring five Business Days after the
date such payment or deposit is required to be made or (ii) duly to observe or
perform in any material respect any covenants or agreements applicable to it set
forth in the Agreement or this Series Supplement, which failure has a material
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adverse effect on the Series 1995-A Certificateholders and which continues
unremedied for a period of 60 days after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to the
Seller by the Trustee, or to the Seller and the Trustee by the Holders of Series
1995-A Certificates evidencing Undivided Interests aggregating not less than 50%
of the Investor Amount, and continues to affect materially and adversely the
interests of the Series 1995-A Certificateholders for such period; or
(b) any representation or warranty made by Seller in the Agreement or
this Series Supplement, or any information contained in a computer file or
microfiche list required to be delivered by Seller pursuant to Section 2.1 or
2.6 of the Agreement, shall prove to have been incorrect in any material respect
when made or when delivered, which continues to be incorrect in any material
respect for a period of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the Seller
by the Trustee, or to the Seller and the Trustee by the Holders of the Series
1995-A Certificates evidencing Undivided Interests aggregating not less than 50%
of the Investor Amount, and as a result of which the interests of the Series
1995-A Certificateholders are materially and adversely affected and continue to
be materially and adversely affected for such period; provided, however, that a
Series Pay Out Event pursuant to this subsection 8(b) shall not be deemed to
have occurred hereunder if the Seller has accepted reassignment of the related
Receivable, or all of such Receivables, if applicable, during such period in
accordance with the provisions of the Agreement; or
(c) the average of the Portfolio Yields for any three consecutive
Monthly Periods is a rate which is less than the Base Rate; or
(d) the Seller shall fail to designate Additional Accounts the
Receivables of which will be Eligible Receivables, as required by subsection
2.6(a), and such failure shall continue for a period of five Business Days; or
(e) any Servicer Default shall occur which would have a material
adverse effect on the Holders of the Series 1995-A Certificates;
then, and in any such event described in subparagraph (a), (b) or (e), after the
applicable grace period set forth in such subparagraphs, either the Trustee or
the Holders of Series 1995-A Certificates evidencing Undivided Interests
aggregating more than 50% of the Investor Amount by notice then given in writing
to the Seller and the Servicer (and to the Trustee if given by the
Certificateholders) may declare that a pay out event (a "Series Pay Out Event")
has occurred as of the date of such notice and in the case of any event
described in subparagraph (c) or (d) a Series Pay Out Event shall occur without
any notice or other action on the part of the Trustee or the Certificateholders
immediately upon the occurrence of such event. Notwithstanding the foregoing,
any failure of performance under subsection 8(a)(i) for a period of up to 60
calendar days with respect to an event described in clause (i) below or up to 15
calendar days with respect to an event described in clause (ii) below (in
addition to the five Business Days provided above) shall not constitute a Series
Pay Out Event for purposes of this sentence until the expiration of
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such period, if such failure could not be prevented by the exercise of
reasonable diligence by the Seller and such failure was caused by (i) an act of
God or the public enemy, acts of declared or undeclared war, public disorder,
rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes,
earthquakes, floods or similar causes or (ii) computer malfunction,
communication malfunction or other electronic system malfunction. The preceding
proviso shall not relieve the Seller or the Servicer from using all reasonable
efforts to perform its respective obligations in a timely manner in accordance
with the terms of this Agreement and any Supplement and the Seller shall provide
the Trustee and each Rating Agency with an Officer's Certificate giving prompt
notice of such failure, together with a description of its efforts to so perform
its obligations. Notice of any such Series Pay Out Event shall be given by the
Servicer to the Rating Agencies.
SECTION 9. Article I of Agreement. Article I of the Agreement shall
----------------------
be amended (i) by inserting the following new definitions to Section 1.1 in
alphabetical order:
"Bearer Certificate" shall have the meaning specified in Section 6.1.
"Cedel" shall mean CEDEL societe anonyme.
"Coupon" shall have the meaning specified in Section 6.1.
"Definitive Euro-Certificates" shall have the meaning specified in
Section 6.13.
"Depositary" shall mean, with respect to any Series, the Person
specified in the related Supplement in its capacity as depositary for the
respective accounts of any Clearing Agency or any Foreign Clearing
Agencies.
"ERISA" shall mean the Employment Retirement Income Security Act of
1974, as amended.
"Euroclear Operator" shall mean ▇▇▇▇▇▇ Guaranty Trust Company of New
York, Brussels office, as the operator of the Euroclear System.
"Euro-Exchange Date" shall mean, with respect to any Series, any date
that is after the Closing Date with respect to such Series, in the case of
Definitive Euro-Certificates in registered form, or upon presentation of
certification of non-United States beneficial ownership (as described in
Section 6.13), in the case of Definitive Euro-Certificates in bearer form.
"Foreign Clearing Agency" shall mean Cedel and the Euroclear Operator.
"Global Certificate" shall have the meaning specified in Section 6.13.
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"Manager" shall mean lead manager, manager or co-manager or person
performing a similar function with respect to an offering of Definitive
Euro-Certificates.
"Registered Certificate" shall have the meaning specified in Section
6.1.
"Registered Certificateholder" shall have the meaning specified in
Section 6.3.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"United States" shall mean the United States of America (including the
States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"U.S. Person" shall mean a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under
the laws of the United States, or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source;
and
(ii) by deleting the definitions of "Certificate Register" and
"Investor Certificateholder" from Section 1.1 and inserting in lieu thereof the
following new definitions:
"Certificate Register" shall mean the register maintained pursuant to
Section 6.3, providing for the registration of the Registered Certificates
and transfers and exchanges thereof.
"Investor Certificateholder" shall mean the Holder of record of a
Registered Certificate or the holder of any Bearer Certificate (or the
Global Certificate, as the case may be) or Coupon.
Article I of the Agreement as so amended shall be applicable to Series 95-A and
to each other Series issued on or after the date hereof.
SECTION 10. Article VI of Agreement. (a) Sections 6.1, 6.2, 6.3, 6.4,
-----------------------
6.5, 6.7 and 6.11 of the Agreement shall be amended and restated in their
entirety as follows and as amended and restated shall be applicable to Series
95-A and to each other Series issued on or after the date hereof:
Section 6.1 The Certificates. The Investor Certificates of each
----------------
Series and any Class thereof may be issued in bearer form ("Bearer
Certificates") with attached interest coupons and any other coupon
(collectively, the "Coupons") or in fully registered form ("Registered
Certificates") and shall be substantially in the form of the exhibits with
respect thereto attached to the related Supplement. The Exchangeable Seller
Certificate shall be substantially in the form of Exhibit A. The Investor
---------
Certificates and the Exchangeable Seller Certificate shall, upon issue, be
executed and delivered by the Trustee. Except as otherwise
-27-
provided in any Supplement, Bearer Certificates shall be issuable in a minimum
denomination of $5,000 Undivided Interest and Registered Certificates shall be
issuable in a minimum denomination of $1,000 Undivided Interest and integral
multiples thereof, and the Investor Certificates of each Series shall be issued
upon initial issuance in an aggregate original principal amount equal to the
Initial Investor Amount of such Series. The Exchangeable Seller Certificate
shall be issued in one Certificate. Each Certificate shall be executed by manual
or facsimile signature on behalf of the Trustee by an authorized officer of the
Trustee. Certificates bearing the manual or facsimile signature of the
individual who was, at the time when such signature was affixed, authorized to
sign on behalf of the Trustee shall not be rendered invalid, notwithstanding
that such individual has ceased to be so authorized prior to the authentication
and delivery of such Certificates or does not hold such office at the date of
such Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein
executed by or on behalf of the Trustee by the manual or facsimile signature of
a duly authorized signatory, and such certificate upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. Bearer Certificates shall be dated the
related Closing Date. All Certificates (other than Bearer Certificates) shall be
dated the date of their authentication.
Section 6.2 Authentication of Certificates. Contemporaneously with
------------------------------
the initial transfer of the Receivables, whether now existing or hereafter
acquired (other than Receivables in Additional Accounts) and the other
components to the Trust, the Trustee shall authenticate and deliver the initial
Series of Investor Certificates. The Trustee shall deliver the Exchangeable
Seller Certificate to Seller simultaneously with its delivery to or upon the
order of Seller of the initial Series of Investor Certificates. The
Certificates shall be duly authenticated by or on behalf of the Trustee, and
together shall evidence the entire ownership of the Trust. If specified in the
related Supplement for any Series, the Trustee shall authenticate the Global
Certificate that is issued upon original issuance of such Series and deliver it
outside of the United States.
Section 6.3 Registration of Transfer and Exchange of Certificates.
-----------------------------------------------------
(a) The Trustee shall cause to be kept at the office or agent to be maintained
by a transfer agent and registrar (the "Transfer Agent and Registrar") in
accordance with the provisions of Section 11.16 a register (the "Certificate
Register") in which, subject to such reasonable regulations as it may prescribe,
the Transfer Agent and Registrar shall provide for the registration of the
Registered Certificates and of transfers and exchanges of the Registered
Certificates as herein provided. The Trustee is hereby initially appointed
Transfer Agent and Registrar for the purpose of registering the Registered
Certificates and transfers and exchanges of the Registered Certificates as
herein provided. The Trustee shall be permitted to resign as Transfer Agent and
Registrar upon 30 days written notice to Seller. In the event that the Trustee
shall no longer be the Transfer Agent and Registrar, the Trustee shall appoint a
successor Transfer Agent and Registrar. The Seller may appoint any co-transfer
agent and co-registrar acceptable to the Trustee. Any reference in this
Agreement to the Transfer Agent and Registrar shall include any co-transfer
agent and co-registrar unless the context requires otherwise.
-28-
Upon surrender for registration of transfer of any Registered
Certificate of any Series at any office or agency of the Transfer Agent and
Registrar maintained for such purpose, the Trustee shall execute, authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Registered Certificates of such Series in authorized denominations of
like aggregate Undivided Interests.
At the option of a holder of a Registered Certificate (a "Registered
Certificateholder"), Registered Certificates of any Series may be exchanged for
other Registered Certificates of the same series and authorized denominations of
like Undivided Interests, upon surrender of the Registered Certificates to be
exchanged at any such office or agency. Registered Certificates, including
Registered Certificates received in exchange for Bearer Certificates, may not be
exchanged for Bearer Certificates. At the option of the Holder of a Bearer
Certificate, subject to applicable laws and regulations, Bearer Certificates may
be exchanged for other Bearer Certificates or Registered Certificates of the
same Series and authorized denominations of like Undivided Interests, upon
surrender of the Bearer Certificates to be exchanged at an office or agency of
the Transfer Agent and Registrar located outside the United States. Each Bearer
Certificate surrendered pursuant to this Section shall have attached thereto all
unmatured Coupons; provided that any Bearer Certificate so surrendered after the
close of business on the Record Date preceding the relevant payment date or
distribution date after the expected final payment date need not have attached
the Coupon relating to such payment date or distribution date (in each case, as
specified in the related Supplement).
Whenever any Investor Certificates are so surrendered for exchange the
Trustee shall execute and authenticate and the Transfer Agent and Registrar
shall deliver (in the case of Bearer Certificates, outside the United States)
the Investor Certificates which the Certificateholder making the exchange is
entitled to receive. Every Investor Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in a form satisfactory to the Trustee and the Transfer
Agent and Registrar duly executed by the Certificateholder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Investor Certificates, but the Transfer Agent and Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Investor
Certificates.
All Investor Certificates (together with any Coupons) surrendered for
registration of transfer and exchange shall be canceled and disposed of in a
manner satisfactory to Seller and the Trustee. The Trustee shall cancel and
destroy any Global Certificate upon its exchange in full for Definitive Euro-
Certificates and shall deliver a certificate of destruction to the Seller. Such
certificate shall also state that a certificate or certificates of a Foreign
Clearing Agency to the effect referred to in Section 6.13 was received with
respect to each portion of the Global Certificate exchanged for Definitive Euro-
Certificates.
-29-
(b) It is the understanding of the parties to this Agreement that
FCNB has particular expertise in performing the functions given by this
Agreement to the Servicer and that the Investor Certificateholders will be
purchasing Certificates relying on its exercising such expertise in performing
such functions. As provided in Sections 8.5 and 8.7, the Servicer is not
permitted to resign, except as otherwise permitted in such sections. Except as
provided in Section 7.2, the Exchangeable Seller Certificate, or any interest
therein, shall not be transferred, assigned, exchanged, or otherwise transferred
other than from Seller to any of its Affiliates.
(c) The Transfer Agent and Registrar will maintain its expense in the
Borough of Manhattan, The City of New York, and, if and so long as any Series or
Class is listed on the Luxembourg Stock Exchange, Luxembourg, an office or
offices or agency or agencies where Investor Certificates may be surrendered for
registration of transfer or exchange (except that Bearer Certificates may not be
surrendered for exchange at any such office or agency in the United States).
(d) Registration of transfer of Investor Certificates containing the
legend substantially to the effect set forth on Exhibit I-1 shall be effected
only if such transfer (x) is made pursuant to an effective registration
statement under the Securities Act, or is exempt from the registration
requirements under the Securities Act, and (y) is made to a Person which is not
an employee benefit plan, trust or account, including an individual retirement
account, that is subject to ERISA or that is described in Section 4975(e)(1) of
the Internal Revenue Code or an entity whose underlying assets include plan
assets by reason of a plan's investment in such entity (a "Benefit Plan"). In
the event that registration of a transfer is made in reliance upon an exemption
from the registration requirements under the Securities Act, the transferor or
the transferee shall deliver, at its expense, to the Seller, the Servicer and
the Trustee an investment letter substantially in the form of the investment and
ERISA representation letter attached hereto as Exhibit I-2, and no registration
of transfer shall be made until such letter is so delivered.
Investor Certificates issued upon registration or transfer of, or
Investor Certificates issued in exchange for, Investor Certificates bearing the
legend referred to above shall also bear such legend unless the Seller, the
Servicer, the Trustee and the Transfer Agent and Registrar receive an opinion of
counsel satisfactory to each of them, to the effect that such legend may be
removed.
Whenever an Investor Certificate containing the legend referred to
above is presented to the Transfer Agent and Registrar for registration of
transfer, the Transfer Agent and Registrar shall promptly seek instructions from
the Servicer regarding such transfer and shall be entitled to receive
instructions from the Servicer prior to registering any such transfer.
Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates. If
-------------------------------------------------
(a) any mutilated Certificate (together, in the case of Bearer Certificates,
with all unmatured Coupons (if any) appertaining thereto) is surrendered to the
Transfer Agent and Registrar, and the Transfer Agent and Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Transfer Agent and Registrar and
the Trustee such
-30-
security or indemnity as may be required by them (which unsecured agreement of
indemnity by an institutional Certificateholder shall be sufficient for such
purposes) to save each of them harmless, then, in the absence of notice to the
Trustee that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute and the Transfer Agent and Registrar shall deliver (in the
case of Bearer Certificates, outside the United States), in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and aggregate Undivided Interest. In connection with
the issuance of any new Certificate under this Section 6.4, the Trustee or the
Transfer Agent and Registrar may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
and the Transfer Agent and Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section 6.4 shall constitute complete and
indefeasible evidence of ownership in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section 6.5 Persons Deemed Owners. The Trustee and the Paying
---------------------
Agent, the Transfer Agent and Registrar and any agent of any of them may (a)
prior to due presentation of a Registered Certificate for registration of
transfer, treat the person in whose name any Registered Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Article V (as described in any Supplement) and for all
other purposes whatsoever, and (b) treat the bearer of a Bearer Certificate or
Coupon as the owner of such Bearer for the purpose of receiving distributions
pursuant to the terms of the related Supplement and for all other purposes
whatsoever; and, in any such case, neither the Trustee and the Paying Agent, the
Transfer Agent and Registrar nor any agent of any of them shall be affected by
any notice to the contrary; provided, however, that in determining whether the
holders of Investor Certificates evidencing the requisite Undivided Interests
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Investor Certificates owned by Seller, the Servicer or any
Affiliate thereof shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Investor Certificates which a Responsible Officer in the Corporate Trust Office
of the Trustee knows to be so owned shall be so disregarded. Investor
Certificates so owned which have been pledged in good faith shall not be
disregarded and may be regarded as outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Investor Certificates and that the pledgee is not Seller, the Servicer or an
Affiliate thereof.
Section 6.7 Access to List of Certificateholders' Names and
-----------------------------------------------
Addresses. The Trustee will furnish or cause to be furnished by the Transfer
---------
Agent and Registrar to the Servicer or the Paying Agent, within five Business
Days after receipt by the Trustee of a request therefor from the Servicer or the
Paying Agent, respectively, in writing, a list in such form as the servicer or
the Paying Agent may reasonably require, of the names and addresses of the
Registered Certificateholders as of the most recent Record Date for payment of
distributions to Investor Certificateholders. If Holders of Investor
Certificates (the "Applicants") evidencing Undivided Interests aggregating not
less than 10% of the Investor Amount of the Investor Certificates of any Series
apply in writing to the Trustee, and such application states that the Applicants
desire
-31-
to communicate with other Investor Certificateholders of any Series with respect
to their rights under this Agreement or under the Investor Certificates and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee, after having been adequately indemnified by the
Seller for its costs and expenses, shall afford or shall cause the Transfer
Agent and Registrar to afford such Applicants access during normal business
hours to the most recent list of Registered Certificateholders held by the
Trustee and shall give the Servicer notice that such request has been made,
within five Business Days after the receipt of such application. Such list shall
be as of a date no more than 45 days prior to the date of receipt of such
Applicants' request. Every Registered Certificateholder, by receiving and
holding a Registered Certificate, agrees with the Trustee that neither the
Trustee, the Transfer Agent and Registrar, nor any of their respective agents
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Registered Certificateholders hereunder,
regardless of the source from which such information was obtained.
Section 6.11 Definitive Certificates Initially Issued as Book-Entry
------------------------------------------------------
Certificates. If Book-Entry Certificates have been issued with respect to any
------------
Series and (i)(A) Seller advises the Trustee in writing that the Clearing Agency
is no longer willing or able properly to discharge its responsibilities under
the related Depository Agreement, and (B) the Trustee or Seller is unable to
locate a qualified successor, (ii) Seller, at its option, advises the Trustee in
writing that it elects to terminate the book-entry system through such Clearing
Agency or (iii) after the occurrence of a Servicer Default, Certificate Owners
of a Series representing beneficial interests aggregating not less than 50% of
the Investor Amount of a Series advise the Trustee and the related Clearing
Agency through the related Clearing Agency Participants in writing that the
continuation of a book-entry system through such Clearing Agency is no longer in
the best interests of the Certificate Owners, the Trustee shall notify all
Certificate Owners of such Series through such Clearing Agency, of the
occurrence of any such event and of the availability of Definitive Certificates
to Certificate Owners requesting the same. Upon surrender to the Trustee of the
Investor Certificates of such Series by the related Clearing Agency, accompanied
by registration instructions from the related Clearing Agency for registration,
the Trustee shall issue the Definitive Certificates of such Series. Neither
Seller nor the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates of such Series
all references herein to obligations imposed upon or to be performed by the
Clearing Agency shall be deemed to be imposed upon and performed by the Trustee,
to the extent applicable with respect to such Definitive Certificates and the
Trustee shall recognize the Holders of the Definitive Certificates of such
Series as Certificateholders of such Series hereunder.
(b) Article VI of the Agreement shall be amended by adding the
following new Section 6.13 and as amended shall be applicable to Series 95-A and
to each other Series issued on or after the date hereof:
Section 6.13 Global Certificate; Exchange Date. (a) If specified in
---------------------------------
the related Supplement for any Series, the Investor Certificates for such Series
or any Class thereof will initially be issued in the form of a single temporary
global Certificate (the "Global Certificate")
-32-
in bearer form, without interest coupons, in the denomination of the Initial
Investor Amount of such Series or initial investor amount of such Class, as the
case may be, substantially in the form of the exhibits with respect thereto
attached to the related Supplement. The Global Certificate will be executed and
authenticated by the Trustee upon the same conditions, in substantially the same
manner and with the same effect as the Definitive Certificates. The Global
Certificate may be exchanged as described below for Bearer or Registered
Certificates in definitive form (the "Definitive Euro-Certificates").
(b) The Manager shall upon its determination of the date of completion
of the distribution of Investor Certificates of any Series or Class initially
issued in the form of a Global Certificate so advise the Trustee, the Seller,
the Depositories, and each Foreign Clearing Agency. Without unnecessary delay,
but in any event not prior to the Euro-Exchange Date, the Trustee will execute
and authenticate and the Transfer Agent and Registrar will deliver at its London
office or its designated agent outside the United States definitive Bearer
Certificates in an aggregate principal amount equal to the Initial Investor
Amount of such Series or initial investor amount of such Class, as the case may
be. All Bearer Certificates so issued and delivered will have Coupons attached.
The Global Certificate may be exchanged for any equal aggregate principal amount
of Definitive Euro-Certificates only on or after the Euro-Exchange Date. An
institutional investor that is a U.S. Person may exchange the portion of the
Global Certificate beneficially owned by it only for any equal aggregate
principal amount of Registered Certificates bearing the applicable legend set
forth in the form of the Registered Certificate attached to the related
Supplement and having a minimum denomination of $500,000, which may be in
temporary form if the Seller so elects. The Seller may waive the $500,000
minimum denomination required if it so elects. Upon any demand for exchange for
Definitive Euro-Certificates in accordance with this paragraph, the Seller shall
cause the Trustee to authenticate and deliver the Definitive Euro-Certificates
to the Holder (x) outside the United States, in the case of Bearer Certificates,
and (y) according to the instructions of the Holder, in the case of Registered
Certificates, but, in either case, only upon presentation to the Trustee of a
written statement substantially in the form of Exhibit J-1 with respect to the
Global Certificate or portion thereof being exchanged by a Foreign Clearing
Agency and dated on the Euro-Exchange Date or a subsequent date, to the effect
that it has received in writing or by tested telex a certification substantially
in the form of (i) in the case of beneficial ownership of the Global Certificate
or a portion thereof being exchanged by a United States institutional investor
pursuant to the second preceding sentence, the certificate in the form of
Exhibit J-2 signed by the Manager which sold the relevant Certificates or (ii)
in all other cases, the certificate in the form of Exhibit J-3, the certificate
referred to in this clause (ii) being dated on the earlier of the first actual
payment of interest in respect of such Certificates and the date of the delivery
of such Certificates in definitive form. Upon receipt of such certification, the
Trustee shall cause the Global Certificate to be endorsed in accordance with
paragraph (d) below. Any exchange as provided in this Section shall be made free
of charge to the holders and beneficial owners of the Definitive Euro-
Certificates issued in exchange, except that a person receiving Definitive Euro-
Certificates must bear the cost of insurance, postage, transportation and the
like in the event that such person does not receive such Definitive Euro-
Certificates in person at the offices of a Foreign Clearing Agency.
-33-
(c) The delivery to the Trustee by a Foreign Clearing Agency of any
written statement referred to above may be relied upon by the Seller and the
Trustee as conclusive evidence that a corresponding certification or
certifications has or have been delivered to such Foreign Clearing Agency
pursuant to the terms of this Agreement.
(d) Upon any such exchange of all or a portion of the Global
Certificate for a Definitive Euro-Certificate or Certificates, such Global
Certificate shall be endorsed by or on behalf of the Trustee to reflect the
reduction of its principal amount by an amount equal to the aggregate principal
amount of such Definitive Euro-Certificate or Certificates. Until so exchanged
in full, such Global Certificate shall in all respects be entitled to the same
benefits under this Agreement as Definitive Euro-Certificates authenticated and
delivered hereunder except that the beneficial owners of such Global Certificate
shall not be entitled to receive payments of interest on the Certificates until
they have exchanged their beneficial interests in such Global Certificate for
Definitive Euro-Certificates.
SECTION 11. Exhibits to Agreement. The Agreement shall be amended
---------------------
by adding Exhibits I and J thereto in the forms of Exhibits F and G hereto.
SECTION 12. Terms Change Condition. FCNB will not make any change
----------------------
in the basic terms of the Charge Account Agreements in respect of the Accounts
that would cause the minimum monthly payment specified therein (i) to be less
than $10 (or the remaining balance, if less) unless the Rating Agency Condition
is satisfied with respect thereto or (ii) to be less than $15 (or the remaining
balance, if less) unless either the Rating Agency Condition is satisfied with
respect thereto or the Terms Change Enhancement Increase Condition is satisfied
with respect thereto (the "Terms Change Condition"). For purposes of this
Section 12, credit based promotions, including, without limitation, deferred
billing arrangements, skip payment programs and payment holidays shall not be
deemed to be a change in the basic terms of the Charge Account Agreements so
long as (i) the terms on which FCNB provides such promotions to the relevant
merchant are at least as favorable to FCNB (as determined in good faith by FCNB)
as FCNB would obtain in a comparable arm's length transaction with a merchant
that is not an Affiliate of FCNB and (ii) the allocable share of any related
merchant subsidy payments for any Monthly Period are paid by FCNB to the Trust
on an "as earned" basis. For purposes of the preceding sentence, the share of
such subsidy payments allocable to the Trust during any Monthly Period shall be
based upon FCNB's good faith estimate (which shall be final and binding for all
purposes of the Agreement) of the portion thereof allocable to the Accounts for
such period. Any such payment shall be made by FCNB on the Determination Date
following the Monthly Period in which such payments are earned and shall be
treated for all purposes of the Agreement (including, without limitation, for
purposes of calculating Portfolio Yield) as Finance Charge Collections for such
Monthly Period.
SECTION 13. Permitted Successor Servicer. With respect to Series
----------------------------
1995-A, any financial institution which does not qualify as a permitted
Successor Servicer under Section 10.2 of the Agreement shall qualify as a
permitted Successor Servicer if approved by the Holders of
-34-
Certificates evidencing Undivided Interests aggregating more than 50% of the sum
of the Class A Investor Amount and the Class B Investor Amount.
SECTION 14. Successors and Assigns. This Series Supplement shall be
----------------------
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Seller may not assign or transfer any of
its rights under this Series Supplement without the prior written consent of the
Holders of Certificates evidencing Undivided Interests aggregating more than 50%
of the sum of the Class A Investor Amount and the Class B Investor Amount.
SECTION 15. Final Distribution. Written notice of any termination,
------------------
specifying the Distribution Date upon which the Series 1995-A Certificateholders
may surrender their Series 1995-A Certificates for payment of the final
distribution and cancellation shall be given by the Trustee not later than the
60th day immediately preceding the Distribution Date on which final payment of
the Series 1995-A Certificates shall be made.
SECTION 16. Constituent Class C Certificates. (a) Subject to the
--------------------------------
satisfaction of the conditions set forth in subsection 16(c), the Class C
Certificateholders may at any time and from time to time (i) subdivide the Class
C Certificates into two or more subsidiary certificates, or (ii) reallocate all
or any portion of the amounts distributable to the Class C Certificateholders
pursuant to Article IV and Section 5.1 to any other Certificateholder. In
connection with such subdivision, the Seller may assign an interest rate to
Class C Certificates or a portion thereof. Upon presentation to the Trustee and
the Paying Agent of documentation satisfactory to the Trustee (to which the
Trustee may be a party, if requested by the Seller) reallocating payments with
respect to the Class C Certificates, the Trustee shall pay amounts due hereunder
to the Class C Certificateholders to the holders of such constituent
certificates or such other Certificateholder, as the case may be, pursuant to
the terms of such documentation.
(b) The documentation referred to in subsection (a) of this Section 16
shall set forth the rights of the holders of the certificates or other interests
issued thereby with respect to the approval of amendments and waivers pursuant
to Section 17.
(c) As a condition precedent to the subdivision of any Class C
Certificates pursuant to this Section 16, (A) the Trustee and the Seller shall
have received an opinion of ▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇ or other outside tax counsel
to the effect that (i) the certificates issued and sold to third parties will be
characterized as indebtedness or an interest in a partnership (not taxable as a
corporation) for federal income tax purposes, (ii) the subdivision will not
cause outstanding Class A Certificates and Class B Certificates to be
characterized as other than indebtedness for federal income tax purposes and
(iii) the subdivision will not be treated as a taxable sale, exchange or other
disposition for federal income tax purposes, (B) in the reasonable belief of the
Seller, as evidenced by an Officer's Certificate, such subdivision would not
cause a Pay Out Event with respect to the Series 1995-A to occur, or an event
which, with notice or lapse of time or both, would constitute a Pay Out Event
with respect to the Series 1995-A, and (C) the Rating Agency Condition shall
have been satisfied.
-35-
SECTION 17. Amendments. Solely with respect to any amendment
----------
pursuant to subsection 13.1(b) of the Agreement and any consent required
pursuant thereto from the Holders of Series 1995-A Certificates, this Series
Supplement and the Agreement may be amended from time to time by the Servicer,
the Seller and the Trustee with the consent of the Holders of Series 1995-A
Certificates evidencing Undivided Interests aggregating (x) more than 50% of the
Investor Amount (excluding any portion of the Investor Amount held by Spiegel or
any of its Affiliates) and (y) more than 50% of each of the Class A Investor
Amount, the Class B Investor Amount and the Class C Investor Amount to the
extent that such classes would be adversely affected, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Series Supplement or the Agreement or of modifying in any manner the
rights of the Certificateholders of any class of the Series 1995-A Certificates
then issued and outstanding; provided, however, that no such amendment under
this Section 17 shall (i) reduce in any manner the amount of, or delay the
timing of, distributions which are required to be made on any Certificate of any
class without the consent of all of the related Certificateholders; (ii) change
the definition of or the manner of calculating the interest of any Certificate
of any class without the consent of the related Certificateholders or (iii)
reduce the aforesaid percentage required to consent to any such amendment, in
each case without the consent of all such Certificateholders.
SECTION 18. Effectiveness. This Series Supplement shall become
-------------
effective as of the day and year first above written.
SECTION 19. Ratification of Agreement. As amended and supplemented
-------------------------
by this Series Supplement, the Agreement is in all respects ratified and
confirmed and the Agreement as so amended and supplemented by this Series
Supplement shall be read, taken and construed as one and the same instrument.
SECTION 20. Counterparts. This Series Supplement may be executed
------------
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all of such counterparts shall together constitute but one and
the same instrument.
SECTION 21. Governing Law. This Series Supplement shall be
-------------
construed in accordance with the laws of the State of Illinois, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
-36-
IN WITNESS WHEREOF, the parties have caused this Series 1995-A
Supplement to be duly executed by their respective officers as of the day and
year first above written.
SPIEGEL CREDIT CORPORATION III
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Treasurer
---------------------------------
FIRST CONSUMERS NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Treasurer
---------------------------------
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: /s/ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Vice President
---------------------------------
-37-
EXHIBIT A
to
SERIES 1995-A SUPPLEMENT
FORM OF SERIES 1995-A CLASS A CERTIFICATE
No._________ $______________
SPIEGEL MASTER TRUST
SERIES 1995-A CLASS A CERTIFICATE
Evidencing an undivided interest in a trust originated by Spiegel Credit
Corporation III ("SCC"), the corpus of which consists of a portfolio of
receivables created under charge accounts originated by First Consumers National
Bank ("FCNB") or Spiegel, Inc. ("Spiegel") and other assets and interests
constituting the trust under the Pooling and Servicing Agreement described
below.
(Not an interest in or obligation of
FCNB, SCC or Spiegel)
This certifies that ________________________ (the "Class A
Certificateholder") is the registered owner of an undivided interest in a trust
(the "Trust"), the corpus of which consists of a portfolio of receivables (the
"Receivables") now existing or hereafter created under selected charge accounts
originated by FCNB or Spiegel and acquired by SCC from FCNB and Spiegel
Acceptance Corporation ("SAC") pursuant to a Receivables Purchase Agreement,
dated as of September 20, 1994, among SCC, FCNB and SAC, as amended, and
transferred by SCC to the Trust, all monies due or to become due with respect
thereto and the other assets and interests constituting the Trust pursuant to an
Amended and Restated Pooling and Servicing Agreement, dated as of December 13,
1994, as amended and supplemented by the Series 1995-A Supplement thereto and
the Transfer Agreement No. 1 of Receivables in Additional Accounts, dated March
16, 1995 (collectively, the "Pooling and Servicing Agreement"), among SCC, FCNB
and ▇▇▇▇▇▇ Trust and Savings Bank, as trustee.
THIS CLASS A CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN
INTEREST IN, FCNB, SCC OR SPIEGEL, AND NONE OF THIS CERTIFICATE, THE RECEIVABLES
AND THE ACCOUNTS IS INSURED OR GUARANTEED BY THE FDIC OR ANY OTHER GOVERNMENTAL
AGENCY. THIS CLASS A CERTIFICATE IS LIMITED IN RIGHT OF PAYMENT TO CERTAIN
COLLECTIONS RESPECTING THE RECEIVABLES, ALL AS MORE SPECIFICALLY SET FORTH IN
THE POOLING AND SERVICING AGREEMENT.
SCC has structured the Pooling and Servicing Agreement and the Series
1995-A Certificates with the intention that the Series 1995-A Class A
Certificates will qualify under applicable tax law as indebtedness, and each
Class A Certificateholder by acceptance of its Series 1995-A Certificate agrees
to treat, and to take no action inconsistent with the treatment of, the Class A
Certificates for purposes of federal, state and local income or franchise taxes
and any other tax imposed on or measured by income, as indebtedness.
To the extent not defined herein, capitalized terms used herein have
the meanings assigned in the Pooling and Servicing Agreement. This Class A
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Class A Certificateholder
by virtue of its acceptance hereof assents and by which the Class A
Certificateholder is bound.
This Certificate is one of a series of Certificates entitled "Spiegel
Master Trust Series 1995-A Certificates" (the "Series 1995-A Certificates"),
consisting of three classes, the Series 1995-A Class A Certificates (the "Class
A Certificates"), the Series 1995-A Class B Certificates (the "Class B
Certificates") and the Series 1995-A Class C Certificates (the "Class C
Certificates"), each of which represents an undivided interest in the Trust,
including the right to receive the Collections and other amounts at the times
and in the amounts specified in the Pooling and Servicing Agreement to be
deposited in the Collection Account or the Series Accounts maintained for the
benefit of such Investor Certificates or paid to the Series 1995-A
Certificateholders. This Certificate is one of the Class A Certificates. The
Class B Certificates and Class C Certificates are subordinated in right of
payment to the Class A Certificates. The Exchangeable Seller Certificate
represents the interest in the remaining undivided interest in the Trust not
represented by all Series of Investor Certificates issued by the Trust. The
Exchangeable Seller Certificate may be exchanged by SCC pursuant to the Pooling
and Servicing Agreement for a newly issued Series of Investor Certificates and a
reissued Exchangeable Seller Certificate upon the conditions set forth in the
Pooling and Servicing Agreement.
Class A Certificate Interest will be distributed monthly on the
fifteenth Business Day of each calendar month (a "Distribution Date"). In the
case of the first interest payment, interest will accrue from the date of
issuance and in the case of subsequent interest payments, interest will accrue
from the preceding Distribution Date, in each case to but excluding the date of
payment thereof (an "Accrual Period"). Class A Certificate Interest accrued
during the Accrual Period will be distributed to the Class A Certificateholder
of record as of the close of business on the last Business Day of the month
preceding the related Distribution Date. During the Amortization Period,
Certificate Principal will be distributed to the Class A Certificateholder on
the Distribution Date of each calendar month commencing on the October, 1999
Distribution Date or earlier in the event of the occurrence of a Pay Out
Commencement Date.
The transfer of this Class A Certificate shall be registered in the
Certificate Register upon surrender of this Class A Certificate for registration
of transfer at any office or
-2-
agency maintained by the Transfer Agent and Registrar accompanied by a written
instrument of transfer in a form satisfactory to the Trustee and the Transfer
Agent and Registrar duly executed by the Class A Certificateholder or such Class
A Certificateholder's attorney duly authorized in writing, and thereupon one or
more new Class A Certificates of authorized denominations and for the same
aggregate Undivided Interests will be issued to the designated transferee or
transferees.
The Trustee, the Paying Agent and the Transfer Agent and Registrar,
and any agent of any of them, may treat the Person in whose name this Class A
Certificate is registered as the owner hereof for all purposes, and neither the
Trustee, the Paying Agent, the Transfer Agent and Registrar, nor any agent of
any of them shall be affected by notice to the contrary except in certain
circumstances described in the Pooling and Servicing Agreement.
The obligations in favor of this Class A Certificate created by the
Pooling and Servicing Agreement shall terminate on the earlier of (i) the date
after which funds shall have been deposited in the Distribution Account
sufficient to pay the Class A Investor Amount plus Class A Certificate Interest
accrued through the date of distribution thereof and (ii) the day on which final
payment is made on the Class A Certificates, but in no event later than the
September, 2004 Distribution Date.
Upon the termination of the Trust pursuant to Section 12.1 of the
Pooling and Servicing Agreement and the surrender of the Exchangeable Seller
Certificate, the Trustee shall return to the holder of the Exchangeable Seller
Certificate (without recourse, representation or warranty) all right, title and
interest of the Trust in, to and under the Receivables, whether then existing or
thereafter created, and all monies due or to become due with respect thereto
(including all accrued interest theretofore posted as Finance Charge
Receivables), all proceeds thereof and Insurance Proceeds relating thereto
except for amounts held by the Trustee pursuant to Section 12.3(b) of the
Pooling and Servicing Agreement. The Trustee shall execute and deliver such
instruments of transfer and assignment, in each case without recourse, as shall
be reasonably requested by the holder of the Exchangeable Seller Certificate to
vest in it all right, title and interest which the Trust had in the Receivables.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual or facsimile signature of a duly
authorized signatory, this Class A Certificate shall not be entitled to any
benefit under the Pooling and Servicing Agreement or be valid for any purpose.
-3-
IN WITNESS WHEREOF, the Trustee has caused this Class A Certificate to
be duly executed under its official seal.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Trustee
By:__________________________________
Vice President
[Seal]
Attested to:
By:________________________________
Assistant Secretary
Date:
-4-
Trustee's Certificate of Authentication
This is one of the Series 1995-A Class A Certificates referred to in
the within-mentioned Pooling and Servicing Agreement.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Trustee
By:_____________________________________
Authorized Officer
EXHIBIT B
to
SERIES 1995-A SUPPLEMENT
FORM OF SERIES 1995-A CLASS B CERTIFICATE
No._____________ $____________________
SPIEGEL MASTER TRUST
SERIES 1995-A CLASS B CERTIFICATE
Evidencing a subordinated undivided interest in a trust originated by Spiegel
Credit Corporation III ("SCC"), the corpus of which consists of a portfolio of
receivables created under charge accounts originated by First Consumers National
Bank ("FCNB") or Spiegel, Inc. ("Spiegel") and other assets and interests
constituting the trust under the Pooling and Servicing Agreement described
below.
(Not an interest in or obligation of
FCNB, SCC or Spiegel)
This certifies that __________________ (the "Class B
Certificateholder") is the registered owner of an undivided interest in a trust
(the "Trust"), the corpus of which consists of a portfolio of receivables (the
"Receivables") now existing or hereafter created under selected charge accounts
originated by FCNB or Spiegel and acquired by SCC from FCNB and Spiegel
Acceptance Corporation ("SAC") pursuant to a Receivables Purchase Agreement,
dated as of September 20, 1994, among SCC, FCNB and SAC, as amended, and
transferred by SCC to the Trust, all monies due or to become due with respect
thereto and the other assets and interests constituting the Trust pursuant to an
Amended and Restated Pooling and Servicing Agreement, dated as of December 13,
1994, as amended and supplemented by the Series 1995-A Supplement thereto and
the Transfer Agreement No. 1 of Receivables in Additional Accounts, dated March
16, 1995 (collectively, the "Pooling and Servicing Agreement"), among SCC, FCNB
and ▇▇▇▇▇▇ Trust and Savings Bank, as trustee.
THIS CLASS B CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN
INTEREST IN, FCNB, SCC OR SPIEGEL, AND NONE OF THIS CERTIFICATE, THE RECEIVABLES
AND THE ACCOUNTS IS INSURED OR GUARANTEED BY THE FDIC OR ANY OTHER GOVERNMENTAL
AGENCY. THIS CLASS B CERTIFICATE IS LIMITED IN RIGHT OF PAYMENT TO CERTAIN
COLLECTIONS RESPECTING THE RECEIVABLES AND IS EXPRESSLY
SUBORDINATED TO THE CLASS A CERTIFICATES, ALL AS MORE SPECIFICALLY SET FORTH IN
THE POOLING AND SERVICING AGREEMENT.
SCC has structured the Pooling and Servicing Agreement and the Series
1995-A Certificates with the intention that the Series 1995-A Class B
Certificates will qualify under applicable tax law as indebtedness, and each
Class B Certificateholder by acceptance of its Series 1995-A Certificate agrees
to treat, and to take no action inconsistent with the treatment of, the Series
1995-A Class B Certificates for purposes of federal, state and local income or
franchise taxes and any other tax imposed on or measured by income, as
indebtedness.
To the extent not defined herein, capitalized terms used herein have
the meanings assigned in the Pooling and Servicing Agreement. This Class B
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing, as amended from time to time, the Class B Certificateholder by virtue
of its acceptance hereof assents and by which the Class B Certificateholder is
bound.
This Certificate is one of a series of Certificates entitled "Spiegel
Master Trust Series 1995-A Certificates" (the "Series 1995-A Certificates"),
consisting of three classes, the Series 1995-A Class A Certificates (the "Class
A Certificates"), the Series 1995-A Class B Certificates (the "Class B
Certificates") and the Series 1995-A Class C Certificates (the "Class C
Certificates"), each of which represents an undivided interest in the Trust,
including the right to receive the Collections and other amounts at the times
and in the amounts specified in the Pooling and Servicing Agreement to be
deposited in the Collection Account or the Series Accounts maintained for the
benefit of such Investor Certificates or paid to the Series 1995-A
Certificateholders. This Certificate is one of the Class B Certificates. The
Class B Certificates are subordinate in right of payment to the Class A
Certificates. The Exchangeable Seller Certificate represents the interest in the
remaining undivided interest in the Trust not represented by all Series of
Investor Certificates issued by the Trust. The Exchangeable Seller Certificate
may be exchanged by SCC pursuant to the Pooling and Servicing Agreement for a
newly issued Series of Investor Certificates and a reissued Exchangeable Seller
Certificate upon the conditions set forth in the Pooling and Servicing
Agreement.
Class B Certificate Interest will be distributed monthly on the fifteenth
Business Day of each calendar month (a "Distribution Date"). In the case of the
first interest payment, interest will accrue from the date of issuance and in
the case of subsequent interest payments, interest will accrue from the
preceding Distribution Date, in each case to but excluding the date of payment
thereof (an "Accrual Period"). Class B Certificate Interest accrued during the
Accrual Period will be distributed to the Class B Certificateholder of record as
of the close of business on the last Business Day of the month preceding the
related Distribution Date. Certificate Principal will be distributed to the
Class B Certificateholder on the Distribution Date of each calendar month
commencing with the first Distribution Date occurring on or after the Class B
Principal Payment Commencement Date.
-2-
The transfer of this Class B Certificate shall be registered in the
Certificate Register upon surrender of this Class B Certificate for registration
of transfer at any office or agency maintained by the Transfer Agent and
Registrar accompanied by a written instrument of transfer in a form satisfactory
to the Trustee and the Transfer Agent and Registrar duly executed by the Class B
Certificateholder or such Class B Certificateholder's attorney duly authorized
in writing, and thereupon one or more new Class B Certificates of authorized
denominations and for the same aggregate Undivided Interests will be issued to
the designated transferee or transferees.
The Trustee, the Paying Agent and the Transfer Agent and Registrar,
and any agent of any of them, may treat the Person in whose name this Class B
Certificate is registered as the owner hereof for all purposes, and neither the
Trustee, the Paying Agent, the Transfer Agent and Registrar, nor any agent of
any of them shall be affected by notice to the contrary except in certain
circumstances described in the Pooling and Servicing Agreement.
The obligations in favor of this Class B Certificate created by the
Pooling and Servicing Agreement shall terminate on the earlier of (i) the date
after which funds shall have been deposited in the Distribution Account
sufficient to pay the Class B Investor Amount plus Class B Certificate Interest
accrued through the date of distribution thereof and (ii) the day on which final
payment is made on the Class B Certificates, but in no event later than the
September, 2004 Distribution Date.
Upon the termination of the Trust pursuant to Section 12.1 of the
Pooling and Servicing Agreement and the surrender of the Exchangeable Seller
Certificate, the Trustee shall return to the holder of the Exchangeable Seller
Certificate (without recourse, representation or warranty) all right, title and
interest of the Trust in, to and under the Receivables, whether then existing or
thereafter created, and all monies due or to become due with respect thereto
(including all accrued interest theretofore posted as Finance Charge
Receivables), all proceeds thereof and Insurance Proceeds relating thereto
except for amounts held by the Trustee pursuant to Section 12.3(b) of the
Pooling and Servicing Agreement. The Trustee shall execute and deliver such
instruments of transfer and assignment, in each case without recourse, as shall
be reasonably requested by the holder of the Exchangeable Seller Certificate to
vest in it all right, title and interest which the Trust had in the Receivables.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual or facsimile signature of a duly
authorized signatory, this Class B Certificate shall not be entitled to any
benefit under the Pooling and Servicing Agreement or be valid for any purpose.
-3-
IN WITNESS WHEREOF, the Trustee has caused this Class B Certificate to
be duly executed under its official seal.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Trustee
By:____________________________________
Vice President
[Seal]
Attested to:
By:_____________________________
Assistant Secretary
Date:
-4-
Trustee's Certificate of Authentication
This is one of the Series 1995-A Class B Certificates referred to in
the within-mentioned Pooling and Servicing Agreement.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Trustee
By:_____________________________________
Authorized Officer
EXHIBIT C
to
SERIES 1995-A SUPPLEMENT
FORM OF SERIES 1995-A CLASS C CERTIFICATE
THIS CERTIFICATE WAS ISSUED PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, AND FROM APPLICABLE
STATE SECURITIES LAWS, AND IS NOT TRANSFERRABLE WITHOUT COMPLIANCE WITH THE
REGISTRATION REQUIREMENTS OF ALL APPLICABLE SECURITIES LAWS OR THE AVAILABILITY
OF EXEMPTIONS THEREFROM.
No______________ $_________________
SPIEGEL MASTER TRUST
SERIES 1995-A CLASS C CERTIFICATE
Evidencing a subordinated undivided interest in a trust originated by Spiegel
Credit Corporation III ("SCC"), the corpus of which consists of a portfolio of
receivables created under charge accounts originated by First Consumers National
Bank ("FCNB") or Spiegel, Inc. ("Spiegel") and other assets and interests
constituting the trust under the Pooling and Servicing Agreement described
below.
(Not an interest in or obligation of
FCNB, SCC or Spiegel)
This certifies that ________________________ (the "Class C
Certificateholder") is the registered owner of an undivided interest in a trust
(the "Trust") , the corpus of which consists of a portfolio of receivables (the
"Receivables") now existing or hereafter created under selected charge accounts
originated by FCNB or Spiegel and acquired by SCC from FCNB and Spiegel
Acceptance Corporation ("SAC") pursuant to a Receivables Purchase Agreement,
dated as of September 20, 1994, among SCC, FCNB and SAC, as amended, and
transferred by SCC to the Trust, all monies due or to become due with respect
thereto and the other assets and interests constituting the Trust pursuant to an
Amended and Restated Pooling and Servicing Agreement, dated as of December 13,
1994, as amended and supplemented by the Series 1995-A Supplement thereto and
the Transfer Agreement No. 1 of Receivables in Additional Accounts, dated March
16, 1995 (collectively, the "Pooling and Servicing Agreement"), among SCC, FCNB
and ▇▇▇▇▇▇ Trust and Savings Bank, as trustee.
THIS CLASS C CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN
INTEREST IN, FCNB, SCC OR SPIEGEL, AND NONE OF THIS CERTIFICATE, THE RECEIVABLES
AND THE ACCOUNTS IS INSURED OR GUARANTEED BY THE FDIC OR ANY OTHER GOVERNMENTAL
AGENCY. THIS CLASS C CERTIFICATE IS LIMITED IN RIGHT OF PAYMENT TO CERTAIN
COLLECTIONS RESPECTING THE RECEIVABLES AND IS EXPRESSLY SUBORDINATED TO THE
CLASS A CERTIFICATES AND THE CLASS B CERTIFICATES, ALL AS MORE SPECIFICALLY SET
FORTH IN THE POOLING AND SERVICING AGREEMENT.
SCC has structured the Pooling and Servicing Agreement and the Series
1995-A Certificates with the intention that the Series 1995-A Class C
Certificates will qualify under applicable tax law as indebtedness, and the
Class C Certificateholder by acceptance of its Series 1995-A Certificate agrees
to treat, and to take no action inconsistent with the treatment of, the Series
1995-A Class C Certificates for purposes of federal, state and local income or
franchise taxes and any other tax imposed on or measured by income, as
indebtedness.
To the extent not defined herein, capitalized terms used herein have
the meanings assigned in the Pooling and Servicing Agreement. This Class C
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Class C Certificateholder
by virtue of its acceptance hereof assents and by which the Class C
Certificateholder is bound.
This Certificate is one of a series of Certificates entitled "Spiegel
Master Trust Series 1995-A Certificates" (the "Series 1995-A Certificates"),
consisting of three classes, the Series 1995-A Class A Certificates (the "Class
A Certificates"), the Series 1995-A Class B Certificates (the "Class B
Certificates") and the Series 1995-A Class C Certificates (the "Class C
Certificates"), each of which represents an undivided interest in the Trust,
including the right to receive the Collections and other amounts at the times
and in the amounts specified in the Pooling and Servicing Agreement to be
deposited in the Collection Account or the Series Accounts maintained for the
benefit of such Investor Certificates or paid to the Series 1995-A
Certificateholders. This Certificate is one of the Class C Certificates. The
Class C Certificate is subordinated in right of payment to the Class A
Certificates and the Class B Certificates. The Exchangeable Seller Certificate
represents the interest in the remaining undivided interest in the Trust not
represented by all Series of Investor Certificates issued by the Trust. The
Exchangeable Seller Certificate may be exchanged by SCC pursuant to the Pooling
and Servicing Agreement for a newly issued Series of Investor Certificates and a
reissued Exchangeable Seller Certificate upon the conditions set forth in the
Pooling and Servicing Agreement.
SCC from time to time may subdivide the Class C Certificates and may
sell or otherwise transfer all or a portion thereof to other investors. The
aggregate principal amount of the Class C Certificates may increase and decrease
upon the occurrence of certain events defined in the Pooling and Servicing
Agreement.
-2-
The transfer of this Class C Certificate shall be registered in the
Certificate Register upon surrender of this Class C Certificate for registration
of transfer at any office or agency maintained by the Transfer Agent and
Registrar accompanied by a written instrument of transfer in a form satisfactory
to the Trustee and the Transfer Agent and Registrar duly executed by the Class C
Certificateholder or such Class C Certificateholder's attorney duly authorized
in writing, and thereupon one or more new Class C Certificates of authorized
denominations and for the same aggregate Undivided Interests will be issued to
the designated transferee or transferees.
The Trustee, the Paying Agent and the Transfer Agent and Registrar,
and any agent of any of them, may treat the Person in whose name this Class C
Certificate is registered as the owner hereof for all purposes, and neither the
Trustee, the Paying Agent, the Transfer Agent and Registrar, nor any agent of
any of them shall be affected by notice to the contrary except in certain
circumstances described in the Pooling and Servicing Agreement.
The obligations in favor of this Class C Certificate created by the
Pooling and Servicing Agreement shall terminate on the day on which final
payment is made on the Series 1995-A Certificates, but in no event later than
the September, 2004 Distribution Date.
Upon the termination of the Trust pursuant to Section 12.1 of the
Pooling and Servicing Agreement and the surrender of the Exchangeable Seller
Certificate, the Trustee shall return to the holder of the Exchangeable Seller
Certificate (without recourse, representation or warranty) all right, title and
interest of the Trust in, to and under the Receivables, whether then existing or
thereafter created, and all monies due or to become due with respect thereto
(including all accrued interest theretofore posted as Finance Charge
Receivables), all proceeds thereof and Insurance Proceeds relating thereto
except for amounts held by Trustee pursuant to Section 12.3(b) of the Pooling
and Servicing Agreement. The Trustee shall execute and deliver such instruments
of transfer and assignment, in each case without recourse, as shall be
reasonably requested by the holder of the Exchangeable Seller Certificate to
vest in it all right, title and interest which the Trust had in the Receivables.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual or facsimile signature of a duly
authorized signature, this Class C Certificate shall not be entitled to any
benefit under the Pooling and Servicing Agreement or be valid for any purpose.
-3-
IN WITNESS WHEREOF, the Trustee has caused this Class C Certificate to
be duly executed under its official seal.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Trustee
By:____________________________________
Vice President
[Seal]
Attested to:
By:_____________________________
Assistant Secretary
Date:
-4-
Trustee's Certificate of Authentication
This is one of the Series 1995-A Class C Certificates referred to in
the within-mentioned Pooling and Servicing Agreement.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Trustee
By:_________________________________
Authorized Officer
EXHIBIT D
to
SERIES 1995-A SUPPLEMENT
FORM OF MONTHLY PAYMENT INSTRUCTIONS AND
NOTIFICATION TO TRUSTEE
SPIEGEL MASTER TRUST
SERIES 1995-A
The undersigned, a duly authorized representative of First Consumers
National Bank ("FCNB"), as Servicer pursuant to the Amended and Restated Pooling
and Servicing Agreement dated as of December 13, 1994, as amended and
supplemented by the Series 1995-A Supplement thereto (the "Pooling and Servicing
Agreement") among Spiegel Credit Corporation III ("SCC"), FCNB and ▇▇▇▇▇▇ Trust
and Savings Bank, as trustee (the "Trustee"), does hereby certify as follows:
A. Capitalized terms used in this Certificate have their respective
meanings set forth in the Pooling and Servicing Agreement, as amended by
the Series 1995-A Supplement thereto; provided, that the "preceding Monthly
Period" shall mean the Monthly Period immediately preceding the calendar
month in which this Certificate is delivered. References herein to certain
sections and subsections are references to the respective sections and
subsections of the Pooling and Servicing Agreement. This Certificate is
delivered pursuant to Section 4.6 of the Pooling and Servicing Agreement.
B. FCNB is the Servicer under the Pooling and Servicing Agreement.
C. The undersigned is a Servicing Officer.
D. The date of this notice is a Determination Date under the Pooling
and Servicing Agreement.
I. INSTRUCTION TO MAKE A WITHDRAWAL
Pursuant to Section 4.6, the Servicer does hereby instruct the Trustee
(i) to make a withdrawal from the Finance Charge Sub-subaccount on ____________,
199_, which date is a Transfer Date under the Pooling and Servicing Agreement,
in an aggregate amount as set forth below [, including $_______________ to be
withdrawn from the Principal Collection Sub-subaccount pursuant to Section
4.11,] in respect of the following amounts and (ii) to apply the proceeds of
such withdrawal in accordance with Section 4.6:
A. Pursuant to Subsection 4.6(a):
-----------------------------
Class A Certificate Interest for the
preceding Accrual Period............................$______________
B. Pursuant to Subsection 4.6(b):
-----------------------------
Class B Certificate Interest for the
preceding Accrual Period............................$______________
C. Pursuant to Subsection 4.6(c):
-----------------------------
Investor Monthly Servicing Fee
for the preceding Monthly Period....................$______________
D. Pursuant to Subsection 4.6(d):
-----------------------------
Investor Default Amount for the preceding
Monthly Period (less the aggregate amount
of Investor Charge Offs in respect of such
Monthly Period).....................................$______________
E. Pursuant to Subsection 4.6(e):
-----------------------------
Aggregate reimbursed Investor Charge
Offs, Class B Reallocated Amounts and
Class C Reallocated Amounts.........................$______________
F. Pursuant to Subsection 4.6(f):
-----------------------------
Excess Spread payable to the holder of
the Class C Certificate.............................$______________
II. INSTRUCTION TO MAKE A WITHDRAWAL
Pursuant to Section 4.8, the Servicer does hereby instruct the Trustee
(i) to make a withdrawal from the Principal Collection Sub-subaccount on
_____________, 199_, which date is a Transfer Date under the Pooling and
Servicing Agreement, and (ii) apply such amount in accordance with Section 4.8:
A. Amounts to be distributed to the Series
1995-A Class A Certificateholders in accordance
with Subsection 4.8(b)(i) and Section 5.1............$_____________
B. Amounts to be distributed to the Series 1995-A Class B
Certificateholders in accordance with Subsection
-2-
4.8(b)(ii) and Section 5.1...........................$_____________
C. Amounts to be distributed to the Series 1995-A Class C
Certificateholders in accordance with Subsection
4.8(b)(iii) and Section 5.1..........................$____________
D. Amount to be distributed to the Holder of
the Exchangeable Seller Certificate..................$____________
-3-
IN WITNESS WHEREOF, the undersigned has duly executed this certificate
this ___________day of________________, 199__.
FIRST CONSUMERS NATIONAL BANK,
as Servicer
By: ___________________________________
Title:
-4-
EXHIBIT E
to
SERIES 1995-A SUPPLEMENT
FORM OF MONTHLY CERTIFICATEHOLDERS' STATEMENT
SPIEGEL MASTER TRUST
SERIES 1995-A
Under Section 5.2 of the Amended and Restated Pooling and Servicing
Agreement dated as of December 13, 1994, as amended by the Series 1995-A
Supplement thereto (the "Pooling and Servicing Agreement"), among Spiegel Credit
Corporation III, First Consumers National Bank ("FCNB") and ▇▇▇▇▇▇ Trust and
Savings Bank, as trustee (the "Trustee"), FCNB, as Servicer, is required to
prepare certain information each month regarding current distributions to Series
1995-A Certificateholders and the performance of the Spiegel Master Trust (the
"Trust") during the previous month. The information which is required to be
prepared with respect to the Distribution Date of _____________, 199__ and with
respect to the performance of the Trust during the month of _______________
199__ is set forth below. Certain of the information is presented on the basis
of an original principal amount of $1,000 per Series 1995-A Certificate (a
"Certificate"). Certain other information is presented based on the aggregate
basis and on the basis of an original principal amount of $1,000 per Series
1995-A Certificate. Capitalized terms used in this certificate have their
respective meanings set forth in the Pooling and Servicing Agreement.
A. Information Regarding the Current Monthly Distribution
(stated on the basis of $1,000 original certificate
principal amount)
1. The total amount of the distribution to
Certificateholders on ____________ 199__, per
$1,000 original certificate principal
amount...............................................$________________
2. The amount of the distribution set forth in
paragraph 1 above in respect of principal of the
Certificates, per $1,000 original certificate
principal amount.....................................$________________
3. The amount of the distribution set forth in
paragraph 1 above in respect of interest on
the Certificates, per $1,000 original
certificate principal amount.........................$________________
B. Information Regarding the Performance of the Trust
1. The aggregate amount of Collections on Principal
Receivables processed during the month of
_____________,199__ which were allocated in
respect of the Certificates..........................$_______________
2. Principal Receivables in the Trust
(a) The aggregate amount of Principal Receivables
in the Trust as of end of the day on
_____________, 199__ the last day of
the month............................................$______________
(b) The Class A Investor Amount as of
___________, 199__ (the last day of the
month)...............................................$______________
(c) The Class B Investor Amount as of
______________, 199__ (the last day of the
month)...............................................$______________
(d) The Class C Investor Amount as of
____________, 199__ (the last day of the
month)...............................................$_____________
(e) The Investor Amount as of__________, 199__
(the last day of the month)..........................$_____________
(f) The Investor Amount set forth in paragraph 2(e)
above as a percentage of the aggregate amount
of Principal Receivables set forth in paragraph
2(a) above...........................................$_____________
-2-
3. Delinquent Balances
The aggregate amount of outstanding balances in the
Accounts which were delinquent as of the date such
delinquency was determined for the month of _________,
199__:
Aggregate Account
Balance
-------
(a) one month: $_______________
(b) two months: $_______________
(c) three months: $_______________
(d) four months: $_______________
(e) five months: $_______________
(f) six or more months: $_______________
Total: $_______________
4. Monthly Period Finance Charge
Sub-subaccount Allocation for the month
of ______________, 199___.................................$__________
5. Investor Default Amount
The aggregate amount of all defaulted
Receivables written off as uncollectible
during the month of __________, 199__
allocable to the Investor Amount (the
"Aggregate Investor Default Amount")......................$__________
6. Investor Net Recoveries for the month
of ____________, 199__ ...................................$__________
7. Class A Certificate Interest for the
month of ____________, 199__ .............................$__________
8. Class B Certificate Interest for the
month of __________, 199___ ..............................$__________
9. Investor Monthly Servicing Fee for the
month of ____________, 199__ .............................$__________
10. The Required Class C Percentage and the
Class C Investor Percentage as of the last day of
-3-
the month of_____________, 199___.........................$__________
11. Total Deficiency Amount, Investor Charge
Offs and Reimbursement of Charge Offs
(a) The excess, if any, of the sum of
the amounts set forth in paragraphs
5, 7, 8 and 9 above over the amount set
forth in paragraph 4 above (the
"Total Deficiency Amount")...........................$_________
(b) The lesser of the Total Deficiency
Amount and the Class C Investor Amount
(the "Class C Investor Charge Off")..................$_________
(c) The excess, if any, of the Total
Deficiency Amount over the Class C
Investor Amount (the "Class B
Investor Charge Off")................................$_________
(d) The excess, if any, of the Total
Deficiency Amount over the sum of the
Class C Investor Amount and the Class
B Investor Amount (the "Class A Investor
Charge Off") ........................................$_________
(e) The least of (i) the excess, if any,
of the Total Deficiency Amount
over the Investor Default Amount,
(ii) the Class C Investor Amount
and, (iii) the amount of principal collections
available (plus any amounts allocated to Class C
pursuant to (f), the "Class C Reallocated
Amounts")............................................$_________
(f) The least of (i) the Total Deficiency
Amount after giving effect to (e),
(ii) the Class B Investor Amount,
and (iii) the amount of principal
collections available (such amount less
any remaining Class C Investors
Amount, the "Class B Reallocated
Amounts")............................................$_________
-4-
(g) The total amount reimbursed to the
Trust in the current month in
respect of Class A Investor Charge
Offs in prior months ................................$_________
(h) The total amount reimbursed to the
Trust in the current month in respect of
Class B Investor Charge Offs in prior months ........$_________
(i) The total amount reimbursed to the
Trust in the current month in respect of
Class C Investor Charge Offs in prior months ........$_________
(j) The total amount reimbursed to the
Trust in the current month in respect of
Class B Reallocated Amounts in prior months..........$_________
(k) The total amount reimbursed to the
Trust in the current month in respect of
Class C Reallocated Amounts in prior months .........$_________
12. The average of the Portfolio Yield for the prior three
Monthly Periods ..........................................$_________
13. The Pool Factor
(a) The Class A Pool Factor (which represents the ratio of the amount
of the Class A Investor Amount on the last day of the month of
_____________, 199__ (adjusted for the Class A Charge Offs set
forth in 10(d) above and the amount of the reimbursement set
forth in 10(g) above) to the amount of the Class A Investor
Amount as of the Initial Closing Date). The amount of a
Certificateholder's pro rata share of the Investor Amount can be
determined by multiplying the original denomination of the
holder's Certificate by the relevant Pool Factor.....$_________
(b) The Class B Pool Factor (which represents the ratio of the amount
of the Class B Investor Amount on the last day of the month of
______________, 199__ (adjusted for the Class B Charge Offs set
forth in 10(c) above and the amount of the reimbursement set
forth in 10(h) above) to the amount of the Class B Investor
Amount as of the Initial Closing Date). The amount of a
Certificateholder's pro rata share of the Investor Amount can be
determined by
-5-
multiplying the original denomination of the holder's Certificate
by the relevant Pool Factor..........................$_________
(c) The Class C Pool Factor (which represents the ratio of the amount
of the Class C Investor Amount on the last day of the month of
___________, 199__ (adjusted for the Class C Charge Offs set
forth in 10(b) above and the amount of the reimbursement set
forth in 10(i) above) to the amount of the Class C Investor
Amount as of the Initial Closing Date). The amount of a
Certificateholder's pro rata share of the Investor Amount can be
determined by multiplying the original denomination of the
holder's Certificate by the relevant Pool Factor.....$_________
14. Portfolio Yield
The Portfolio Yield for the month of ____________________, 199__
..........................................................$_________
15. Base Rate
The Base Rate for the Accrual Period ending ________________, 19__
..........................................................$_________
16. Excess Spread
The Excess Spread in respect of such Distribution Date....$_________
C. Accounts Added/Removed
The number of Additional Accounts which have been added to the Trust
pursuant to subsection 2.6 of the Pooling and Servicing Agreement, and the
number of Accounts which have been removed from the Trust pursuant to
Section 2.7, during the month of ________________, 19__ .........$_________
FIRST CONSUMERS NATIONAL BANK,
as Servicer
By:_____________________________
Title:__________________________
-6-
EXHIBIT F-1
to
SERIES 1995-A
SUPPLEMENT
EXHIBIT I-1
to
AMENDED AND RESTATED POOLING
AND SERVICING AGREEMENT
PRIVATE PLACEMENT LEGEND
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS CERTIFICATE NOR ANY PORTION
HEREOF MAY BE OFFERED, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED EXCEPT IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY
APPLICABLE PROVISIONS OF ANY STATE SECURITIES LAWS OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE TRANSFER OF THIS CERTIFICATE IS
SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF ANY EMPLOYEE
BENEFIT PLAN, TRUST OR ACCOUNT, INCLUDING AN INDIVIDUAL RETIREMENT ACCOUNT, THAT
IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED,
OR THAT IS DESCRIBED IN SECTION 4975(E)(1) OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF A PLAN'S INVESTMENT IN SUCH ENTITY.
EXHIBIT F-2
to
SERIES 1995-A
SUPPLEMENT
EXHIBIT I-2
to
AMENDED AND RESTATED POOLING
AND SERVICING AGREEMENT
FORM OF UNDERTAKING LETTER
[Date]
First Consumers National Bank
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Indenture Trust Division
Spiegel Credit Corporation III
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Re: Purchase of $___________ 1/ principal amount of
-
Spiegel Master Trust, Series [ ] Class [ ]
Certificates
Dear Sirs:
In connection with our purchase of the above-referenced Certificates (the
"Certificates") we confirm that:
(i) We understand that the certificates are not being registered under
the Securities Act Of 1933, as amended (the "Securities Act"), and are
being sold to us in a transaction that is exempt from the registration
requirements of the Securities Act;
_______________________
1/ Not less than $250,000 minimum principal amount.
-
(ii) any information we desire concerning the Certificates or any
other matter relevant to our decision to purchase the Certificates is or
has been made available to us;
(iii) we have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an
investment in the Certificates, and we (and any account for which we are
purchasing under paragraph (iv) below) are able to bear the economic risk
of an investment in the Certificates; we (and any account for which we are
purchasing under paragraph (iv) below) are an "accredited investor" (as
such term is defined in Rule 501(a)(1), (2) or (3) of Regulation D under
the Securities Act); and we are not and none of such accounts is, a Benefit
Plan;
(iv) we are acquiring the Certificates for our own account or for
accounts as to which we exercise sole investment discretion and not with a
view to any distribution of the Certificates, subject, nevertheless, to the
understanding that the disposition of our property shall at all times be
and remain within our control;
(v) we agree that the Certificates must be held indefinitely by us
unless the Certificates are subsequently registered under the Securities
Act or an exemption from any registration requirements of that Act and any
applicable state securities laws is available;
(vi) we agree that in the event that at some future time we wish to
dispose of or exchange any of the Certificates (such disposition or
exchange not being currently foreseen or contemplated), we will not
transfer or exchange any of the Certificates unless
(A) (1) the sale is of at least U.S. $250,000 principal
amount of Certificates to an Eligible Purchaser (as defined below),
(2) a letter substantially to the same effect as paragraphs (i), (ii),
(iii), (iv), (v) and (vi) of this letter is executed promptly by
such purchaser and (3) all offers or solicitations in connection with
the sale, whether directly or through any agent acting on our behalf,
are limited only to Eligible Purchasers and are not made by means of
any form of general solicitation or general advertising whatsoever;
(B) the Certificates are transferred pursuant to Rule 144
promulgated under the Securities Act by us after we have held them for
more than three years; or
(C) the Certificates are sold in any other transaction that
does not require registration under the Securities Act and, if the
Seller, the Servicer, the Trustee or the Transfer Agent and Registrar
so requests, we theretofore have furnished to such party an opinion of
counsel satisfactory to such party, in form and substance satisfactory
to such party, to such effect; or
(D) the Certificates are transferred pursuant to Rule 144A
promulgated under the Securities Act; and
-2-
(vii) we understand that the Certificates will bear a legend to
substantially the following effect:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS CERTIFICATE NOR ANY PORTION
HEREOF MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY
APPLICABLE PROVISIONS OF ANY STATE SECURITIES LAWS OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN."
"THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A BENEFIT
PLAN (AS DEFINED BELOW)."
The first paragraph of this legend may be removed if the Seller, the Servicer,
the Trustee and the Transfer Agent and Registrar have received an opinion of
counsel satisfactory to them, in form and substance satisfactory to them, to the
effect that such paragraph may be removed.
"Eligible Purchaser" means either an Eligible Dealer or a corporation,
------------------
partnership or other entity which we have reasonable grounds to believe and do
believe can make representations with respect to itself to substantially the
same effect as the representations set forth herein. "Eligible Dealer" means
---------------
any corporation or other entity the principal business of which is acting as a
broker and/or dealer in securities. "Benefit Plan" means any employee benefit
------------
plan, trust or account, including an individual retirement account, that is
subject to the Employee Retirement Income Security Act of 1974, as amended, or
that is described in Section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended, or an entity whose underlying assets include plan assets by reason of a
plan's investment in such entity. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Amended and Restated Pooling
and Servicing Agreement, dated as of December 13, 1994, among Spiegel Credit
Corporation III, First Consumers National Bank and ▇▇▇▇▇▇ Trust and Savings
Bank, as amended by Series 1995-A Supplement dated as of March ___, 1995.
Very truly yours,
_______________________________
(Name of Purchaser)
By:_____________________________
(Authorized Officer)
-3-
EXHIBIT G-1
to
SERIES 1995-A
SUPPLEMENT
EXHIBIT J-1
to
AMENDED AND RESTATED POOLING
AND SERVICING AGREEMENT
FORM OF CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE TRUSTEE BY
EUROCLEAR OR CEDEL FOR
DELIVERY OF DEFINITIVE CERTIFICATES
IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL SECURITY
SPIEGEL MASTER TRUST,
Series [ ] Class [ ] Certificates
---------------------------------
[Insert title or sufficient description of
Certificates to be delivered]
We refer to that portion of the temporary Global Certificate in respect of
the above-captioned issue which is herewith submitted to be exchanged for
definitive Certificates (the "Submitted Portion") as provided in the Amended and
Restated Pooling and Servicing Agreement, dated as of December 13, 1994, among
Spiegel Credit Corporation III, First Consumers National Bank and ▇▇▇▇▇▇ Trust
and Savings Bank, as amended by Series 1995-A Supplement dated as of March _,
1995 (as further amended and supplemented from time to time, the "Agreement") in
respect of such issue. This is to certify that (i) we have received a
certificate or certificates, in writing or by tested telex, with respect to each
of the persons appearing in our records as being entitled to a beneficial
interest in the Submitted Portion and with respect to such person's beneficial
interest either (a) from such person on behalf of an institutional investor
qualifying as a "Qualified Institutional Buyer," substantially in the form of
Exhibit J-2 to the Agreement, or (b) from any other person, substantially in the
form of Exhibit J-3 to the Agreement, and (ii) the Submitted Portion includes no
part of the temporary Global Certificate excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
We understand that this certificate is required in connection with certain
securities and tax laws in the United States of America. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in
such proceedings.
Dated:1/
-
[▇▇▇▇▇▇ Guaranty Trust, Company of New
York, Brussels office, as operator of the
Euroclear Systems]2/
-
[CEDEL societe anonyme]2/
-
By: ____________________________
___________________
1/ To be dated on the Euro-Exchange Date.
-
2/ Delete the inappropriate reference.
-
-2-
EXHIBIT G-2
to
SERIES 1995-A
SUPPLEMENT
EXHIBIT J-2
to
AMENDED AND RESTATED POOLING
AND SERVICING AGREEMENT
FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CEDEL
BY [INSERT NAME OF MANAGER]
WITH RESPECT TO REGISTERED CERTIFICATES SOLD TO
QUALIFIED INSTITUTIONAL BUYERS
SPIEGEL MASTER TRUST,
Series [ ] Class [ ] Certificates
----------------------------------
In connection with the initial issuance and placement of the above
referenced Certificates (the "Certificates") issued pursuant to the Amended and
Restated Pooling and Servicing Agreement, dated as of December 13, 1994, among
Spiegel Credit Corporation III, First Consumers National Bank and ▇▇▇▇▇▇ Trust
and Savings Bank, as amended by Series 1995-A Supplement dated as of March __,
1995 (as further amended and supplemented from time to time, the "Agreement"),
an institutional investor in the United States ("institutional investor") is
purchasing U.S. $_____________ aggregate principal amount of the Certificates
held in our account at [▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System] [Cedel societe anonyme) on behalf
of such investor.
We reasonably believe that such institutional investor is a qualified
institutional buyer as such term is defined under Rule 144A promulgated under
the Securities Act of 1933, as amended.
The Definitive Certificates in respect of this certificate are to be issued
in registered form in the minimum denomination of U.S. $500,000 and such
Definitive Certificates (and, unless the Agreement otherwise provides, any
Certificates issued in exchange or substitution for or on registration of
transfer of Certificates) shall bear the following legend:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933. NEITHER THIS CERTIFICATE NOR ANY PORTION HEREOF
MAY BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO
U.S. PERSONS (EACH AS DEFINED HEREIN), EXCEPT IN COMPLIANCE WITH THE
REGISTRATION PROVISIONS OF SUCH ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE TRANSFER OF THIS
CERTIFICATE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. THIS CERTIFICATE CANNOT BE
EXCHANGED FOR A BEARER CERTIFICATE."
Dated:
[ ]
By:___________________________________
Authorized Officer
-2-
EXHIBIT G-3
to
SERIES 1995-A
SUPPLEMENT
EXHIBIT J-3
to
AMENDED AND RESTATED POOLING
AND SERVICING AGREEMENT
FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CEDEL BY A
BENEFICIAL OWNER OF CERTIFICATES, OTHER
THAN A QUALIFIED INSTITUTIONAL BUYER
SPIEGEL MASTER TRUST,
Series [ ] Class [ ] Certificates
---------------------------------
This is to certify that as of the date hereof and except as provided in the
third paragraph hereof, the above-captioned Certificates held by you for our
account (i) are owned by a person that is not a U.S. Person, or (ii) are owned
by & U.S. Person that is (A) the foreign branch of a United States financial
institution (as defined in U.S. Treasury Regulations Section 1.165-12(c) (1)(v)
(a "financial institution@) purchasing for its own account or for resale, or (B)
a U.S. Person who acquired the Certificates through the foreign branch of a
financial institution and who holds the Certificates through the financial
institution on the date hereof (and in either case (A) or (B), the financial
institution hereby agrees to comply with the requirements of Section 165 (j) (3)
(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by a financial institution for
purposes of resale during the Restricted Period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)). In addition, financial institutions
described in clause (iii) of the preceding sentence (whether or not also
described in clause (i) or (ii)) certify that they have not acquired the
Certificates for purposes of resale directly or indirectly to a U.S. Person or
to a person within the United States or its possessions.
We undertake to advise you by tested telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the above-
captioned Certificates in bearer form with respect to such of said Certificates
as then appear in your books as being held for our account.
This certificate excepts and does not relate to U.S. $_______________
principal amount of Certificates held by you for our account, as to which we are
not yet able to certify beneficial ownership. We understand that delivery of
Definitive Certificates in such principal amount cannot be made until we are
able to so certify.
We understand that this certificate is required in connection with certain
securities and tax laws in the United States of America. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction; and "U.S. Person" means a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States, or any political
subdivision thereof, or an estate or trust the income of which is subject to
United States federal income taxation regardless of its source.
Dated:/1/
By:___________________________
As, or an agent for, the
beneficial owner(s) of the
interest in the Certificates to
which this certificate relates.
___________________
/1/ This Certificate must be dated on the earlier of the date of the first
actual payment of interest in respect of the Certificates and the date of
the delivery of the Certificates in definitive form.