EXHIBIT 4.8
RECEIVABLES PURCHASE AGREEMENT
between
WORLD FINANCIAL NETWORK NATIONAL BANK
RPA Seller,
and
WFN CREDIT COMPANY, LLC
Purchaser
Dated as of [_________], 2001
RECEIVABLES PURCHASE AGREEMENT, dated as of [ ], 2001
(this "AGREEMENT") between WORLD FINANCIAL NETWORK NATIONAL BANK, a national
banking association ("WFN"), as seller ("RPA SELLER"), and WFN CREDIT
COMPANY, LLC, a Delaware limited liability company, as purchaser
("PURCHASER").
R E C I T A L S:
WHEREAS, Purchaser desires to purchase, from time to time, certain
Receivables arising under certain specified Accounts of RPA Seller;
WHEREAS, RPA Seller desires to sell and assign such Receivables to
Purchaser, from time to time, upon the terms and conditions hereinafter set
forth;
WHEREAS, prior to the Certificate Trust Termination Date, it is
contemplated that the Receivables purchased hereunder will be transferred by
Purchaser to BNY Midwest Trust Company ("CERTIFICATE TRUST TRUSTEE"), as
Trustee for World Financial Network Credit Card Master Trust (the
"CERTIFICATE TRUST"), pursuant to the Second Amended and Restated Pooling and
Servicing Agreement dated as of [ ], 2001 (the "POOLING AND
SERVICING AGREEMENT") among WFN Credit Company, LLC, as Transferor, WFN, as
Servicer, and Certificate Trust Trustee in connection with the issuance of
certain Investor Certificates;
WHEREAS, after the Certificate Trust Termination Date, it is
contemplated that the Receivables purchased hereunder will be transferred by
Purchaser to World Financial Network Credit Card Master Note Trust (the "NOTE
TRUST") pursuant to the Transfer and Servicing Agreement, dated as of
[ ], 2001 between WFN Credit Company, LLC, as Transferor, WFN, as
Servicer and the Note Trust, and that the Note Trust will thereafter pledge
all of its right, title and interest therein to BNY Midwest Trust Company
("INDENTURE TRUSTEE"), as Indenture Trustee for the benefit of the
Noteholders under Indenture, dated as of [ ], 2001 (the
"INDENTURE") among Indenture Trustee and the Note Trust;
NOW, THEREFORE, it is hereby agreed by and between Purchaser and RPA
Seller as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. Each capitalized term used herein or in any
certificate, document, or Conveyance Paper made or delivered pursuant hereto,
and not defined herein or therein, shall (i) prior to the Certificate Trust
Termination Date, have the meaning (if any) specified in the Pooling and
Servicing Agreement, and, if not otherwise defined therein, shall have the
meaning specified in Annex A to the Indenture and (ii) after the Certificate
Trust
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Termination Date, shall have the meaning specified in Annex A to the Indenture.
In addition, the following words and phrases shall have the following meanings:
"CLOSING DATE" means, collectively, (a) prior to the Certificate Trust
Termination Date, any "Closing Date" (as defined in the Pooling and Servicing
Agreement) and (b) any "Closing Date" (as defined in Annex A to the Indenture).
"ENHANCEMENT" means, collectively, (a) prior to the Certificate Trust
Termination Date, any "Enhancement" (as defined in the Pooling and Servicing
Agreement) and (b) any "Enhancement" (as defined in Annex A to the Indenture).
"ENHANCEMENT PROVIDER" means, collectively, (a) prior to the
Certificate Trust Termination Date, any "Enhancement Provider" (as defined in
the Pooling and Servicing Agreement) and (b) any "Enhancement Provider" (as
defined in Annex A to the Indenture).
"HOLDERS" means the Investor Holders and the Noteholders.
"RATING AGENCY" means (a) with respect to any Series of Investor
Certificates, a "Rating Agency" (as defined in the Pooling and Servicing
Agreement) for such Series, and (b) with respect to any Series of Notes, a
"Rating Agency" (as defined in Annex A to the Indenture) for such Series.
"RATING AGENCY CONDITION" means, with respect to any action, that the
"Rating Agency Condition" (as defined in the Pooling and Servicing Agreement)
shall have been satisfied with respect to each outstanding Series of Investor
Certificates and that the "RATING AGENCY CONDITION" (as defined in Annex A to
the Indenture) shall have been satisfied with respect to each outstanding Series
of Notes.
"SERIES" means, as the context requires, (a) any Series (as defined in
the Pooling and Servicing Agreement) or (b) any "Series" (as defined in Annex A
to the Indenture).
"SUPPLEMENT" means any "SUPPLEMENT" to (and as defined in) the Pooling
and Servicing Agreement and any Indenture Supplement.
"TRANSACTION DOCUMENTS" means, collectively, (a) prior to the
Certificate Trust Termination Date, the "TRANSACTION DOCUMENTS" (as defined in
the Pooling and Servicing Agreement) and (b) the "Transaction Documents" (as
defined in Annex A to the Indenture).
Section 1.2 OTHER DEFINITIONAL PROVISIONS. All terms defined
directly or by reference in this Agreement shall have the defined meanings
when used in any certificate or other document delivered pursuant hereto
unless otherwise defined therein. For purposes of this Agreement and all such
certificates and other documents, unless the context otherwise requires: (i)
accounting terms not otherwise defined in this Agreement, and accounting
terms partly defined in this
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Agreement to the extent not defined, shall have the respective meanings given
to them under generally accepted accounting principles; (ii) terms defined in
Article 9 of the UCC as in effect in the State of Ohio and not otherwise
defined in this Agreement are used as defined in that Article; (iii) any
reference to each Rating Agency shall only apply to any specific rating
agency if such rating agency is then rating any outstanding Series; (iv)
references to any amount as on deposit or outstanding on any particular date
means such amount at the close of business on such day; (v) the words
"hereof," "herein" and "hereunder" and words of similar import refer to this
Agreement (or the certificate or other document in which they are used) as a
whole and not to any particular provision of this Agreement (or such
certificate or document); (vi) references to any Section, Schedule or Exhibit
are references to Sections, Schedules and Exhibits in or to this Agreement
(or the certificate or other document in which the reference is made), and
references to any paragraph, Section, clause or other subdivision within any
Section or definition refer to such paragraph, subsection, clause or other
subdivision of such Section or definition; (vii) the term "including" means
"including without limitation"; (viii) references to any law or regulation
refer to that law or regulation as amended from time to time and include any
successor law or regulation; (ix) references to any Person include that
Person's successors and assigns; and (x) headings are for purposes of
reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
ARTICLE II
SALE AND CONTRIBUTION OF RECEIVABLES
Section 2.1 SALES AND CONTRIBUTIONS.
(a) In consideration of the membership interest in Purchaser held
by RPA Seller, RPA Seller agrees to contribute, and does hereby contribute to
Purchaser, and Purchaser agrees to accept, and does hereby accept, from RPA
Seller on the Effective Date, $[ ] of Existing Assets. The Existing
Assets not so contributed to Purchaser on the Effective Date are hereby sold,
transferred, set over, assigned and otherwise conveyed by RPA Seller to
Purchaser for a purchase price to be agreed to by RPA Seller and Purchaser,
which purchase price shall be payable on the Effective Date and shall not be
materially less favorable to RPA Seller than prices for transactions of a
generally similar character taking into account the quality of such Existing
Assets and other pertinent factors. The purchase price for the Existing
Assets (other than Existing Assets contributed to Purchaser) shall be deemed
to be a borrowing under the Subordinated Note. The contribution and sales of
the Existing Assets from RPA Seller to Purchaser are subject in each case to
any rights in the Existing Assets transferred, assigned, set over or
otherwise conveyed to the Certificate Trust Trustee pursuant to the Existing
PSA. It is understood and agreed that the obligations of RPA Seller specified
herein with respect to the Receivables, including its repurchase obligations
under ARTICLE VI of this Agreement, shall apply to all Receivables, whether
originated before, on or after the Effective Date. RPA Seller and
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Purchaser hereby agree that each existing Receivable sold by RPA Seller to the
Certificate Trust pursuant to the Existing PSA before the Effective Date shall
be deemed to have been sold by RPA Seller to Purchaser on the date on which it
was so sold to the Certificate Trust.
(b) RPA Seller hereby transfers, assigns, sets over and otherwise
conveys to Purchaser without recourse (except as expressly provided herein), and
Purchaser purchases and/or accepts as a capital contribution, as applicable,
from RPA Seller, all of RPA Seller's right, title and interest in and to the
Receivables now existing and arising from time to time in the Accounts and
Related Assets with respect thereto (other than the Existing Assets); PROVIDED,
HOWEVER, that Principal Receivables originated after the occurrence of an
Insolvency Event with respect to RPA Seller shall not be conveyed hereunder.
(c) RPA Seller agrees (i) to record and file, at its own expense,
financing statements (and continuation statements when applicable) with respect
to the Receivables now existing and hereafter created, meeting the requirements
of applicable state law in such manner and in such jurisdictions as are
necessary to perfect, and maintain perfection of, the conveyance of the
Receivables to Purchaser and the first priority nature of Purchaser's interest
in the Receivables and to deliver a file-stamped copy of such financing
statements or other evidence of such filings to Purchaser and Receivables Trust
Trustee (which evidence may, for purposes of this SECTION 2.1, consist of
telephone confirmation of such filing to Purchaser and Receivables Trust
Trustee, followed by delivery of a file stamped copy to Receivables Trust
Trustee with a copy to Purchaser as soon as is practicable after filing) on or
prior to the Effective Date, and in the case of any continuation statements
filed pursuant to this SECTION 2.1, as soon as practicable after receipt thereof
by RPA Seller.
(d) RPA Seller further agrees, at its own expense, (i) on or prior to
(A) the Automatic Addition Termination Date or an Automatic Addition Suspension
Date, or subsequent to a Restart Date, in the case of any Accounts designated
pursuant hereto prior to such date, (B) the applicable Addition Date, in the
case of Supplemental Accounts, and (C) the applicable Removal Date, in the case
of Removed Accounts, to indicate in its appropriate computer files that
Receivables created in connection with the Accounts (other than Removed
Accounts) have been sold to Purchaser pursuant to this Agreement and transferred
by Purchaser to the Receivables Trust pursuant to the applicable Transfer
Agreement for the benefit of the Holders (or conveyed to the Transferor or its
designee in accordance with SECTION 2.9 of the Pooling and Servicing Agreement
or SECTION 2.7 of the Transfer and Servicing Agreement, as the case may be, in
the case of Removed Accounts) by including in such computer files the code
identifying each such Account (or, in the case of Removed Accounts, either
including such a code identifying the Removed Accounts only if the removal
occurs prior to the Automatic Addition Termination Date or Automatic Addition
Suspension Date or subsequent to a Restart Date, or deleting such code
thereafter) and (ii) on or prior to the date referred to in CLAUSES (i)(A), (B)
or (C), as
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applicable, to deliver to Purchaser and Receivables Trust Trustee an Account
Schedule (PROVIDED that such Account Schedule shall be provided in respect of
Automatic Additional Accounts on or prior to the Determination Date relating to
the Monthly Period during which the respective Addition Dates occur) specifying
for each such Account, as of the Automatic Addition Termination Date or
Automatic Addition Suspension Date, in the case of CLAUSE (i)(A), the applicable
Addition Cut Off Date, in the case of Supplemental Accounts, and the Removal
Date, in the case of Removed Accounts, its account number, the aggregate amount
outstanding in such Account and the aggregate amount of Principal Receivables in
such Account. Such Account Schedule shall be supplemented from time to time to
reflect Supplemental Accounts and Removed Accounts. Once the code referenced in
CLAUSE (i) of this paragraph has been included with respect to any Account, RPA
Seller further agrees not to alter such code or other notation during the term
of this Agreement unless and until (x) such Account becomes a Removed Account,
(y) a Restart Date has occurred on which Purchaser starts including Automatic
Additional Accounts as Accounts or (z) RPA Seller shall have delivered to
Purchaser and Receivables Trust Trustee and, after the Certificate Trust
Termination Date, the Owner Trustee at least 30 days prior written notice of its
intention to do so and has taken such action as is necessary or advisable to
cause the respective interests of Purchaser and Receivables Trust Trustee in the
Receivables and other Trust Assets to continue to be perfected with the priority
required by this Agreement and the applicable Transfer Agreement, respectively.
(e) It is the intention of the parties hereto that the conveyances of
the Existing Assets, the Receivables and the other Related Assets by RPA Seller
to Purchaser as provided in this SECTION 2.1 be, and be construed as, an
absolute sales or capital contributions, including for accounting purposes,
without recourse except as explicitly provided herein, of the Existing Assets,
the Receivables and the other Related Assets by RPA Seller to Purchaser.
Furthermore, it is not intended that such conveyance be deemed a pledge of the
Existing Assets, the Receivables and the other Related Assets by RPA Seller to
Purchaser to secure a debt or other obligation of RPA Seller. If, however,
notwithstanding the intention of the parties, the conveyance provided for in
this SECTION 2.1 is determined to be a transfer for security, then this
Agreement shall also be deemed to be a security agreement and RPA Seller hereby
grants to Purchaser a security interest in all of RPA Seller's right, title and
interest in and to the Existing Assets, the Receivables and the other Related
Assets.
Section 2.2 ADDITION OF ADDITIONAL ACCOUNTS.
(a) REQUIRED ADDITIONS. If Purchaser is required, pursuant to SECTION
2.8(b) of the Pooling and Servicing Agreement or SECTION 2.6 of the Transfer and
Servicing Agreement, to designate additional Eligible Accounts as Supplemental
Accounts or to convey Participation Interests to the Receivables Trust,
Purchaser shall so notify RPA Seller. RPA Seller shall designate such Eligible
Accounts as Supplemental Accounts and shall convey to Purchaser
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Receivables in such Supplemental Accounts or (if it so elects) shall convey such
Participation Interests to Purchaser, subject to the same qualifications and
restrictions as are set forth in SECTION 2.8 of the Pooling and Servicing
Agreement or SECTION 2.6 of the Transfer and Servicing Agreement, as applicable,
with respect to Purchaser; PROVIDED, HOWEVER, that the failure of RPA Seller to
transfer Receivables or Participation Interests to Purchaser as provided in this
paragraph solely as a result of the unavailability of a sufficient amount of
Eligible Receivables shall not constitute a breach of this Agreement; PROVIDED
FURTHER, that any such failure which has not been timely cured will nevertheless
result in the occurrence of an Early Amortization Event with respect to each
Series for which, pursuant to the Supplement therefor, a failure by Purchaser to
convey Receivables in Additional Accounts or Participation Interests to the
Receivables Trust by the day on which it is required to convey such Receivables
or Participation Interests constitutes an "EARLY AMORTIZATION EVENT" (as defined
in such Supplement).
(b) PERMITTED ADDITIONS. Subject to the restrictions and
qualifications set forth in SECTION 2.8 of the Pooling and Servicing Agreement
or SECTION 2.6 of the Transfer and Servicing Agreement, Purchaser shall exercise
its rights to designate additional Eligible Accounts as Supplemental Accounts or
Automatic Additional Accounts pursuant to SECTIONS 2.8(a) and (c) of the Pooling
and Servicing Agreement or SECTIONS 2.6(a) and (c) of the Transfer and Servicing
Agreement when requested to do so by RPA Seller.
(c) ADDITIONAL APPROVED PORTFOLIOS. Subject to the restrictions and
qualifications set forth in SECTION 2.8(e) of the Pooling and Servicing
Agreement or SECTION 2.6 of the Transfer and Servicing Agreement, Purchaser
shall exercise its rights to designate additional portfolios of accounts as
"Approved Portfolios" when requested to do so by RPA Seller.
(d) DELIVERY OF DOCUMENTS. RPA Seller agrees to provide to Purchaser
such information, certificates, financing statements, opinions and other
materials as are reasonably necessary to enable Purchaser to satisfy its
obligations under SECTION 2.8 of the Pooling and Servicing Agreement and SECTION
2.6 of the Transfer and Servicing Agreement with respect to Supplemental
Accounts, Automatic Additional Accounts or Participation Interests of RPA
Seller. In the case of the designation of Supplemental Accounts, RPA Seller
shall deliver to Purchaser on the date designated by Purchaser (i) the computer
file, microfiche list or written list required to be delivered pursuant to
SECTION 1.1 with respect to such Supplemental Accounts and (ii) a duly executed,
written assignment, substantially in the form of EXHIBIT A (the "SUPPLEMENTAL
CONVEYANCE").
(e) REPRESENTATIONS AND WARRANTIES. In connection with the
designation of any Eligible Account as a Supplemental Account, the conveyance of
any Participation Interests to Purchaser, RPA Seller shall represent and warrant
that:
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(i) each Supplemental Account is, as of the Addition Date, an
Eligible Account, and each Receivable in such Supplemental Account is,
as of the Addition Cut Off Date, an Eligible Receivable; no selection
procedures believed by RPA Seller to be materially adverse to the
interests of Purchaser or the Holders or were utilized in selecting
the Additional Accounts from the available Eligible Accounts in an
Approved Portfolio; and that as of the Addition Date, RPA Seller is
not insolvent; and
(ii) as of the Addition Date, the Supplemental Conveyance
constitutes a valid sale to Purchaser of all right, title and interest
of RPA Seller in and to the Receivables and the Related Assets then
existing and thereafter created from time to time in the Supplemental
Accounts, and such property will be held by Purchaser free and clear
of any Lien of any Person claiming through or under RPA Seller or any
of its Affiliates
Section 2.3 REMOVAL OF ACCOUNTS. Purchaser may remove Accounts from
the Receivables Trust in accordance with SECTION 2.9 of the Pooling and
Servicing Agreement or SECTION 2.7 of the Transfer and Servicing Agreement. On
each day on which Accounts are removed from the Receivables Trust pursuant to
SECTION 2.9 of the Pooling and Servicing Agreement or SECTION 2.7 of the
Transfer and Servicing Agreement, RPA Seller and Purchaser may, but shall not be
required to, by mutual agreement, remove Accounts from the operation of this
Agreement. RPA Seller agrees to provide to Purchaser such information,
certificates, financing statement, opinions and other materials as are
reasonably necessary to enable Purchaser to satisfy its obligations under
SECTION 2.9 of the Pooling and Servicing Agreement and SECTION 2.7 of the
Transfer and Servicing Agreement with respect to the removal of Accounts.
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1 PURCHASE PRICE.
(a) The "PURCHASE PRICE" for the Receivables (including Receivables
in Additional Accounts) to be conveyed to Purchaser under this Agreement that
come into existence on or after the Effective Date shall be payable on each
Business Day on which such Receivables are conveyed by RPA Seller to Purchaser
in an amount equal to 100% of the Principal Receivables so conveyed, adjusted
from time to time with respect to Principal Receivables originated hereafter to
reflect such factors as RPA Seller and Purchaser mutually agree will result in a
Purchase Price determined to approximate the fair market value of such Principal
Receivables. If and to the extent that Purchaser shall not have funds available
to pay RPA Seller the Purchase Price for the Receivables transferred on any day,
an amount equal to the portion of the Purchase Price for such Receivables for
which Purchaser shall not have funds shall be deemed to be a borrowing by
Purchaser from RPA Seller under the Subordinated Note in the
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amount of such deficiency; PROVIDED that no borrowing may be made under the
Subordinated Note if, after giving effect to such borrowing, Purchaser Tangible
Equity would be less than Required Purchaser Tangible Equity; and PROVIDED,
FURTHER, that RPA Seller may, in its discretion, contribute Receivables on any
Business Day and the Purchase Price of such Receivables shall be deemed to be a
capital contribution from RPA Seller to Purchaser.
(b) RPA Seller is hereby authorized by Purchaser to endorse on the
schedule attached to the Subordinated Note (or a continuation of such schedule
attached thereto and made a part thereof) an appropriate notation evidencing the
date and amount of each borrowing thereunder, as well as the date and amount of
each payment made with respect thereto; PROVIDED that the failure of any Person
to make such a notation shall not affect any obligations of Purchaser
thereunder.
(c) The terms and conditions of the Subordinated Note and all
borrowings thereunder shall be as follows:
(i) All amounts paid by Purchaser with respect to the
Subordinated Note shall be allocated first to the repayment of accrued
interest until all such interest is paid, and then to the outstanding
principal amount of the Subordinated Note.
(ii) The outstanding principal amount of the Subordinated Note
shall bear interest at a fixed rate per annum of 10% from the
Effective Date, calculated based on a 360-day year consistently of
twelve thirty-day months, or such other rate as shall be agreed upon
by RPA Seller and Purchaser from time to time (such rate as in effect
from time to time, the "SUBORDINATED NOTE RATE"). Interest on the
Subordinated Note shall be payable on [ ], 2001 and the 15th day of
each calendar month thereafter, or if the 15th is not a Business Day,
the next succeeding Business Day (each such date, an "INTEREST PAYMENT
DATE"). If on any Interest Payment Date, the amount of funds available
to pay interest on the Subordinated Note is insufficient to pay any
amount due under the Subordinated Note, then interest shall be payable
only to the extent funds are available thereof. All interest in the
Subordinated Note that is not paid when due pursuant to this paragraph
shall be payable on the next Interest Payment Date on which funds are
available therefore and all such unpaid interest shall accrue interest
at the Subordinated Note Rate until paid in full.
(iii) Purchaser may at its option, prepay the Subordinated Note
at any time and from time to time; provided that in no event shall RPA
Seller or any holder of the Subordinated Note have any right to demand
any payment of principal under the Subordinated Note prior to the date
that is one year and one day after the latest occurring Series
Termination Date for any Series of Investor Certificates or any Series
of Notes (the "SUBORDINATED NOTE MATURITY DATE").
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Section 3.2 ADJUSTMENTS TO PURCHASE PRICE. During any Monthly Period,
if (a) Servicer adjusts downward the amount of any Receivable because of a
rebate, refund, unauthorized charge or billing error to an accountholder, or
because such Receivable was created in respect of merchandise which was refused
or returned by an accountholder, or if Servicer otherwise adjusts downward the
amount of any Receivable without receiving Collections therefor or charging off
such amount as uncollectible or (b) any Principal Receivable is discovered by
Servicer as having been created through a fraudulent or counterfeit charge, then
the Purchase Price shall be reduced as provided below (a "CREDIT ADJUSTMENT").
The amount of such Credit Adjustment with respect to any Receivable adjusted
downward as described in CLAUSE (a) of the preceding sentence, shall be equal to
the amount of such adjustment and, with respect to any Receivable described in
clause (b) of the preceding sentence, shall equal either (i) the Purchase Price
paid with respect to such Receivable (including any portion thereof deemed to be
a borrowing under the Subordinated Note or deemed to be a capital contribution
from RPA Seller to Purchaser) as determined on the date on which such Receivable
was purchased computed in accordance with SECTION 3.1 or (ii) in the case of any
Receivable that was deemed to have been sold to Purchaser by RPA Seller prior to
the Effective Date, the principal balance of such Receivable. The amount of any
Credit Adjustment may be offset against any amounts due from Purchaser to RPA
Seller on such day; provided that, subject to the following proviso, RPA Seller
shall not be obligated to make any cash payment with respect to a Credit
Adjustment until the Distribution Date following the Monthly Period in which
such Credit Adjustment arose in accordance with SECTION 3.3; provided, further,
that, if, as a result of the occurrence of any event giving rise to a Credit
Adjustment, Purchaser is required to deposit funds into the Excess Funding
Account pursuant to SECTION 3.9 of the Pooling and Servicing Agreement or
SECTION 3.9 of the Transfer and Servicing Agreement, RPA Seller shall pay
Purchaser the amount by which the Purchase Price would be reduced in immediately
available funds on or before the date Purchaser is required to make such deposit
to the Excess Funding Account. To secure its obligations to make the payments
required by the preceding sentence, RPA Seller hereby grants to Purchaser and
its assigns, a security interest in (i) its rights to receive payments from any
Merchant under any Credit Card Processing Agreement on account of rebates,
refunds, unauthorized charges, refused or returned merchandise or any other
event or circumstance that causes Servicer to adjust downward the amount of any
Receivable without receiving Collections therefor or charging off such amount as
uncollectible ("MERCHANT ADJUSTMENT PAYMENTS"), (ii) any collateral security
granted to, or guaranty for the benefit of, RPA Seller with respect to Merchant
Adjustment Payments, (iii) all amounts received from any Merchant on account of
Merchant Adjustment Payments and (iv) all proceeds of such rights and such
amounts.
Section 3.3 SETTLEMENT AND ONGOING PAYMENT OF PURCHASE PRICE. On each
Distribution Date, RPA Seller shall deliver a settlement statement (the
"SETTLEMENT STATEMENT"), showing the aggregate Purchase Price of Receivables
conveyed to Purchaser during the prior Monthly Period (or, with respect to the
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first Distribution Date following the Effective Date, the period from and
including the Effective Date through the last day of the calendar month
preceding such Distribution Date), and the amount which remains unpaid as Credit
Adjustments made with respect to such period pursuant to SECTION 3.2 or any
adjustment to the Purchase Price of Receivables with respect to such period
pursuant to SECTION 6.1, each of which shall reduce the aggregate Purchase Price
payable by Purchaser for such period. Any balance due from Purchaser to RPA
Seller shall be paid in accordance with SECTION 3.1. Any balance due from RPA
Seller to Purchaser shall be paid in immediately available funds.
Section 3.4 NETTING ARRANGEMENTS. Except as otherwise required by
SECTION 4.3 of the Pooling and Servicing Agreement or SECTION 8.4(a) of the
Indenture (with respect to In-Store Payments) and the terms of any Supplement,
RPA Seller may permit or require payments owed by any Merchant with respect to
In-Store Payments and Merchant Adjustment Payments to be netted against amounts
owed by RPA Seller to that Merchant. RPA Seller shall pay to Purchaser (or, so
long as RPA Seller is Servicer, deposit directly into the Collection Account) on
each Business Day an amount equal to the aggregate amount of In-Store Payments
netted against amounts owed by RPA Seller to the various Merchants on that
Business Day. If, however, Purchaser is required under any Supplement to require
RPA Seller to discontinue such netting as to any Merchant, then RPA Seller shall
not permit In-Store Payments or Merchant Adjustment Payments to be netted
against amounts payable by RPA Seller to that Merchant, but instead RPA Seller
shall cause that Merchant to transfer to RPA Seller, not later than the second
Business Day following receipt by such Merchant of any In-Store Payments or any
event obligating that Merchant to make a Merchant Adjustment Payment, an amount
equal to the sum of such In-Store Payments and Merchant Adjustment Payments.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 REPRESENTATIONS AND WARRANTIES OF RPA SELLER RELATING TO
RPA SELLER.
(a) REPRESENTATIONS AND WARRANTIES. RPA Seller hereby represents and
warrants to, and agrees with, Purchaser as of the Effective Date and on each
Closing Date, that:
(i) ORGANIZATION AND GOOD STANDING. RPA Seller is a national
banking association validly existing in good standing under the laws
of the United States, and has full corporate power, authority and
legal right to own its properties and conduct its business as
presently owned and conducted, and to execute, deliver and perform its
obligations under this Agreement.
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(ii) DUE QUALIFICATION. RPA Seller is duly qualified to do
business and is in good standing (or is exempt from such
requirements), and has obtained all necessary licenses and approvals
in each jurisdiction in which failure to so qualify or to obtain such
licenses and approvals would render any Credit Card Agreement relating
to an Account owned by RPA Seller or any Receivable unenforceable by
RPA Seller, Purchaser, the Servicer or Receivables Trust Trustee or
would have a material adverse effect on the interests of Purchaser or
the Holders.
(iii) DUE AUTHORIZATION. The execution, delivery and performance
of this Agreement and any other document or instrument delivered
pursuant hereto (such other documents or instruments, collectively,
the "CONVEYANCE PAPERS") and the consummation of the transactions
provided for in this Agreement or any other Conveyance Papers have
been duly authorized by all necessary corporate action on the part of
RPA Seller.
(iv) NO CONFLICT. The execution and delivery of this Agreement
and the Conveyance Papers by RPA Seller, the performance of the
transactions contemplated by this Agreement and the Conveyance Papers,
and the fulfillment of the terms of this Agreement and the Conveyance
Papers applicable to RPA Seller will not conflict with, result in any
breach of any of the material terms and provisions of, or constitute
(with or without notice or lapse of time or both) a material default
under, any indenture, contract, agreement, mortgage, deed of trust, or
other instrument to which RPA Seller is a party or by which it or any
of its properties are bound.
(v) NO VIOLATION. The execution, delivery and performance of
this Agreement and the Conveyance Papers by RPA Seller and the
fulfillment by RPA Seller of the terms hereof and thereof will not
conflict with or violate any Requirements of Law applicable to RPA
Seller.
(vi) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the best knowledge of RPA Seller, threatened against
RPA Seller, before any court, regulatory body, administrative agency
or other tribunal or governmental instrumentality (i) asserting the
invalidity of this Agreement or any of the Conveyance Papers, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any of the Conveyance Papers, (iii)
seeking any determination or ruling that, in the reasonable judgment
of RPA Seller, would materially and adversely affect the performance
by RPA Seller of its obligations under this Agreement or any of the
Conveyance Papers, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Agreement or any of the Conveyance Papers or (v) seeking to affect
adversely the income tax
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attributes of the Certificate Trust or the Note Trust under Federal or
applicable state income or franchise tax systems.
(vii) ALL CONSENTS REQUIRED. All approvals, authorizations,
consents, orders or other actions of any Person or any governmental
body or official required in connection with the execution and
delivery by RPA Seller of this Agreement or any of the Conveyance
Papers and the performance of the transactions contemplated by this
Agreement or any of the Conveyance Papers by RPA Seller have been
obtained.
(viii) INSOLVENCY. RPA Seller is not insolvent and no Insolvency
Event with respect to RPA Seller has occurred, and the transfer of the
Existing Assets, the Receivables and Related Assets by RPA Seller to
Purchaser contemplated hereby has not been made in contemplation of
such insolvency or Insolvency Event.
(b) NOTICE OF BREACH; RELIANCE. The representations and warranties
of RPA Seller set forth in this SECTION 4.1 shall survive the transfer and
assignment by RPA Seller of the Receivables to Purchaser and the transfer and
assignment by Purchaser of the Receivables to the Receivables Trust. Upon
discovery by RPA Seller or Purchaser of a breach of any of the representations
and warranties by RPA Seller set forth in this SECTION 4.1, the party
discovering such breach shall give prompt written notice to the other and to
each Enhancement Provider, if any, entitled thereto pursuant to the relevant
Supplement. RPA Seller hereby acknowledges that Purchaser intends to rely on the
representations hereunder in connection with representations made by Purchaser
to secured parties, assignees or subsequent transferees, including transfers
made by Purchaser to the Certificate Trust pursuant to the Pooling and Servicing
Agreement and to the Note Trust pursuant to the Transfer and Servicing
Agreement. RPA Seller agrees to cooperate with Purchaser, Servicer and
Receivables Trust Trustee in attempting to cure any such breach.
Section 4.2 REPRESENTATIONS AND WARRANTIES OF RPA SELLER RELATING TO
THE AGREEMENT AND THE RECEIVABLES.
(a) REPRESENTATIONS AND WARRANTIES. RPA Seller hereby represents and
warrants to Purchaser as of the Effective Date and, with respect to Additional
Accounts, as of the related Addition Date that:
(i) this Agreement and, in the case of Supplemental Accounts,
the related Supplemental Conveyance, when executed and delivered on
behalf of RPA Seller, each constitutes a legal, valid and binding
obligation of RPA Seller, enforceable against RPA Seller in accordance
with its terms, except as such enforceability may be limited by
applicable Debtor Relief Laws now or hereafter in effect and by
general principles of equity (whether considered in a suit at law or
in equity);
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(ii) as of the Automatic Addition Termination Date or an
Automatic Addition Suspension Date, as of each subsequent Addition
Date with respect to Supplemental Accounts, and as of the applicable
Removal Date with respect to Removed Accounts, the Account Schedule
delivered pursuant to this Agreement, as supplemented to such date, is
an accurate and complete listing in all material respects of all the
Accounts as of such Automatic Addition Termination Date or Automatic
Addition Suspension Date, the related Addition Cut Off Date or such
Removal Date, as the case may be, and the information contained
therein with respect to the identity of such Accounts and the
Receivables existing thereunder is true and correct in all material
respects as of such specified date;
(iii) RPA Seller is the legal and beneficial owner of all right,
title and interest in each Receivable and RPA Seller has the full
right, power and authority to transfer the Receivables pursuant to
this Agreement, and each Receivable conveyed to Purchaser by RPA
Seller has been conveyed to Purchaser free and clear of any Lien of
any Person claiming through or under RPA Seller or any of its
Affiliates (other than Liens permitted under SECTION 5.1(b), SECTION
2.7(b) of the Pooling and Servicing Agreement or SECTION 2.5(b) of the
Transfer and Servicing Agreement) and in compliance, in all material
respects, with all Requirements of Law applicable to RPA Seller;
(iv) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required
to be obtained, effected or given by RPA Seller in connection with the
conveyance of such Receivable to Purchaser have been duly obtained,
effected or given and are in full force and effect;
(v) this Agreement or, in the case of Supplemental Accounts,
the related Supplemental Conveyance, upon execution and delivery on
behalf of RPA Seller, constitutes a valid transfer and assignment to
Purchaser of all right, title and interest of RPA Seller in and to the
Existing Assets, the Receivables and the other Related Assets conveyed
to Purchaser by RPA Seller;
(vi) except as otherwise expressly provided in this Agreement,
the Pooling and Servicing Agreement or any Supplement thereto, the
Transfer and Servicing Agreement, the Indenture or any Indenture
Supplement neither RPA Seller nor any Person claiming through or under
RPA Seller has any claim to or interest in the Collection Account, the
Excess Funding Account, any Series Account or any Enhancement;
(vii) with respect to each Automatic Additional Account, on the
date of its creation or the date it otherwise becomes an Automatic
Additional Account, and with respect to each Supplemental Account, on
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the related Addition Cut Off Date each such Account is classified as
an Eligible Account;
(viii) on the date of creation of each Automatic Additional
Account or on the date the related account otherwise becomes an
Automatic Additional Account, each Receivable contained in such
Automatic Additional Account is an Eligible Receivable and, on the
applicable Additional Cut Off Date, each Receivable contained in any
related Supplemental Account is an Eligible Receivable; and
(ix) as of the date of the creation of any new Receivable, such
Receivable is an Eligible Receivable.
(b) PERFECTION REPRESENTATIONS AND WARRANTIES. Debtor hereby makes
the Perfection Representations and Warranties to the Secured Party. For purposes
of this SECTION 4.2(b): Debtor shall mean RPA Seller, Secured Party shall mean
Transferor, and Specified Agreement shall mean this Receivables Purchase
Agreement. The rights and remedies with respect to any breach of the Perfection
Representations and Warranties made under this SECTION 4.2(b) shall be
continuing and shall survive any termination of the Specified Agreement. Secured
Party shall not waive a breach of any Perfection Representation and Warranty. In
order to evidence the interests of Debtor and Secured Party under the Specified
Agreement, the Debtor and Servicer shall, from time to time take such action,
and execute and deliver such instruments (including, without limitation, such
actions or filings as are requested by the Secured Party and financing
statements under the UCC as enacted and then in effect in any other jurisdiction
in which the Debtor is organized, has its principal place of business or
maintains any books, records, files or other information concerning the
Receivables) in order to maintain and perfect, as a first priority interest, the
Secured Party's security interest in the Receivables. The Debtor hereby
authorizes Servicer to file financing statements under the UCC without the
Debtor's signature where allowed by applicable law.
(c) NOTICE OF BREACH; RELIANCE. The representations and warranties of
RPA Seller set forth in this SECTION 4.2 shall survive the transfer and
assignment by RPA Seller of the Receivables to Purchaser and the transfer and
assignment by Purchaser of the Receivables to the Receivables Trust. Upon
discovery by RPA Seller or Purchaser of a breach of any of the representations
and warranties by RPA Seller set forth in this SECTION 4.2, the party
discovering such breach shall give prompt written notice to the other and to
each Enhancement Provider, if any, entitled thereto pursuant to the relevant
Supplement. RPA Seller hereby acknowledges that Purchaser intends to rely on the
representations hereunder in connection with representations made by Purchaser
to secured parties, assignees or subsequent transferees, including transfers
made by Purchaser to the Certificate Trust pursuant to the Pooling and Servicing
Agreement and to the Note Trust pursuant to the Transfer and Servicing
Agreement. RPA Seller agrees to
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cooperate with Purchaser, Servicer and Receivables Trust Trustee in attempting
to cure any such breach.
Section 4.3 REPRESENTATIONS AND WARRANTIES OF PURCHASER.
(a) REPRESENTATIONS AND WARRANTIES. As of the Effective Date and each
Closing Date, Purchaser hereby represents and warrants to, and agrees with, RPA
Seller that:
(i) ORGANIZATION AND GOOD STANDING. Purchaser is a limited
liability company validly existing in good standing under the laws of
the State of Delaware and has full power and authority to own its
properties and conduct its business as presently owned and conducted
and to execute, deliver and perform its obligations under this
Agreement and the Conveyance Papers.
(ii) DUE AUTHORIZATION. The execution and delivery of this
Agreement and the Conveyance Papers and the consummation of the
transactions provided for in this Agreement and the Conveyance Papers
have been duly authorized by Purchaser by all necessary limited
liability company action on the part of Purchaser.
(iii) NO CONFLICT. The execution and delivery of this Agreement
and the Conveyance Papers, the performance of the transactions
contemplated by this Agreement and the Conveyance Papers, and the
fulfillment of the terms hereof and thereof, will not conflict with,
result in any breach of any of the material terms and provisions of,
or constitute (with or without notice or lapse of time or both) a
material default under, any indenture, contract, agreement, mortgage,
deed of trust or other instrument to which Purchaser is a party or by
which it or any of its properties are bound.
(iv) NO VIOLATION. The execution, delivery and performance of
this Agreement and the Conveyance Papers by Purchaser and the
fulfillment by Purchaser of the terms contemplated herein and therein
will not conflict with or violate any Requirements of Law applicable
to Purchaser.
(v) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the best knowledge of Purchaser, threatened against
Purchaser, before any court, regulatory body, administrative agency,
or other tribunal or governmental instrumentality (i) asserting the
invalidity of this Agreement or any of the Conveyance Papers, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any of the Conveyance Papers, (iii)
seeking any determination or ruling that, in the reasonable judgment
of Purchaser, would materially and adversely affect the performance by
Purchaser of its
15
obligations under this Agreement or any of the Conveyance Papers or
(iv) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement or
any of the Conveyance Papers.
(vi) ALL CONSENTS REQUIRED. All approvals, authorizations,
consents, orders or other actions of any Person or of any governmental
body or official required in connection with the execution and
delivery by Purchaser of this Agreement and Conveyance Papers, the
performance by Purchaser of the transactions contemplated by this
Agreement and the Conveyance Papers and the fulfillment by Purchaser
of the terms hereof and thereof, have been obtained.
(b) NOTICE OF BREACH. The representations and warranties of RPA
Seller set forth in this SECTION 4.3 shall survive the transfer and assignment
by RPA Seller of the Receivables to Purchaser. Upon discovery by RPA Seller or
Purchaser of a breach of any of the representations and warranties by Purchaser
set forth in this SECTION 4.3, the party discovering such breach shall give
prompt written notice to Receivables Trust Trustee, the Owner Trustee, and to
each Enhancement Provider, if any, entitled thereto pursuant to the relevant
Supplement. Purchaser agrees to cooperate with RPA Seller, Servicer and
Receivables Trust Trustee in attempting to cure any such breach. For purposes of
the representations and warranties set forth in this SECTION 4.3, each reference
to a Supplement shall be deemed to refer only to those Supplements in effect as
of the relevant Closing Date
ARTICLE V
COVENANTS
Section 5.1 RPA SELLER COVENANTS. RPA Seller hereby covenants and
agrees with Purchaser as follows:
(a) RECEIVABLES NOT TO BE EVIDENCED BY PROMISSORY NOTES. Except in
connection with the enforcement or collection of an Account, RPA Seller will
take no action to cause any Receivable transferred by it pursuant hereto to be
evidenced by any "instrument," and, if any such Receivable is so evidenced
(whether or not in connection with the enforcement or collection of an Account),
it shall be deemed to be an Ineligible Receivable in accordance with SECTION
6.1.
(b) SECURITY INTERESTS. Except for the conveyances hereunder or as
otherwise provided herein, RPA Seller will not sell, pledge, assign or transfer
to any other Person, or grant, create, incur, assume or suffer to exist, any
Lien on any Receivable, whether now existing or hereafter created, or any
interest therein; and RPA Seller will immediately notify Purchaser of the
existence of any Lien on any Receivable of which RPA Seller has knowledge; and
RPA Seller shall defend the right, title and interest of Purchaser in, to and
under the Receivables, whether
16
now existing or hereafter created, against all claims of third parties claiming
through or under RPA Seller; PROVIDED that nothing in this SECTION 5.1(b) shall
prevent or be deemed to prohibit RPA Seller from suffering to exist upon any of
the Receivables any Lien for taxes if such taxes shall not at the time be due
and payable or if RPA Seller shall currently be contesting the validity thereof
in good faith by appropriate proceedings and shall have set aside on its books
adequate reserves with respect thereto.
(c) DELIVERY OF COLLECTIONS OR RECOVERIES. If RPA Seller receives
Collections or Recoveries, RPA Seller agrees to pay to Purchaser (or the
Servicer if Purchaser so directs) all such Collections and Recoveries as soon as
practicable after receipt thereof but in no event later than two Business Days
after the Date of Processing by RPA Seller; PROVIDED that for so long as RPA
Seller is acting as Servicer pursuant to the applicable Transfer Agreement, RPA
Seller shall apply Collections and Recoveries received by it in accordance with
the applicable Transfer Agreement.
(d) NOTICE OF LIENS. RPA Seller shall notify Purchaser promptly after
becoming aware of any Lien on any Receivable other than the conveyances
hereunder or under the Pooling and Servicing Agreement, the Transfer and
Servicing Agreement or the Indenture or any Lien permitted under SECTION 5.1(b)
hereof, SECTION 2.7(b) of the Pooling and Servicing Agreement or SECTION 2.5(b)
of the Transfer and Servicing Agreement.
(e) DOCUMENTATION OF TRANSFER. RPA Seller shall cause to be executed,
filed and delivered to Trustee (with copies to Purchaser) any documents
(including financing statements and/or continuation statements under the UCC)
that would be necessary to perfect and maintain the security interest in and to
the Existing Assets, the Receivables and the Related Assets contemplated by this
Agreement.
(f) APPROVAL. The execution, delivery and performance of RPA Seller's
obligations under this Agreement, and the transactions contemplated hereby, have
been duly approved by RPA Seller's Board of Directors.
(g) SALE. RPA Seller agrees to treat the conveyance of the
Receivables to Purchaser hereunder as a sale for all purposes (including all tax
and financial accounting purposes).
(h) CONTINUOUS PERFECTION. RPA Seller shall not change its name,
identity or structure in any manner that might cause any financing or
continuation statement filed pursuant to this Agreement to be misleading unless
RPA Seller shall have delivered to Purchaser at least 30 days prior written
notice thereof and, no later than 30 days after making such change, shall have
taken all action necessary or advisable to amend such financing statement or
continuation statement so that it is not misleading. RPA Seller shall not change
the jurisdiction under whose laws it is organized, its chief executive office or
change the location
17
of its principal records concerning the Receivables or the Collections unless it
has delivered to Purchaser at least 30 days prior written notice of its
intention to do so and has taken such action as is necessary or advisable to
cause the interest of Purchaser in the Receivables and other Related Assets to
continue to be perfected with the priority required by this Agreement.
(i) CREDIT CARD AGREEMENTS AND GUIDELINES. RPA Seller shall comply
with and perform its obligations under the Credit Card Agreements relating to
the Accounts and the Credit Card Guidelines except insofar as any failure to
comply or perform would not materially or adversely affect the rights of the
Receivables Trust, the Issuer, the Investor Holders or the Noteholders. RPA
Seller may change the terms and provisions of the Credit Card Agreements or the
Credit Card Guidelines in any respect (including the reduction of the required
minimum monthly payment, the calculation of the amount, or the timing, of charge
offs and Periodic Finance Charges and other fees assessed thereon), but only if
such change is made applicable to any comparable segment of the revolving credit
card accounts owned and serviced by RPA Seller which have characteristics the
same as, or substantially similar to, the Accounts that are the subject of such
change, except as otherwise restricted by an endorsement, sponsorship or other
agreement between RPA Seller and an unrelated third party or by the terms of the
Credit Card Agreements. In addition, except as otherwise required by any
Requirement of Law, or as is deemed by RPA Seller to be necessary in order for
RPA Seller to maintain its credit card business, based upon a good faith
assessment by RPA Seller, in its sole discretion, of the nature of the
competition in the credit card business, RPA Seller shall not at any time reduce
the Periodic Finance Charges assessed on any Receivable or other fees on any
Account if, as a result of such reduction, Transferor's reasonable expectation
of the Portfolio Yield (as defined in any Supplement) as of such date would be
less than the then Base Rate (as defined in such Supplement).
(j) INSURED STATUS UNDER THE FDIA. RPA Seller shall preserve its
status as an insured bank under the FDIA by insuring its deposits with the FDIC
in accordance with the provisions of the FDIA and FDIC regulations.
(k) SEPARATE CORPORATE EXISTENCE. The hereby acknowledges that the
Certificate Trust Trustee, the Indenture Trustee, the Holders and the Issuer
are, and will be, entering into the transactions contemplated by the Transaction
Documents in reliance upon Purchaser's identity as a legal entity separate from
RPA Seller, the Servicer and any other Person. Therefore, RPA Seller shall take
all reasonable steps to maintain its existence as a corporation separate and
apart from Purchaser and to make it apparent to third parties that the is an
entity with assets and liabilities distinct from those of Purchaser and that
Purchaser is not a division of RPA Seller.
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ARTICLE VI
REPURCHASE OBLIGATION
Section 6.1 REASSIGNMENT OF INELIGIBLE RECEIVABLES. If (a) any
representation or warranty under SECTION 4.2(a)(ii), (iii), (iv), (vii), (viii)
or (ix) is not true and correct in any material respect as of the date specified
therein with respect to any Receivable or any related Account or (b) any
representation or warranty made by RPA Seller pursuant to SECTION 2.4(a)(ii),
(iii), (iv), (vii), (viii) or (ix) of the Existing PSA is not true and correct
in any material respect as of the date specified therein with respect to any
Receivable transferred to the Certificate Trust prior to the Effective Date or
any related Account and, in either case, as a result thereof Purchaser is
required to accept a reassignment of Ineligible Receivables pursuant to SECTION
2.5(b) of the Pooling and Servicing Agreement or SECTION 2.4(d) of the Transfer
and Servicing Agreement, RPA Seller shall pay to Purchaser an amount in cash
equal to either (i) the Purchase Price paid for any such Ineligible Receivable
by Purchaser to RPA Seller (including any portion thereof deemed to be a
borrowing under the Subordinated Note or deemed to be a capital contribution
from RPA Seller to Purchaser) or (ii) in the case of any Receivable that was
deemed to have been sold to Purchaser by RPA Seller prior to the Effective Date,
the principal balance of such Receivable. Such amount may be offset against any
amounts due from Purchaser to RPA Seller with respect to the Purchase Price for
Receivables sold to Purchaser on such day; PROVIDED that RPA Seller shall not be
obligated to make any such cash payment until the Distribution Date following a
Monthly Period with respect to amounts owing for such Monthly Period in
accordance with SECTION 3.3. The obligation of RPA Seller set forth in this
Section shall constitute the sole remedy respecting any breach of the
representations and warranties set forth in the above-referenced Sections or
failure to meet the conditions set forth in the definition in the Pooling and
Servicing Agreement or the Indenture of Eligible Receivable with respect to such
Receivable available to Purchaser.
Section 6.2 REASSIGNMENT OF HOLDERS' INTEREST IN TRUST PORTFOLIO. If
(a) any representation or warranty set forth in SECTION 4.1(a)(i), (ii) or (iii)
or SECTION 4.2(a)(i), (v) or (vi) is not true and correct in any material
respect or (b) any representation or warranty made by RPA Seller pursuant to
SECTION 2.3(a), (b) or (c) of the Existing PSA or SECTION 2.4(a)(i), (v) or (vi)
of the Existing PSA with respect to any Receivable transferred to the
Certificate Trust prior to the Effective Date or any related Account is not true
and correct in any material respect and, in either case, as a result thereof
Purchaser is required to accept a reassignment of the Receivables transferred to
the Receivables Trust by Purchaser pursuant to SECTION 2.6 of the Pooling and
Servicing Agreement or SECTION 2.4(f) of the Transfer and Servicing Agreement,
RPA Seller shall be obligated to accept a reassignment of Purchaser's interest
in such Receivables on the terms set forth below.
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RPA Seller shall pay to Purchaser by depositing in the Collection
Account in same-day funds, not later than 10:00 A.M. New York City time, on the
Transfer Date following the Monthly Period in which such reassignment obligation
arises, in payment for such reassignment, an amount equal to the Portfolio
Reassignment Price. The obligation of RPA Seller set forth in this Section shall
constitute the sole remedy respecting any breach of the representations and
warranties set forth in the above-referenced Sections available to Purchaser.
Section 6.3 CONVEYANCE OF REASSIGNED RECEIVABLES. Upon the request of
RPA Seller, Purchaser shall execute and deliver to RPA Seller a reconveyance
substantially in such form and upon such terms as shall be acceptable to RPA
Seller, pursuant to which Purchaser evidences the conveyance to RPA Seller of
all of Purchaser's right, title, and interest in any Receivables reconveyed to
RPA Seller pursuant to SECTIONS 6.1 and 6.2. Purchaser shall (and shall cause
Receivables Trust Trustee to) execute such other documents or instruments of
conveyance or take such other actions as RPA Seller may reasonably require to
effect any repurchase of Receivables pursuant to this ARTICLE VI.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 CONDITIONS TO PURCHASE. The obligations of Purchaser to
make its initial purchase of Receivables hereunder shall be subject to RPA
Seller delivering to Purchaser on or before the Effective Date such document,
certificates and resolutions that Purchaser is required to deliver to the
Certificate Trust Trustee, any Enhancement Provider or any Rating Agency in
connection with the amendment and restatement of the Pooling and Servicing
Agreement on the date of this Agreement.
Section 7.2 CONDITIONS TO PURCHASER'S OBLIGATIONS REGARDING ADDITIONAL
RECEIVABLES. The obligations of Purchaser to purchase any Receivables created on
or after the Effective Date shall be subject to the satisfaction of the
following conditions:
(a) All representations and warranties of RPA Seller contained in
this Agreement shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on the date
of such purchase;
(b) All information (concerning any Account to which such Receivables
relate) provided to Purchaser shall be true and correct in all material respects
as of the date of such purchase; and
20
(c) RPA Seller shall have recorded and filed, at its expense, any
UCC-1 or other financing statement as required as of the date of such purchase
pursuant to SECTION 2.1(b).
Section 7.3 CONDITIONS PRECEDENT TO OBLIGATIONS OF RPA SELLER. The
obligations of RPA Seller to sell on any date Receivables shall be subject to
the satisfaction of the following conditions:
(a) All representations and warranties of Purchaser contained in
this Agreement shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on the date
of such sale; and
(b) Payment or provision for payment of the Purchase Price in
accordance with the provision of SECTIONS 3.1, 3.2 and 3.3 hereof shall have
been made.
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.1 TERM. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue until the later of the
termination of the Certificate Trust as provided in ARTICLE XII of the Pooling
and Servicing Agreement or the termination of the Note Trust as provided in
SECTION 8.1 of the Trust Agreement.
Section 8.2 PURCHASE TERMINATION. If an Insolvency Event shall occur
with respect to RPA Seller, then RPA Seller shall immediately cease to transfer
Principal Receivables to Purchaser and shall promptly give notice to Purchaser
and Receivables Trust Trustee of such Insolvency Event. Notwithstanding any
cessation of the transfer to Purchaser of additional Principal Receivables,
Principal Receivables transferred to Purchaser prior to the occurrence of such
Insolvency Event and Collections in respect of such Principal Receivables and
Finance Charge Receivables whenever created, accrued in respect of such
Principal Receivables, shall continue to be property of Purchaser transferable
by Purchaser to the Receivables Trust pursuant to the Pooling and Servicing
Agreement or the Transfer and Servicing Agreement, as applicable.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 AMENDMENT. This Agreement and any Conveyance Papers and
the rights and obligations of the parties hereunder may not be changed orally,
but only by an instrument in writing signed by Purchaser and RPA Seller in
accordance with this SECTION 9.1. This Agreement and any Conveyance Papers may
be amended from time to time by Purchaser and RPA Seller (i) to cure any
21
ambiguity, (ii) to correct or supplement any provisions herein which may be
inconsistent with any other provisions herein or in any such other Conveyance
Papers, (iii) to add any other provisions with respect to matters or questions
arising under this Agreement or any Conveyance Papers that shall not be
inconsistent with the provisions of this Agreement or any Conveyance Papers,
(iv) to change or modify the Purchase Price, (v) to change, modify, delete or
add any other obligation of RPA Seller or Purchaser and (vi) to provide for the
transfer by RPA Seller or Purchaser of its interest in and to all or part of the
Accounts in accordance with the provisions of the Pooling and Servicing
Agreement or the Transfer and Servicing Agreement (if such transfer is for less
than all of the Accounts, the respective rights, duties and obligations of
Purchaser, RPA Seller and Servicer will be determined at the time of such
transfer); PROVIDED that no amendment pursuant to CLAUSE (v) of this SECTION 9.1
shall be effective unless RPA Seller and Purchaser have been notified in writing
that the Rating Agency Condition has been satisfied. Any reconveyance executed
in accordance with the provisions hereof shall not be considered to be an
amendment to this Agreement. A copy of any amendment to this Agreement shall be
sent to Trustee and each Rating Agency.
SECTION 9.2 GOVERNING LAW. THIS AGREEMENT AND THE CONVEYANCE PAPERS
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 9.3 NOTICES. All demands, notices, instructions, directions
and communications under this Agreement shall be in writing and shall be deemed
to have been duly given if personally delivered at, mailed by registered mail,
return receipt requested, or sent by facsimile transmission to (a) in the case
of Purchaser, to WFN Credit Company, LLC, [________], Attention: [________]
(facsimile no. [_________]), (b) in the case of RPA Seller, to World Financial
Network National Bank, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention:
[____________] (facsimile no. [___________]), (c) in the case of the Certificate
Trust Trustee or the Indenture Trustee, to BNY Midwest Trust Company,
[________], Attention of [_______] (facsimile no. [__________]) and (d) in the
case of the Rating Agency for a particular Series, the address, if any,
specified in the Supplement relating to such Series.
Section 9.4 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement or any Conveyance
Paper shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions, or terms shall be deemed severable from the remaining
covenants, agreements, provisions, and terms of this Agreement or any Conveyance
Paper and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of any Conveyance Paper.
22
Section 9.5 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, RPA SELLER. (a) RPA Seller shall not consolidate with or merge
into any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person unless:
(i) the Person formed by such consolidation or into which RPA
Seller is merged or the Person which acquires by conveyance or
transfer the properties and assets of RPA Seller substantially as an
entirety shall be, if RPA Seller is not the surviving entity, an
entity organized and existing under the laws of the United States of
America or any State or the District of Columbia, and, if RPA Seller
is not the surviving entity, such entity shall expressly assume, by an
agreement supplemental hereto, executed and delivered to Purchaser and
Receivables Trust Trustee, in form reasonably satisfactory to
Purchaser and Receivables Trust Trustee, the performance of every
covenant and obligation of RPA Seller hereunder;
(ii) RPA Seller has delivered to Purchaser and Receivables Trust
Trustee (A) an Officer's Certificate stating that such consolidation,
merger, conveyance or transfer and such supplemental agreement comply
with this Section and that all conditions precedent herein provided
for relating to such transaction have been complied with, and (B) an
Opinion of Counsel to the effect that such supplemental agreement is a
valid and binding obligation of such surviving entity enforceable
against such surviving entity in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect and except as
such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity);
(iii) RPA Seller shall have delivered to Purchaser and
Receivables Trust Trustee and each Rating Agency a Tax Opinion, dated
the date of such consolidation, merger, conveyance or transfer, with
respect thereto;
(iv) if Transferor is not the surviving entity, the surviving
entity shall file new UCC-1 financing statements with respect to the
interest of Purchaser in the Receivables.
(b) This SECTION 9.5 shall not be construed to prohibit or
in any way limit RPA Seller's ability to effectuate any consolidation or
merger pursuant to which RPA Seller would be surviving entity.
(c) RPA Seller shall notify each Rating Agency promptly after
any consolidation, merger, conveyance or transfer effected pursuant to this
SECTION 9.5;
23
(d) The obligations of RPA Seller hereunder shall not be
assignable nor shall any Person succeed to the obligations of RPA Seller
hereunder except in each case in accordance with (i) the provisions of the
foregoing paragraphs or (ii) conveyances, mergers, consolidations,
assumptions, sales or transfers to other entities (1) for which RPA Seller
delivers an Officer's Certificate to Purchaser and Receivables Trust Trustee
indicating that RPA Seller reasonably believes that such action will not
adversely affect in any material respect the interests of Purchaser or any
Noteholder, (2) which meet the requirements of CLAUSE (ii) of PARAGRAPH (a)
and (3) for which such purchaser, transferee, pledgee or entity shall
expressly assume, in an agreement supplemental hereto, executed and delivered
to Purchaser and Receivables Trust Trustee in writing in form satisfactory to
RPA Seller and Receivables Trust Trustee, the performance of every covenant
and obligation of RPA Seller thereby conveyed.
Section 9.6 ACKNOWLEDGEMENT AND AGREEMENT OF RPA SELLER. (a) By
execution below, RPA Seller expressly acknowledges and agrees that all of
Purchaser's right, title, and interest in, to, and under this Agreement,
including all of Purchaser's right, title, and interest in and to the
Receivables purchased pursuant to this Agreement, will be assigned by Purchaser
to the Certificate Trust Trustee for the benefit of the Holders and after the
Certificate Trust Termination Date will be assigned by Purchaser to the Note
Trust, and RPA Seller consents to such assignment. Additionally, RPA Seller
agrees for the benefit of the Certificate Trust Trustee, the Holders and the
Note Trust that any amounts payable by RPA Seller to Purchaser hereunder which
are to be paid by Purchaser to Receivables Trust Trustee for the benefit of the
Holders shall be paid by RPA Seller, on behalf of Purchaser, directly to
Receivables Trust Trustee. Any payment required to be made on or before a
specified date in same-day funds may be made on the prior business day in
next-day funds.
(b) To the extent that RPA Seller retains any interest in the
Existing Assets and the Receivables now existing and arising from time to time
in the Accounts and the Related Assets, RPA Seller hereby grants to (a) the
Certificate Trust Trustee for the benefit of the Investor Certificateholders and
(b) effective as of the Certificate Trust Termination Date, the Indenture
Trustee for benefit of the Noteholders, a security interest in all of RPA
Seller's right, title and interest, whether now owned or hereafter acquired, in,
to and under the Existing Assets and the Receivables now existing and arising
from time to time in the Accounts and the Related Assets, to secure the
performance of all of the obligations of RPA Seller hereunder, under the Pooling
and Servicing Agreement, the Indenture and the other Transaction Documents.
Section 9.7 FURTHER ASSURANCES. Each of Purchaser and RPA Seller
agrees to do and perform, from time to time, any and all acts and to execute any
and all further instruments required or reasonably requested by each other and
by their respective permitted successors and assigns in order to more fully to
effect the purposes of this Agreement and the Conveyance Papers, including the
execution of any UCC financing statements or continuation statements or
24
equivalent documents relating to the Receivables for filing under the provisions
of the UCC or other law of any applicable jurisdiction.
Section 9.8 NONPETITION COVENANT. Notwithstanding any prior
termination of this Agreement, RPA Seller shall not, at any time, institute
against, solicit or join or cooperate with or encourage any institution against
Purchaser of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceedings under any United States
federal or state bankruptcy or similar law.
Section 9.9 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of Purchaser or RPA Seller, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 9.10 COUNTERPARTS. This Agreement and all Conveyance Papers
may be executed in two or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
Section 9.11 BINDING THIRD-PARTY BENEFICIARIES. This Agreement and the
Conveyance Papers will inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns. The parties hereto
intend that the Certificate Trustee, the Note Trust and the Indenture Trustee
shall be third-party beneficiaries of this Agreement.
Section 9.12 MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement and the Conveyance Papers set forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement and the
Conveyance Papers.
Section 9.13 SCHEDULES AND EXHIBITS. The schedules and exhibits
attached hereto and referred to herein shall constitute a part of this Agreement
and are incorporated into this Agreement for all purposes.
25
IN WITNESS WHEREOF, Purchaser and RPA Seller have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
WFN CREDIT COMPANY, LLC,
as Purchaser
By: __________________________________
Name______________________________
Title_____________________________
WORLD FINANCIAL NETWORK
NATIONAL BANK, as RPA Seller
By: __________________________________
Name______________________________
Title_____________________________
26
Acknowledged and Accepted:
BNY MIDWEST TRUST COMPANY,
as Certificate Trust Trustee and
as Indenture Trustee
By: ________________________________
Name____________________________
Title___________________________
27
EXHIBIT A
FORM OF SUPPLEMENTAL CONVEYANCE
(As required by Section 2.2 of
the Receivables Purchase Agreement)
SUPPLEMENTAL CONVEYANCE NO. ______ dated as of ___________ 20_, by and
between WORLD FINANCIAL NETWORK NATIONAL BANK ("RPA SELLER") and WFN CREDIT
COMPANY, LLC, ("PURCHASER") pursuant to the Receivables Purchase Agreement
referred to below.
WITNESSETH:
WHEREAS, RPA Seller and Purchaser are parties to a Receivables
Purchase Agreement, dated as of [___________], 2001 (hereinafter as such
agreement may have been, or may from time to time be, amended, supplemented or
otherwise modified, the "RECEIVABLES PURCHASE AGREEMENT");
WHEREAS, pursuant to the Receivables Purchase Agreement, RPA Seller
wishes to designate Supplemental Accounts to be included as Accounts and RPA
Seller wishes to convey the Receivables of such Supplemental Accounts, whether
now existing or hereafter created, to Purchaser pursuant to the Receivables
Purchase Agreement (as each such term is defined in the Receivables Purchase
Agreement); and
WHEREAS, Purchaser is willing to accept such designation and
conveyance subject to the terms and conditions hereof.
NOW, THEREFORE, RPA Seller and Purchaser hereby agree as follows:
1. DEFINED TERMS. Each capitalized term used herein shall have the
meanings specified in the Receivables Purchase Agreement unless otherwise
defined herein.
"ADDITION DATE" shall mean, with respect to the Supplemental Accounts
designated hereby, _________ 200_.
2. DESIGNATION OF SUPPLEMENTAL ACCOUNTS. RPA Seller delivers
herewith an Account Schedule containing a true and complete schedule identifying
all such Supplemental Accounts and specifying for each such Account, as of the
Additional Cut Off Date, its account number, the aggregate amount outstanding in
such Account and the aggregate amount of Principal Receivables in such Account.
Such Account Schedule shall be, as of the date of this Supplemental Conveyance,
incorporated into and made part of this Supplemental Conveyance and is marked as
Schedule I to this Supplemental Conveyance.
A-1
3. CONVEYANCE OF RECEIVABLES.
(a) RPA Seller sells, transfers, assigns, sets over and
otherwise conveys to Purchaser (collectively, the "CONVEYANCE"), without
recourse, all of its right, title and interest in, to and under the Receivables
generated by such Supplemental Accounts, now existing and hereafter arising, all
Recoveries allocable to such Supplemental Accounts and all monies due or to
become due thereunder and all amounts received with respect thereto and all
proceeds thereof. The foregoing sale, transfer, assignment, set-over and
conveyance does not constitute and is not intended to result in a creation or an
assumption by Purchaser of any obligation of Servicer, RPA Seller or any other
Person in connection with the Accounts, the Receivables or under any agreement
or instrument relating thereto.
(b) In connection with the Conveyance and in accordance with
SECTION 2.1(b) of the Receivables Purchase Agreement, RPA Seller agrees to
record and file, at its own expense, one or more UCC financing statements (and
continuation statements with respect to such financing statements when
applicable) with respect to the Receivables, now existing and hereafter created,
for the sale of accounts meeting the requirements of applicable state law in
such manner and in such jurisdictions as may be necessary or advisable to
perfect or evidence the sale and assignment of the Receivables to Purchaser, and
to deliver a file-stamped copy of such financing statement or other evidence of
such filing to Purchaser.
(c) In connection with such sale, RPA Seller further agrees, at
its own expense, on or prior to the date of this Supplemental Conveyance, to
indicate in its appropriate computer files or other records that all Receivables
created in connection with the Supplemental Accounts designated hereby have been
conveyed to Purchaser pursuant to this Supplemental Conveyance.
4. ACCEPTANCE BY PURCHASER. Subject to the satisfaction of the
conditions set forth in SECTION 6 of this Supplemental Conveyance, Purchaser
hereby acknowledges its acceptance of all right, title and interest to the
property, now existing and hereafter arising, conveyed to Purchaser pursuant to
SECTION 3(a) of this Supplemental Conveyance, and declares that it shall
maintain such right, title and interest. Purchaser further acknowledges that,
prior to or simultaneously with the execution and delivery of this Supplemental
Conveyance, RPA Seller delivered to Purchaser the Account Schedule described in
SECTION 2 of this Supplemental Conveyance.
5. REPRESENTATIONS AND WARRANTIES OF RPA SELLER. RPA Seller hereby
represents and warrants to Purchaser as of the date of this Supplemental
Conveyance and as of the Addition Date that:
(a) LEGAL, VALID AND BINDING OBLIGATION. This Supplemental
Conveyance constitutes a legal, valid and binding obligation of RPA Seller
A-2
enforceable against RPA Seller in accordance with its terms, except as such
enforceability may be limited by applicable Debtor Relief Laws now or
hereinafter in effect and by general principles of equity (whether considered in
a suit at law or in equity);
(b) ELIGIBILITY OF ACCOUNTS. Each Supplemental Account
designated hereby is an Eligible Account;
(c) SELECTION PROCEDURES. No selection procedure was used by RPA
Seller which would result in a selection of Supplemental Accounts that would
have a result that would be materially less favorable to the interests of
Purchaser or the Investor Holders of any Series as of the Addition Date than a
random selection;
(d) INSOLVENCY. RPA Seller is not insolvent and, after giving
effect to the conveyance set forth in Section 3 of this Supplemental Conveyance,
will not be insolvent;
(e) SALE OF RECEIVABLES. This Supplemental Conveyance
constitutes a valid sale, transfer and assignment to Purchaser of all right,
title and interest of RPA Seller in the Receivables and other Related Assets now
existing or hereafter arising, all monies due or to become due and all amounts
received with respect thereto and the proceeds thereof, relating thereto;
(f) NO CONFLICT. The execution and delivery of this Supplemental
Conveyance, the performance of the transactions contemplated by this
Supplemental Conveyance and the fulfillment of the terms hereof, will not
conflict with, result in any breach of any of the material terms and provisions
of, or constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of trust or
other instrument to which RPA Seller is a party or by which it or its properties
are bound;
(g) NO VIOLATION. The execution and delivery of this
Supplemental Conveyance by RPA Seller, the performance of the transactions
contemplated by this Supplemental Conveyance and the fulfillment of the terms
hereof applicable to RPA Seller will not conflict with or violate any
Requirements of Law applicable to RPA Seller;
(h) NO PROCEEDINGS. There are no proceedings or investigations,
pending or, to the best knowledge of RPA Seller, threatened against RPA Seller
before any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality (i) asserting the invalidity of the Receivables
Purchase Agreement or this Supplemental Conveyance, (ii) seeking to prevent the
consummation of any of the transactions contemplated by the Receivables Purchase
Agreement or this Supplemental Conveyance, (iii) seeking any determination or
ruling that, in the reasonable judgment of RPA Seller, would
A-3
materially and adversely affect the performance of RPA Seller of its obligations
under the Receivables Purchase Agreement or this Supplemental Conveyance or (iv)
seeking any determination or ruling that would materially and adversely affect
the validity or enforceability of this Supplemental Conveyance; and
(i) ALL CONSENTS. All authorizations, consents, orders or
approvals of any court or other governmental authority required to be obtained
by RPA Seller in connection with the execution and delivery of this Supplemental
Conveyance by RPA Seller and the performance of the transactions contemplated by
this Supplemental Conveyance by RPA Seller, have been obtained.
6. CONDITIONS PRECEDENT. The acceptance of Purchaser set forth in
SECTION 4 of this Supplemental Conveyance is subject to the satisfaction, on or
prior to the Addition Date, of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties made by RPA Seller in SECTION 5 of this Supplemental Conveyance
shall be true and correct in all material respects as of the date of this
Supplemental Conveyance and as of the Addition Date;
(b) OFFICER'S CERTIFICATE. RPA Seller shall have delivered to
Purchaser an Officer's Certificate confirming that (i) the Supplemental Accounts
shall be Eligible Accounts or specify which, if any, of such Accounts are not
Eligible Accounts and (ii) (A) no selection procedure was used by RPA Seller or
Purchaser which would result in a selection of Supplemental Accounts that would
have a result that would be materially less favorable to the interests of the
Investor Holders of any Series as of the Addition Date than a random selection;
and (B) the list of Supplemental Accounts, as of the Additional Cut Off Date, is
a true and complete schedule identifying all such Supplemental Accounts and
specifies for each such Account, as of the Additional Cut Off Date, its account
number, the aggregate amount outstanding in such Account and the aggregate
amount of Principal Receivables in such Account; and
(c) ADDITIONAL INFORMATION. RPA Seller shall have delivered to
Purchaser such information as was reasonably requested by Purchaser to satisfy
itself as to the accuracy of the representation and warranty set forth in
Section 5(d) of this Supplemental Conveyance.
7. Ratification of the Receivables Purchase Agreement. The
Receivables Purchase Agreement is hereby ratified, and all references to the
"RECEIVABLES PURCHASE AGREEMENT," to "THIS AGREEMENT" and "HEREIN" shall be
deemed from and after the Addition Date to be a reference to the Receivables
Purchase Agreement as supplemented by this Supplemental Conveyance. Except as
expressly amended hereby, all the representations, warranties, terms, covenants
and conditions of the Receivables Purchase Agreement shall remain unamended and
shall continue to be, and shall, remain, in full force and effect in accordance
with its terms and except as expressly provided herein shall not constitute or
be
A-4
deemed to constitute a waiver of compliance with or consent to non-compliance
with any term or provision of the Receivables Purchase Agreement.
8. Counterparts. This Supplemental Conveyance may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument.
A-5
IN WITNESS WHEREOF, the undersigned have caused this Supplemental
Conveyance to be duly executed and delivered by their respective duly authorized
officers on the day and the year first above written.
WFN CREDIT COMPANY, LLC,
as Purchaser
By: ___________________
Name:
Title
WORLD FINANCIAL NETWORK
NATIONAL BANK, as RPA Seller
By: ___________________
Name:
Title
A-6
Schedule I to
Supplemental Conveyance
SUPPLEMENTAL ACCOUNTS
A-7
EXHIBIT B
SUBORDINATED NOTE
FOR VALUE RECEIVED, the undersigned, a Delaware limited liability
company ("PURCHASER"), hereby unconditionally promises to pay to the order of
WORLD FINANCIAL NETWORK NATIONAL BANK ("WFN") in lawful money of the United
States of America in immediately available funds on the Subordinated Note
Maturity Date, the aggregate unpaid amount (as shown in the records of RPA
Seller or, at the RPA Seller's option, on the schedule attached hereto and
any continuation thereof) of all borrowings made by Purchaser from RPA Seller
to fund the acquisition of Receivables in connection with the transactions
contemplated by the Receivables Purchase Agreement, dated as of [ ],
2001 (as amended and supplemented from time to time, the "RECEIVABLES
PURCHASE AGREEMENT"), among Purchaser and RPA Seller. Purchaser may at its
option prepay this Note in whole or in part at any time and from time to
time; provided that in no event shall the holder hereof have any right to
demand any payment of principal hereunder prior to the Subordinated Note
Maturity Date.
Capitalized terms used and not otherwise defined herein have the
meanings assigned to them in the Receivables Purchase Agreement.
The undersigned further agrees to pay interest from the date hereof on
the unpaid principal amount hereof from time to time at the rate and at the
times specified in the Receivables Purchase Agreement. Interest shall be payable
in arrears on each Interest Payment Date and upon final payment of the unpaid
principal amount hereof.
This Note is subordinate and junior in right and time of payment to
all "SENIOR DEBT" of Purchaser, which is any Indebtedness of Purchaser and all
renewals, extensions, refinancings and refundings thereof, except any such
Indebtedness that expressly provides that it is not senior or superior in right
of payment hereto. "INDEBTEDNESS" is any indebtedness, whether or not
contingent, in respect of borrowed money or evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereto) and guarantees of any of the foregoing, whether
or not any such indebtedness would appear as a liability on a balance sheet of
Purchaser prepared on a consolidated basis in accordance with generally accepted
accounting principles.
All scheduled payments of principal and interest in respect of Senior
Debt must be paid before this Note shall be payable, and all scheduled payments
of principal and interest on this Note shall be payable only to the extent that
Purchaser, after paying all its accounts payable and other expenses and
obligations, has the funds to make such payments. Purchaser agrees, and the
holder hereof by accepting this Note agrees, to the subordination provisions
herein contained.
B-1
Upon prior written notice to Purchaser, the holder hereof may sell,
pledge, assign or otherwise transfer this Note; PROVIDED, that prior to such
sale, pledge, assignment or transfer, the Rating Agency Condition is satisfied.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
The holder of this Note, by its acceptance hereof, hereby covenants
and agrees that it will not at any time institute against Purchaser any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law.
IN WITNESS WHEREOF, Purchaser has caused this Subordinated Note to be
duly executed as of the day and year first above written.
WFN CREDIT COMPANY, LLC
By:
------------------------
Name:
Title:
B-2
Schedule Attached to Note dated _________, __________ of WFN CREDIT COMPANY, LLC
payable to the order of WORLD FINANCIAL NETWORK NATIONAL BANK.
Date and Amount of Date and Amount of Unpaid Principal
Borrowing Repayment Balance Notation Made by
B-3
Schedule I
ACCOUNT SCHEDULE
DEEMED INCORPORATED BY REFERENCE
S-1
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS..........................................................1
Section 1.1 Definitions.....................................................1
Section 1.2 Other Definitional Provisions...................................2
ARTICLE II SALE AND CONTRIBUTION OF RECEIVABLES.................................3
Section 2.1 Sales and Contributions.........................................3
Section 2.2 Addition of Additional Accounts.................................5
Section 2.3 Removal of Accounts.............................................7
ARTICLE III CONSIDERATION AND PAYMENT............................................7
Section 3.1 Purchase Price..................................................7
Section 3.2 Adjustments to Purchase Price...................................9
Section 3.3 Settlement and Ongoing Payment of Purchase Price................9
Section 3.4 Netting Arrangements...........................................10
ARTICLE IV REPRESENTATIONS AND WARRANTIES......................................10
Section 4.1 Representations and Warranties of RPA Seller Relating to
RPA Seller.....................................................10
Section 4.2 Representations and Warranties of RPA Seller Relating to
the Agreement and the Receivables..............................12
Section 4.3 Representations and Warranties of Purchaser....................15
ARTICLE V COVENANTS...........................................................16
Section 5.1 RPA Seller Covenants...........................................16
ARTICLE VI REPURCHASE OBLIGATION...............................................19
Section 6.1 Reassignment of Ineligible Receivables.........................19
Section 6.2 Reassignment of Holders' Interest in Trust Portfolio...........19
Section 6.3 Conveyance of Reassigned Receivables...........................20
ARTICLE VII CONDITIONS PRECEDENT................................................20
Section 7.1 Conditions to Purchase.........................................20
Section 7.2 Conditions to Purchaser's Obligations Regarding
Additional Receivables.........................................20
Section 7.3 Conditions Precedent to Obligations of RPA Seller..............21
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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ARTICLE VIII TERM AND PURCHASE TERMINATION.......................................21
Section 8.1 Term...........................................................21
Section 8.2 Purchase Termination...........................................21
ARTICLE IX MISCELLANEOUS PROVISIONS............................................21
Section 9.1 Amendment......................................................21
Section 9.2 GOVERNING LAW..................................................22
Section 9.3 Notices........................................................22
Section 9.4 Severability of Provisions.....................................22
Section 9.5 Merger or Consolidation of, or Assumption of the
Obligations of, RPA Seller.....................................23
Section 9.6 Acknowledgement and Agreement of RPA Seller....................24
Section 9.7 Further Assurances.............................................24
Section 9.8 Nonpetition Covenant...........................................25
Section 9.9 No Waiver; Cumulative Remedies.................................25
Section 9.10 Counterparts...................................................25
Section 9.11 Binding Third-Party Beneficiaries..............................25
Section 9.12 Merger and Integration.........................................25
Section 9.13 Schedules and Exhibits.........................................25
Exhibit A Form of Supplemental Conveyance....................................A-1
Exhibit B Form of Subordinated Note..........................................B-1
Schedule I Account Schedule...................................................I-1
-ii-