Exhibit 4.2
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TRANSFER AND SERVICING AGREEMENT
among
FIRST CONSUMERS CREDIT CORPORATION
Seller,
FIRST CONSUMERS NATIONAL BANK,
Servicer,
and
FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST,
Issuer,
Dated as of March 1, 2001
amended and restated as of December 31, 2001
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ............................................................................................. 1
Section 1.1. Definitions ............................................................................... 1
Section 1.2. Other Definitional Provisions ............................................................. 1
Section 1.3. Monthly Allocation of Finance Charge Receivables .......................................... 2
ARTICLE II CONVEYANCE OF RECEIVABLES ............................................................................... 3
Section 2.1. Conveyance of Receivables ................................................................. 3
Section 2.2. Acceptance by Issuer ...................................................................... 5
Section 2.3. Representations and Warranties of Seller Relating to Seller ............................... 5
Section 2.4 Representations and Warranties of Seller Relating to this Agreement and the Receivables ... 7
Section 2.5. Covenants of Seller ....................................................................... 11
Section 2.6. Addition of Accounts ...................................................................... 15
Section 2.7. Removal of Accounts ....................................................................... 18
Section 2.8. Discount Option ........................................................................... 19
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES ............................................................. 20
Section 3.1. Acceptance of Appointment and Other Matters Relating to the Servicer ...................... 20
Section 3.2. Servicing Compensation .................................................................... 21
Section 3.3. Representations; Warranties and Covenants of the Servicer ................................. 22
Section 3.4. Reports and Records for the Indenture Trustee; Bank Account Statements .................... 23
Section 3.5. Annual Servicer's Certificate ............................................................. 24
Section 3.6. Annual Independent Public Accountants' Servicing Report ................................... 24
Section 3.7. Tax Treatment ............................................................................. 25
Section 3.8. Notices to Seller ......................................................................... 25
Section 3.9. Reports to the Commission ................................................................. 25
ARTICLE IV OTHER MATTERS RELATING TO SELLER ........................................................................ 25
Section 4.1. Liability of Seller ....................................................................... 25
Section 4.2. Merger or Consolidation of, or Assumption of the Obligations of, Seller etc. .............. 25
Section 4.3. Limitation on Liability of Seller ......................................................... 27
ARTICLE V OTHER MATTERS RELATING TO THE SERVICER .......................................................... 27
Section 5.1. Liability of the Servicer ........................................................ 27
Section 5.2. Merger or Consolidation of, or Assumption of the Obligations of, the Servicer .... 27
Section 5.3. Limitation on Liability of the Servicer and Others ............................... 28
Section 5.4. Indemnification of the Issuer and the Owner Trustee .............................. 28
Section 5.5. The Servicer Not to Resign ....................................................... 29
Section 5.6. Access to Certain Documentation and Information Regarding the Receivables ........ 29
Section 5.7. Delegation of Duties ............................................................. 30
Section 5.8. Examination of Records ........................................................... 30
ARTICLE VI INSOLVENCY EVENTS ............................................................................... 30
Section 6.1. Rights upon the Occurrence of an Insolvency Event ................................ 30
ARTICLE VII SERVICER DEFAULTS ............................................................................... 31
Section 7.1. Servicer Defaults ................................................................ 31
Section 7.2. Indenture Trustee to Act; Appointment of Successor ............................... 32
Section 7.3. Notification to Noteholders ...................................................... 34
ARTICLE VIII TERMINATION ..................................................................................... 34
Section 8.1. Termination of Agreement ......................................................... 34
ARTICLE IX MISCELLANEOUS PROVISIONS ........................................................................ 35
Section 9.1. Amendment; Waiver of Past Defaults ............................................... 35
Section 9.2. Protection of Right, Title and Interest to Issuer ................................ 37
Section 9.3. GOVERNING LAW .................................................................... 38
Section 9.4. Notices; Payments ................................................................ 38
Section 9.5. Severability of Provisions ....................................................... 38
Section 9.6. Further Assurances ............................................................... 39
Section 9.7. No Waiver; Cumulative Remedies ................................................... 39
Section 9.8. Counterparts ..................................................................... 39
Section 9.9. Third-Party Beneficiaries ........................................................ 39
Section 9.10. Actions by Noteholders ........................................................... 39
Section 9.11. Rule 144A Information ............................................................ 39
Section 9.12. Merger and Integration ........................................................... 40
Section 9.13. No Bankruptcy Petition ........................................................... 40
Section 9.14. Rights of Indenture Trustee ...................................................... 40
Section 9.15. Rights of the Owner Trustee ...................................................... 40
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EXHIBITS
EXHIBIT A Form of Assignment of Receivables in Additional Accounts ............ A-1
EXHIBIT B Form of Reassignment of Receivables in Removed Accounts ............. B-1
EXHIBIT C Form of Monthly Servicer's Certificate .............................. C-1
EXHIBIT D Form of Annual Servicer's Certificate ............................... D-1
EXHIBIT E Form of Annual Independent Public Accountants' Servicing Report ..... E-1
EXHIBIT F-1 Form of Opinion of Counsel with Respect to Amendments ............... F-1-1
EXHIBIT F-2 Form of Opinion of Counsel with Respect to Accounts ................. F-2-1
EXHIBIT F-3 Provisions to be Included in Annual Opinion of Counsel .............. F-3-1
SCHEDULES
SCHEDULE 1 List of Accounts .................................................... 1-1
SCHEDULE 2 Additional Representations, Warranties and Covenants ................ 2-1
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TRANSFER AND SERVICING AGREEMENT, dated as of March 1, 2001, as amended
and restated herein as of December 31, 2001 (this "Agreement") among FIRST
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CONSUMERS CREDIT CORPORATION, a Delaware corporation, as Seller, FIRST CONSUMERS
NATIONAL BANK, a national banking association, as Servicer, and FIRST CONSUMERS
CREDIT CARD MASTER NOTE TRUST, a trust organized under the laws of the State of
Illinois, as Issuer.
In consideration of the mutual agreements herein contained, each party
agrees as follows for the benefit of the other parties, the Noteholders and any
Series Enhancer to the extent provided herein, in the Indenture and in any
Indenture Supplement:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Capitalized terms used herein and not
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otherwise defined herein are defined in Annex A to the Master Indenture, dated
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as of the date hereof, between First Consumers Credit Card Master Note Trust and
The Bank of New York.
Section 1.2. Other Definitional Provisions. All terms defined directly
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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: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in this
Agreement to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles; (b) terms defined in
Article 9 of the UCC as in effect in the applicable jurisdiction and not
otherwise defined in this Agreement are used as defined in that Article; (c) any
reference to each Rating Agency shall only apply to any specific rating agency
if such rating agency is then rating any outstanding Series; (d) references to
any amount as on deposit or outstanding on any particular date means such amount
at the close of business on such day; (e) 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); (f)
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; (g) the term "including" means "including without limitation"; (h)
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; (i) references to
any Person include that Person's
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successors and assigns; and (j) headings are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
Section 1.3. Monthly Allocation of Finance Charge Receivables. The
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amount of Finance Charge Receivables (excluding, in each case where such term is
used in this Section 1.3, Discount Option Receivables) in all Accounts shall be
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determined as follows:
(a) At the close of business on each Cycle Billing Date for any Cycle
of which any Accounts are included in the Trust, the amount of Finance Charge
Receivables of all Accounts in such Cycle shall be equal to the result of (A)
the amount of Finance Charges charged to all Accounts in such Cycle on such date
minus (B) the amount of Finance Charge Receivables on all Accounts in such
Billing Cycle that have been charged off since the close of business on the
preceding Cycle Billing Date. As of the end of each Monthly Period, the amount
of Finance Charge Receivables for all Accounts shall equal (X) the sum of the
amounts calculated pursuant to the preceding sentence for each Cycle of which
Accounts are included in the Trust during that Monthly Period plus (Y) the
Carry-Over Finance Charge Amount.
(b) For each Business Day in each Monthly Period, the amount of
Collections allocated to Finance Charge Receivables for all Accounts shall be
all Collections available for allocation on that Business Day up to an amount
equal to the quotient of the result determined pursuant to paragraph (a) above
as of the end of the immediately preceding Monthly Period divided by the number
of Business Days in such present Monthly Period; provided, however, that (A) the
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amount of Collections allocated to Finance Charge Receivables for all Accounts
on the first Business Day of each Monthly Period shall equal the product of two
times such quotient, (B) subject to clause (C) below, the amount of Collections
allocated to Finance Charge Receivables for all Accounts on the last Business
Day of each Monthly Period shall equal zero and (C) to the extent that the total
Collections available for allocation on any Business Day (other than the last
Business Day of a Monthly Period) is less than the amount that is to be
allocated to Collections of Finance Charge Receivables on that Business Day,
then the deficit shall be added to the amount of Collections that will be
allocated to Finance Charge Receivables on the next Business Day.
(c) If, at the close of business on the last Business Day of any
Monthly Period, the amount of Collections allocated to Finance Charge
Receivables for all Accounts during such Monthly Period is less than the amount
of Finance Charge Receivables for all Accounts calculated pursuant to paragraph
(a) as of the end of the next preceding Monthly Period, then such deficit shall
be the "Carry-Over Finance Charge Amount" and shall be added to the amount of
Finance Charge Receivables as of the end of the then current Monthly Period
pursuant to paragraph (a).
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Notwithstanding the foregoing, the Servicer may adopt a different
method of determining the amount of Finance Charge Receivables which in the good
faith judgment of the Servicer is designed to more accurately reflect the
portions of Receivables and Collections constituting Finance Charge Receivables.
ARTICLE II
CONVEYANCE OF RECEIVABLES
Section 2.1. Conveyance of Receivables. By execution of this Agreement,
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Seller does hereby transfer, assign, set over and otherwise convey to the
Issuer, without recourse except as provided herein, all its right, title and
interest in, to and under (a) the Collateral Certificate, and (b) effective on
the FCMT Termination Date, the Receivables existing at the opening of business
on the FCMT Termination Date, and thereafter created from time to time until the
termination of the Issuer, all Collections and Recoveries allocable to the
Issuer as provided herein, the rights to receive certain amounts paid or payable
as Interchange (if and to the extent provided for in any Indenture Supplement),
all rights to security for any Receivables (including without limitation rights
to bank accounts or certificates of deposit pledged as collateral) and the right
to any Enhancement with respect to any Series, in each case together with all
monies due or to become due and all amounts received or receivable with respect
thereto, Transferred Assets acquired by Seller under the Receivables Purchase
Agreement, rights described in clause (a)(ii) of the definition of "Existing
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Assets" in the Receivables Purchase Agreement, rights under the Receivables
Purchase Agreement relating to assets that have been transferred or contributed
under the Receivables Purchase Agreement (other than the right to acquire such
assets under Sections 2.1(a) and 2.1(b) thereof) and all proceeds thereof and
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Insurance Proceeds relating thereto. Such property, together with all monies and
other property credited to the Collection Account, the Series Accounts and the
Excess Funding Account (including any subaccounts of any such account), the
rights of the Issuer under this Agreement and the Trust Agreement and the right
to receive Recoveries shall constitute the assets of the Issuer (the "Trust
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Assets"). The foregoing does not constitute and is not intended to result in the
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creation or assumption by the Issuer, the Owner Trustee, the Indenture Trustee
or any Noteholder of any obligation of the Seller, the Servicer or any other
Person in connection with the Accounts or the Receivables or under any agreement
or instrument relating thereto, including any obligation to Obligors, merchant
banks, merchants or clearance systems.
On or prior to the Initial Closing Date, Seller shall deliver to the
Owner Trustee a registered certificate representing the Collateral Certificate.
On or prior to the FCMT Termination Date, Seller agrees to record and file, at
its own expense, financing statements (and continuation statements when
applicable) with respect to the Receivables and other Trust Assets conveyed by
Seller existing on the FCMT Termination Date and thereafter created meeting the
requirements of applicable state law in such manner and in such jurisdictions as
are necessary to perfect, and maintain
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the perfection of, the transfer and assignment of its interest in such
Receivables and other Trust Assets to the Issuer, and to deliver a file stamped
copy of each such financing statement or other evidence of such filing to the
Owner Trustee as soon as practicable after the FCMT Termination Date, and (if
any additional filing is so necessary) as soon as practicable after the
applicable Addition Date, in the case of Receivables and other Trust Assets
arising in Additional Accounts. The Owner Trustee shall be under no obligation
whatsoever to file such financing or continuation statements or to make any
other filing under the applicable UCC in connection with such transfer and
assignment.
Seller further agrees, at its own expense, on or prior to (x) the FCMT
Termination Date, (y) the applicable Addition Date, in the case of Additional
Accounts (other than Additional Accounts added pursuant to Section 2.6(e)), and
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(z) the applicable Removal Date, in the case of Removed Accounts, (a) to
indicate in the appropriate computer files that Receivables created (or
reassigned, in the case of Removed Accounts) in connection with the Accounts
have been conveyed to the Issuer pursuant to this Agreement (or conveyed to
Seller or its designee in accordance with Section 2.7, in the case of Removed
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Accounts) and (b) to deliver to the Owner Trustee a computer file or microfiche
list containing a true and complete list of all such Accounts specifying for
each such Account, as of the FCMT Termination Date, the applicable Addition Date
in the case of Additional Accounts, and the applicable Removal Date in the case
of Removed Accounts, its account number and, the aggregate amount outstanding in
such Account and the aggregate amount of Principal Receivables outstanding in
such Account. Each such file or list, as supplemented, from time to time, to
reflect Additional Accounts and Removed Accounts, shall be marked as Schedule 1
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to this Agreement and is hereby incorporated into and made a part of this
Agreement.
If the arrangements with respect to the Receivables hereunder shall
constitute a loan and not a purchase and sale of such Receivables, it is the
intention of the parties hereto that this Agreement shall constitute a security
agreement under applicable law, and that Seller shall be deemed to have granted
to the Issuer a first priority perfected security interest in all of Seller's
right, title and interest, whether owned on the FCMT Termination Date or
thereafter acquired, in, to and under the Receivables and the other Trust Assets
conveyed by Seller, and all money, accounts, general intangibles, chattel paper,
instruments, documents, goods, investment property, deposit accounts,
certificates of deposit, letters of credit, and advices of credit consisting of,
arising from or related to the Trust Assets, to secure its obligations
hereunder.
Seller and Servicer acknowledge that all instruments (including
certificates of deposit) and bank accounts the security interest in which has
been transferred to the Issuer hereby and which are maintained with Servicer or
of which Servicer has possession, shall be so maintained and held by Servicer on
behalf and for the benefit of the Issuer, in accordance with the terms of this
Agreement.
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Additionally, for purposes of perfecting the Issuer's security interest
in bank accounts pledged to Seller, which security interest Seller has
transferred to the Issuer hereunder, this Agreement constitutes and shall be
deemed (i) notice to Seller and Servicer by the Issuer of the Issuer's security
interest in such bank accounts, and (ii) Seller's and Servicer's acknowledgment
of and consent to the Issuer's notice and the Issuer's security interest in such
bank accounts.
Section 2.2. Acceptance by Issuer.
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(a) The Issuer hereby acknowledges its acceptance of all right, title
and interest to the property, now existing and hereafter created, conveyed to
the Issuer pursuant to Section 2.1. The Owner Trustee shall maintain a copy of
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Schedule 1, as delivered from time to time, at its Corporate Trust Office.
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(b) The Owner Trustee hereby agrees not to disclose to any Person any
of the account numbers or other information contained in the computer files or
microfiche lists marked as Schedule 1 and delivered to the Owner Trustee or the
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Issuer, from time to time, except (i) to a Successor Servicer or as required by
a Requirement of Law applicable to the Owner Trustee, (ii) in connection with
the performance of the Owner Trustee's or the Issuer's duties hereunder, (iii)
to the Indenture Trustee in connection with its duties in enforcing the rights
of Noteholders or (iv) to bona fide creditors or potential creditors of the
Servicer or Seller for the limited purpose of enabling any such creditor to
identify Receivables or Accounts subject to this Agreement or the Receivables
Purchase Agreement. The Owner Trustee and the Issuer each agrees to take such
measures as shall be reasonably requested by Seller to protect and maintain the
security and confidentiality of such information and, in connection therewith,
shall allow Seller or its duly authorized representatives to inspect the Owner
Trustee's security and confidentiality arrangements as they specifically relate
to the administration of the Issuer from time to time during normal business
hours upon prior written notice. The Owner Trustee and the Issuer shall provide
Seller with notice five (5) Business Days prior to disclosure of any information
of the type described in this Section 2.2(b).
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Section 2.3. Representations and Warranties of Seller Relating to
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Seller. Seller hereby represents and warrants as of the Initial Closing Date
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that:
(a) Organization and Good Standing. Seller is a corporation duly
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organized and validly existing in good standing under the laws of Delaware, and
has full corporate power, authority and legal right to own its properties and
conduct its business as such properties are presently owned and such business is
presently conducted, and to execute, deliver and perform its obligations under
this Agreement and the Receivables Purchase Agreement.
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(b) Due Qualification. Seller is not required to qualify to do
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business as a foreign corporation in any state or to obtain any licenses or
approvals in any jurisdiction in order to conduct its business.
(c) Due Authorization. The execution and delivery of this Agreement and
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the Receivables Purchase Agreement and the consummation of the transactions
provided for herein and therein have been duly authorized by Seller by all
necessary corporate action on the part of Seller.
(d) No Conflict. The execution and delivery of this Agreement and the
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Receivables Purchase Agreement, the performance of the transactions contemplated
hereby and thereby and the fulfillment of the terms hereof and thereof will not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default under,
any indenture, contract, agreement, mortgage, deed of trust, or other instrument
to which Seller is a party or by which it or any of its property is bound.
(e) No Violation. The execution and delivery of this Agreement and the
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Receivables Purchase Agreement, the performance of the transactions contemplated
hereby and thereby and the fulfillment of the terms hereof and thereof will not
conflict with or violate any Requirements of Law applicable to Seller.
(f) No Proceedings. There are no proceedings or investigations pending
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or, to the best knowledge of Seller, threatened against Seller, before any
court, regulatory body, administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Agreement or the
Receivables Purchase Agreement, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or the Receivables Purchase
Agreement, (iii) seeking any determination or ruling that, in the reasonable
judgment of Seller, would materially and adversely affect the performance by
Seller of its obligations under this Agreement or the Receivables Purchase
Agreement, (iv) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement or the
Receivables Purchase Agreement or (v) seeking to impose income taxes on the
Issuer (other than as a wholly-owned subsidiary of Seller).
(g) Eligibility of Accounts. As of the Initial FCMT Cut-Off Date, each
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Account then existing was an Eligible Account.
(h) All Consents Required. All approvals, authorizations, consents,
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orders or other actions of any Person or of any governmental body or official
required in connection with the execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement, and the
fulfillment of or terms hereof, have been obtained.
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(i) Bulk Sales. The execution, delivery and performance of this
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Agreement do not require compliance with any "bulk sales" law by Seller.
(j) Solvency. The transactions under this Agreement do not and will not
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render Seller insolvent, nor have such transactions been entered into in
contemplation of the Seller's insolvency.
(k) Selection Procedures. No selection procedures believed by
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Seller to be materially adverse to the interests of the Issuer or the
Noteholders were utilized by Seller in selecting the Accounts.
The representations and warranties set forth in this Section 2.3 shall survive
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the transfer of the Trust Assets to the Issuer. Upon discovery by Seller, the
Servicer or the Owner Trustee of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others and any Enhancement Provider. Seller hereby
represents and warrants, with respect to any Series, as of the Closing Date with
respect to such Series, unless otherwise stated in the related Indenture
Supplement, that the representations and warranties of Seller set forth in this
Section 2.3 will be true and correct as of such date.
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Section 2.4 Representations and Warranties of Seller Relating to this
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Agreement and the Receivables.
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(a) Binding Obligation; Valid Transfer and Security Interest. Seller
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hereby represents and warrants as of each date the representations are made or
deemed made in Sections 4.1(e), (j) and (k) of the Receivables Purchase
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Agreement that such representations are true and correct. Seller hereby
represents and warrants to the Issuer that, as of the Initial Closing Date and,
with respect to any Series issued after the Initial Closing Date, unless
otherwise stated in the related Indenture Supplement, as of the Closing Date for
such Series:
(i) This Agreement constitutes a legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its
terms, except as such enforceability may be limited by Debtor Relief
Laws and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity).
(ii) This Agreement constitutes either (A) a valid transfer to
the Issuer of all right, title and interest of Seller in, to and under
the Trust Assets, and such property will be held by the Issuer free and
clear of any Lien of any Person claiming through or under Seller or its
Affiliates, except for (w) the interests of the FCMT Trustee, the
Indenture Trustee and the Noteholders, (x) Liens permitted under
Section 2.5(b), (y) the Seller Interest and (z) Seller's right to
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receive interest accruing on, and investment earnings in respect of,
the Collection Account or any Series Account as provided in the
Transaction
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Documents or (B) a grant of a security interest in such property to the
Issuer, which is enforceable with respect to (i) upon execution and
delivery of this Agreement, the Collateral Certificate, all monies due
or to become due with respect thereto and other proceeds thereof, (ii)
upon the FCMT Termination Date, the then existing Receivables, all
monies due or to become due with respect thereto, the Collections,
Recoveries and other proceeds thereof, and Insurance Proceeds relating
thereto and (iii) thereafter, at the time new Receivables arise, with
respect to such Receivables, all monies due or to become due with
respect thereto, and the Collections, Recoveries and other proceeds
thereof and Insurance Proceeds relating thereto. If this Agreement
constitutes the grant of a security interest to the Issuer in such
property, upon the filing of the financing statements described in
Section 2.1 and in the case of the Receivables hereafter arising in the
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Accounts and proceeds thereof and Insurance Proceeds relating to such
Receivables, as the same arise, the Issuer shall have a first priority
perfected security interest in such property, except for Liens
permitted under Section 2.5(b). Neither Seller nor any Person claiming
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through or under Seller shall have any claim to or interest in the
Collection Account, the Excess Funding Account or any Series Account,
except for Seller's right to receive interest accruing on, and
investment earnings in respect of, the Collection Account, the Excess
Funding Account or any Series Account, as provided in the Transaction
Documents, Seller's right to receive payments from the Collection
Account or any Series Account in accordance with the provisions of the
Indenture, and, if this Agreement constitutes the grant of a security
interest in such property, except for the interest of Seller in such
property as a debtor for purposes of the UCC as in effect in the
applicable jurisdiction. Without limiting the generality of the
foregoing, from and after the FCMT Termination Date, the
representations and warranties specified in Schedule 2 are true and
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correct.
(b) Eligibility of Receivables. Seller hereby represents and warrants
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as of each date the representations are made or deemed made in Section 4.1(l) of
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the Receivables Purchase Agreement (other than the first sentence thereof) that
such representations are true and correct. As of the FCMT Termination Date,
Seller agrees that all representations and warranties made by it with respect to
any Account or Receivable pursuant to Section 2.4 of the Pooling and Servicing
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Agreement shall be deemed for all purposes (including the reassignment
obligations under Section 2.4(e)) to have been made pursuant to this Agreement
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as of the day when each was made or deemed made, as if this Agreement had been
in effect on that day. Thereafter, each day on which any new Receivable is
transferred by Seller to the Issuer, Seller shall be deemed to represent and
warrant to the Issuer that (i) each Receivable transferred on such day is an
Eligible Receivable, (ii) each Receivable transferred on such day has been
transferred to the Issuer free and clear of any Lien of any Person (other than
Liens permitted under Section 2.5(b), the Seller Interest and Seller's right to
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receive interest accruing on, and investment earnings in respect of, the
Collection Account or any Series Account, as provided in the Transaction
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Documents) and in compliance, in all material respects, with all Requirements of
Law applicable to Seller, (iii) with respect to each such Receivable, all
consents, licenses, approvals or authorizations of or registrations or
declarations with any Governmental Authority required to be obtained, effected
or given by Seller in connection with the transfer of such Receivable to the
Issuer have been duly obtained, effected or given and are in full force and
effect and (iv) the representations and warranties set forth in Section 2.4(a)
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are true and correct with respect to each Receivable transferred on such day as
if made on such day.
(c) Notice of Breach. The representations and warranties set forth in
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this Section 2.4 shall survive the transfer of the respective Receivables to the
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Issuer. Upon discovery by Seller, the Servicer or the Owner Trustee of a breach
of any of the foregoing representations and warranties, the party discovering
such breach shall give prompt written notice to the others and any Enhancement
Provider.
(d) Reassignment of Ineligible Receivables.
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(i) Reassignment of Receivables. In the event any representation or
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warranty contained in Section 2.4(b) is not true and correct in any material
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respect as of the date specified therein with respect to any Receivable or the
related Account unless cured within sixty (60) days (or such longer period, not
in excess of 120 days, as may be agreed to by the Indenture Trustee) after the
earliest to occur of the discovery thereof by Seller or receipt by Seller of
written notice thereof given by the Owner Trustee, the Indenture Trustee or the
Servicer, or the date on which the RPA Seller is required to make any
corresponding purchase under the Receivables Purchase Agreement, then Seller
shall accept reassignment of all Receivables in the related Account ("Ineligible
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Receivables") on the terms and conditions set forth in paragraph (ii) below.
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Notwithstanding anything contained in this Section 2.4(d) to the contrary, in
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the event of breach of any representation and warranty set forth in Section
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2.4(b) with respect to any Receivable having been conveyed to Seller or the
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Issuer free and clear of any Lien of any Person claiming through or under Seller
and its Affiliates and in compliance in all material respects with all
Requirements of Law applicable to RPA Seller or Seller, immediately upon the
earlier to occur of the discovery of such breach by Seller or receipt by Seller
of written notice of such breach given by the Owner Trustee, the Indenture
Trustee or the Servicer, Seller shall repurchase and the Owner Trustee shall
convey, without recourse, representation or warranty, all of the Owner Trustee's
right, title and interest in each Ineligible Receivable, and the Servicer shall
promptly notify the Rating Agencies of such event.
(ii) Price of Reassignment. The Servicer shall deduct the portion of
---------------------
such Ineligible Receivables reassigned to the Seller which are Principal
Receivables from the aggregate amount of the Principal Receivables used to
calculate the Seller Amount and the various Allocation Percentages. If the
exclusion of an Ineligible Receivable from the calculation of the Seller Amount
would cause the Seller Amount to be less than the Minimum Seller Amount, then
Seller shall, on the date of
9
retransfer of such Ineligible Receivable, make a deposit in the Collection
Account (for allocation pursuant to the Indenture) in immediately available
funds in an amount equal to the Shortfall Amount to the extent Seller has
received such funds from RPA Seller under the Receivables Purchase Agreement,
and, if Seller has not received such funds, to the extent Seller has funds
available for such purpose after amounts payable to Securityholders (as defined
in the Receivables Purchase Agreement) have been paid in full. The amounts so
deposited are to be treated for all purposes hereof as Collections on such
Ineligible Receivables.
Upon reassignment of any Ineligible Receivable, the Issuer shall
automatically and without further action be deemed to transfer, assign, set over
and otherwise convey to Seller or its designee, without recourse, representation
or warranty, all the right, title and interest of the Issuer in and to such
Ineligible Receivable, all Recoveries related thereto, all monies and amounts
due or to become due and all proceeds thereof and such reassigned Ineligible
Receivable shall be treated by the Issuer as collected in full as of the date on
which it was transferred. The obligation of Seller to accept reassignment of any
Ineligible Receivables conveyed to the Issuer by Seller, and to make the
deposits, if any, required to be made to the Collection Account as provided in
this Section, shall constitute the sole remedy respecting the event giving rise
to such obligation available to the Issuer, the Noteholders (or the Owner
Trustee on behalf of the Noteholders) or any Series Enhancer. The Issuer shall
execute such documents and instruments of transfer or assignment and take such
other actions as shall reasonably be requested and provided by the Seller to
effect the conveyance of such Ineligible Receivables pursuant to this Section
-------
2.4(d), but only upon receipt of an Officer's Certificate from Seller that
-----
states that all conditions set forth in Section 2.5 have been satisfied. Each
-----------
party hereto agrees that the failure by the Seller to make the deposit in
accordance with this Section 2.4(d) shall not give rise to any claim against the
-------------
Seller.
(e) Reassignment of Issuer Portfolio. If any representation or warranty
--------------------------------
of a Seller set forth in Section 2.4(a) is not true and correct in any material
-------------
respect and such breach has a material adverse effect on the Receivables or the
availability of the proceeds thereof to the Issuer (which determination shall be
made without regard to whether funds are then available pursuant to any Series
Enhancement), then either the Owner Trustee, the Indenture Trustee or the
Holders of Notes holding not less than 50% of the aggregate principal amount of
all Outstanding Notes, by notice then given to Seller and the Servicer (and to
the Owner Trustee and Indenture Trustee if given by the Noteholders), may direct
Seller to accept a reassignment of the Receivables conveyed to the Issuer by
Seller if such breach and any material adverse effect caused by such breach is
not cured within sixty (60) days of such notice (or within such longer period,
not in excess of 120 days, as may be specified in such notice), and upon those
conditions Seller shall be obligated to accept such reassignment on the terms
set forth below; provided, however, that the Receivables will not be reassigned
-------- -------
to Seller if, on any day prior to the end of such 60-day or longer period (i)
the relevant representation and warranty shall be true and correct in
10
all material respects as if made on such day and (ii) Seller shall have
delivered to the Owner Trustee a certificate of an authorized officer describing
the nature of such breach and the manner in which the relevant representation
and warranty has become true and correct.
Seller shall deposit in the Collection Account in immediately available
funds not later than 1:00 p.m., New York City time, on the Transfer Date for the
first Distribution Date following the Monthly Period in which such reassignment
obligation arises, in payment for such reassignment, an amount equal to the
deposit amount for the reassignment to the extent Seller has received such funds
from RPA Seller under the Receivables Purchase Agreement, and, if Seller has not
received such funds, to the extent Seller has funds available for such purpose
after amounts payable to Securityholders (as defined in the Receivables Purchase
Agreement) have been paid in full. The deposit amount for such reassignment will
be equal to the sum of the amounts specified therefor with respect to each
outstanding Series in the related Indenture Supplement. Notwithstanding anything
to the contrary in this Agreement, such amounts shall be distributed to the
Noteholders on such Distribution Date in accordance with the terms of each
Indenture Supplement. If the Owner Trustee, the Indenture Trustee or the
Noteholders give notice directing the Seller to accept a reassignment of the
Receivables as provided above, the obligation of Seller to accept such
reassignment pursuant to this Section 2.4(e) and to make the deposit required to
-------------
be made to the Collection Account as provided in this paragraph shall constitute
the sole remedy respecting an event of the type specified in the first sentence
of this Section 2.4(e) available to the Noteholders (or the Owner Trustee or
-------------
Indenture Trustee on behalf of the Noteholders) or any Series Enhancer. Upon
reassignment of the Receivables on such Distribution Date, the Issuer shall
automatically and without further action be deemed to sell, transfer, assign,
set-over and otherwise convey to the Seller, without recourse, representation or
warranty, all the right, title and interest of the Issuer in and to the
Receivables and Recoveries allocable to the Issuer, and all monies and amounts
due or to become due with respect thereto and all proceeds thereof. The Issuer
shall execute such documents and instruments of transfer or assignment and take
such other actions as shall reasonably be requested by the Seller to effect the
conveyance of such property pursuant to this Section. Each party hereto agrees
that the failure by the Seller to make the deposit in accordance with this
Section 2.4(e) shall not give rise to any claim against the Seller.
-------------
(f) Seller will not add additional RPA Seller parties to the
Receivables Purchase Agreement, and not become a party to a new receivables
purchase agreement with any party other than FCNB, without first satisfying the
Rating Agency Condition.
(g) Seller will be adequately capitalized to engage in the transactions
contemplated by its Certificate of Incorporation.
11
Section 2.5. Covenants of Seller. Seller hereby covenants that:
-------------------
(a) Receivables to be Accounts. Seller will take no action to cause any
--------------------------
Receivable to be characterized as anything other than an "account" (as defined
in the UCC as in effect in the applicable jurisdiction). Each Receivable shall
be payable pursuant to a contract which does not create a Lien on any goods
purchased thereunder.
(b) Security Interests. Except for the transfers hereunder and under
------------------
the Transfer and Servicing Agreement, 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 transferred to the
Issuer, or any interest therein. Seller will immediately notify the Owner
Trustee of the existence of any Lien on any Receivable; and Seller shall defend
the right, title and interest of the Issuer in, to and under the Receivables,
whether now existing or hereafter transferred to the Issuer, against all claims
of third parties; provided, however, that nothing in this Section 2.5(b) shall
-------- ------- -------------
prevent or be deemed to prohibit Seller from suffering to exist upon any of the
Receivables any Liens for state, municipal or other local taxes if such taxes
shall not at the time be due and payable or if 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;
provided further, however, that nothing in this Section 2.5(b) shall prevent or
-------- ------- ------- --------------
be deemed to prohibit Seller from granting a participation interest in the
Seller Interest.
(c) Account Allocations. If Seller is unable for any reason to transfer
-------------------
Receivables to the Issuer in accordance with the provisions of this Agreement
(including by reason of the occurrence of an Insolvency Event) then Seller
agrees that, solely for purposes of payments under this Agreement, it shall in
any such event allocate, after the occurrence of such event, payments on each
Account with respect to the principal balance of such Account first to the
oldest principal balance of such Account (it being understood that the foregoing
allocation does not affect, with respect to any obligor, the priority of
application of cardholder payments provided for in the related Cardholder
Agreement(s)) and to have such payments applied as Collections in accordance
with the Indenture. The parties hereto agree that Finance Charge Receivables,
whenever created, accrued in respect of Principal Receivables which have been
conveyed to the Issuer, or which would have been conveyed to the Issuer but for
the above described inability to transfer such Receivables, shall continue to be
a part of the Issuer notwithstanding any cessation of the transfer of additional
Principal Receivables to the Issuer and Collections with respect thereto shall
continue to be allocated and paid in accordance with the Indenture.
(d) Delivery of Collections. Seller agrees to pay to the Servicer (if
-----------------------
the Servicer is not then First Consumers National Bank) promptly (but in no
event later than two Business Days after receipt) all Collections received by
Seller in respect of the Receivables.
12
(e) Finance Charges and Other Fees. Seller agrees that, except as
------------------------------
otherwise required by any Requirement of Law or as is deemed by Seller to be
advisable for its MasterCard and VISA programs based on a good faith assessment
by Seller of the various factors impacting the use of its MasterCard and VISA
cards, Seller shall not permit FCNB to reduce at any time (i) the Finance
Charges assessed in respect of any Accounts, or (ii) any other fees charged on
any of the Accounts if, as a result of such reduction, FCNB's reasonable
expectation of the Portfolio Yield in respect of any Series as of such date
would be less than the current Base Rate applicable to such Series.
(f) Cardholder Agreements and Cardholder Guidelines. Seller agrees to
-----------------------------------------------
comply with and perform its obligations under the Cardholder Agreements relating
to the Accounts and the Cardholder Guidelines, except insofar as any failure so
to comply or conform would not materially and adversely affect the rights of the
Issuer the Noteholders under the Transaction Documents. In that regard, except
as aforesaid, and so long as such changes are made applicable to the comparable
segments of those MasterCard and VISA accounts owned and serviced by the
Servicer which have characteristics the same as, or substantially similar to,
the Accounts which are subject hereto (if any), Seller shall be free to change
the terms and provisions of such Cardholder Agreements or the Cardholder
Guidelines in any respect (including, without limitation, the calculation of the
amount, or the timing, of charge offs). FCNB shall provide to each Rating Agency
written notice of any such change that (i) lowers the periodic finance charge
rate used to calculate Finance Charges on any Account or changes the minimum
monthly payment applicable to any Account; (2) changes any periodic finance
charge rate used to calculate Finance Charges on any Account from a floating
rate to a fixed rate or from a fixed rate to a floating rate; (3) reduces any
Cardholder Fees, Cash Advance Fees or other fees applicable to any Account or
(4) changes the calculation of the amount, or the timing, of charge offs.
(g) Sale Treatment. Seller agrees to treat the conveyance of
--------------
Receivables hereunder as a sale for accounting purposes.
(h) Compliance with Law. Seller hereby agrees to comply in all material
-------------------
respects with all Requirements of Law applicable to Seller.
(i) Activities of Seller. Seller shall not engage in any business or
--------------------
activity of any kind or enter into any transaction or indenture, mortgage,
instrument, agreement, contract, lease or other undertaking which is not
directly related to the transactions contemplated and authorized by the
Transaction Documents or which is otherwise a Permitted Transaction.
(j) Indebtedness. Seller shall not create, incur, assume or suffer to
------------
exist any Indebtedness or other liability whatsoever, except (i) owing to the
Issuer under this Agreement or the Receivables Purchase obligations incurred or
Agreement,
13
(ii) liabilities incident to the maintenance of its corporate existence in good
standing and the ownership of the Receivables, (iii) obligations incident to a
Permitted Transaction or (iv) obligations to FCNB or Spiegel evidenced by a
Subordinated Note.
(k) Guarantees. Seller shall not become or remain liable, directly or
----------
contingently, in connection with any Indebtedness or other liability of any
other Person, whether by guarantee, endorsement (other than endorsements of
negotiable instruments for deposit or collection in the ordinary course of
business), agreement to purchase or repurchase, agreement to supply or advance
funds, or otherwise except incident to a Permitted Transaction.
(l) Investments. Seller shall not make or suffer to exist any loans or
-----------
advances to, or extend any credit to, or make any investments (by way of
transfer of property, contributions to capital, purchase of stock or securities
or evidences of indebtedness, acquisition of the business or assets, or
otherwise) in, any Person except (i) for purchases of Receivables pursuant to
the Receivables Purchase Agreement, (ii) for investments in Permitted
Investments in accordance with the terms of this Agreement or (iii) pursuant to
a Permitted Transaction.
(m) Distributions. Seller shall not declare or pay, directly or
-------------
indirectly, any dividend or make any other distribution (whether in cash or
other property) with respect to the profits, assets or capital of Seller or any
Person's interest therein, or purchase, redeem or otherwise acquire for value
any of its capital stock now or hereafter outstanding, except that so long as no
Event of Default or Pay Out Event has occurred and is continuing and no Event of
Default or Pay Out Event would occur as a result thereof or after giving effect
thereto, Seller may declare and pay dividends on its capital stock.
(n) Agreements. Seller shall not become a party to, or permit any of
----------
its properties to be bound by, any indenture, mortgage, instrument, contract,
agreement, lease or other undertaking, except the Transaction Documents and
except incidental to a Permitted Transaction or amend or modify the provisions
of its Certificate of Incorporation or issue any power of attorney except to the
Owner Trustee or to the Servicer.
(o) Receivables Purchase Agreement. Seller shall not give any consent
-------------------------------
to FCNB under the Receivables Purchase Agreement unless the Rating Agency
Condition is satisfied with respect thereto.
(p) Separate Corporate Existence. Seller shall:
----------------------------
(i) Maintain its own deposit account or accounts, separate from
those of any Affiliate, with commercial banking institutions. The funds
of
14
Seller will not be diverted to any other Person or for other than
corporate uses of Seller except for dividends allowed under Section
-------
2.5(m).
------
(ii) Ensure that, to the extent that it shares the same
officers or other employees as any of its stockholders or Affiliates,
the salaries of and the expenses related to providing benefits to such
officers and other employees shall be fairly allocated among such
entities, and each such entity shall bear its fair share of the salary
and benefit costs associated with all such common officers and
employees.
(iii) Ensure that, to the extent that it jointly contracts
with any of its stockholders or Affiliates to do business with vendors
or service providers or to share overhead expenses, the costs incurred
in so doing shall be allocated fairly among such entities, and each
such entity shall bear its fair share of such costs. To the extent that
Seller contracts or does business with vendors or service providers
where the goods and services provided are partially for the benefit of
any other Person, the costs incurred in so doing shall be fairly
allocated to or among such entities for whose benefit the goods and
services are provided, and each such entity shall bear its fair share
of such costs. All material transactions (other than this Agreement and
the Receivables Purchase Agreement) between Seller and any of its
Affiliates shall be only on an arm's length basis.
(iv) Maintain a principal executive and administrative
office through which its business is conducted separate from those of
its Affiliates. To the extent that Seller and any of its stockholders
or Affiliates have offices in the same location, there shall be a fair
and appropriate allocation of overhead costs among them, and each such
entity shall bear its fair share of such expenses.
(v) Conduct its affairs strictly in accordance with its
Certificate of Incorporation and observe all necessary, appropriate and
customary corporate formalities, including, but not limited to, holding
all regular and special stockholders' and directors' meetings
appropriate to authorize all corporate action, keeping separate and
accurate minutes of its meetings, passing all resolutions or consents
necessary to authorize actions taken or to be taken, and maintaining
accurate and separate books, records and accounts, including, but not
limited to, payroll and intercompany transaction accounts.
(vi) Conduct its own business in its own name.
(vii) Use separate stationary, invoices and checks.
(viii) Hold itself out as a separate entity.
15
(q) Location of Records. Seller (i) shall not move outside the State of
-------------------
Delaware the location of its chief executive office without 45 days' prior
written notice to the Owner Trustee and (ii) will promptly take all actions
required (including but not limited to all filings and other acts necessary or
advisable under the UCC of each applicable jurisdiction) in order to continue
the first priority perfected ownership interest of the Noteholders in all
Receivables now owned or hereunder created. Seller will give the Owner Trustee
prompt notice of a change within the State of Delaware of the location of its
chief executive office.
Section 2.6. Addition of Accounts.
--------------------
(a) If, on any day after the FCMT Termination Date, the Aggregate
Principal Balance is less than the Minimum Aggregate Principal Balance, either
Seller or the Servicer (whichever shall first become aware of same) promptly
shall give the Owner Trustee written notice thereof, and as soon as practicable
(but in no event later than 10 days thereafter) Seller shall designate
additional Eligible Accounts ("Additional Accounts") to be included as Accounts
-------------------
and shall transfer the Receivables in such Additional Accounts to the Issuer, in
a sufficient amount so that the Aggregate Principal Balance on such day would
have, if the Receivables from such Additional Accounts had been transferred to
the Issuer on or prior to such day, at least equaled the Minimum Aggregate
Principal Balance.
(b) In addition to its obligation under Section 2.6(a), Seller may, but
--------------
shall not be obligated to, from time to time, designate Additional Accounts to
be included as Accounts, so long as after giving effect to such addition not
more than 20% of the Receivables, by outstanding balance, will be 30 or more
days delinquent (and for this purpose, Receivables in an Account shall be
considered delinquent if less than 100% of a required payment was received).
(c) Seller agrees that any Receivables from Additional Accounts shall
be transferred by Seller to the Issuer under Section 2.6(a), (b) or (e) upon and
-------------- --- ---
subject to the following conditions:
(i) On or before the fifth Business Day (the "Notice Date")
-----------
prior to the Addition Date in respect of Additional Accounts added
pursuant to Section 2.6(a) or (b), Seller shall give the Owner Trustee
and the Servicer (if a Person other than Seller) written notice that
such Additional Accounts will be included and specifying the
approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only
in Eligible Accounts, and (B) shall, if such designation of Additional
Accounts is made pursuant to Section 2.6(b) or (e) and if the addition
-------------- ---
of such Additional Accounts
16
(1) would cause the quotient (the "Annual Quotient")
---------------
of (x) the sum of the Annual Account Additions after giving
effect to such addition, plus the related Base Amount, divided
by (y) the related Base Amount to exceed 1.20, or
(2) would cause the quotient (the "Quarterly
---------
Quotient") of (x) the sum of the Quarterly Account Additions
--------
after giving effect to such addition plus the related Base
Amount divided by (y) the related Base Amount to exceed 1.15;
in either case, deliver a letter from each Rating Agency to the
Indenture Trustee by the Addition Date confirming that the Rating
Agency Condition has been satisfied with respect to the addition of
such Additional Accounts;
(iii) On or prior to the Addition Date, in respect of
Additional Accounts added pursuant to Section 2.6(a) or (b), Seller
-------------- ---
shall have delivered to the Owner Trustee a written Assignment
Agreement (including an acceptance by the Owner Trustee on behalf of
the Issuer for the benefit of the Noteholders) in substantially the
form of Exhibit A (the "Assignment Agreement") and shall have indicated
--------- --------------------
in its books and records, including the computer files of the
Receivables, that the Receivables created in connection with the
Additional Accounts have been transferred by Seller to the Issuer; and
shall have delivered to the Owner Trustee a computer file or microfiche
list containing a true and complete list of all Additional Accounts
identified by account number, and the aggregate amount of the
Receivables and the aggregate amount of Principal Receivables in such
Additional Accounts, as of the Addition Date in respect of Additional
Accounts added pursuant to Section 2.6(a) or (b), which computer file
-------------- ---
or microfiche list shall be marked as Schedule 1 to the Assignment
----------
Agreement, delivered to the Owner Trustee as confidential and
proprietary, shall be as of the date of such Assignment Agreement and
incorporated into and made a part of such Assignment Agreement and this
Agreement;
(iv) Seller shall be deemed to represent and warrant that (x)
each Additional Account is, as of the Addition Date, an Eligible
Account, (y) no selection procedures reasonably believed by Seller to
be materially adverse to the interests of the Noteholders were utilized
in selecting the Additional Accounts from the available Eligible
Accounts, and (z) as of the Addition Date, Seller is not insolvent and
will not be rendered insolvent by adding any such Additional Account;
(v) Seller shall be deemed to represent and warrant that, as
of the Addition Date, the representations and warranties set out in
Schedule 2 are correct; and, without limiting the generality of the
----------
foregoing, the Assignment Agreement constitutes either (x) a valid
transfer to the Issuer of all right, title
17
and interest of Seller in, to and under the Receivables then existing
and thereafter arising in respect of the Additional Accounts, all
monies due or to become due with respect thereto (including all Finance
Charge Receivables), and all proceeds of such Receivables and Insurance
Proceeds relating thereto, and such property will be owned by the
Issuer free and clear of any Lien of any Person, except for (i) Liens
permitted under Section 2.5(b), (ii) the Seller Interest and (iii)
--------------
Seller's right to receive interest accruing on, and investment earnings
in respect of, the Collection Account or any Series Account, as
provided in this Agreement and any Indenture Supplement, or (y) a grant
of a security interest in such property to the Issuer, which is
enforceable with respect to then existing Receivables of the Additional
Accounts, all monies due or to become due with respect thereto, the
proceeds thereof and Recoveries and Insurance Proceeds relating thereto
upon the transfer of such Receivables to the Issuer, and which will be
enforceable with respect to the Receivables thereafter transferred in
respect of Additional Accounts, the proceeds thereof and Insurance
Proceeds relating thereto upon such transfer; and (z) if the Assignment
Agreement constitutes the grant of a security interest to the Issuer in
such property, upon the filing of a financing statement as described in
Section 2.1 with respect to such Additional Accounts and in the case of
-----------
the Receivables of Additional Accounts thereafter transferred and the
proceeds thereof, and Insurance Proceeds relating to such Receivables,
upon such transfer, the Issuer shall have a first priority perfected
security interest in such property, except for Liens permitted under
Section 2.5(b), the Seller Interest and Seller's right to receive
--------------
interest accruing on, and investment earnings in respect of, the
Collection Account or any Series Account, as provided in this Agreement
and any Indenture Supplement;
(vi) Seller shall, on the Addition Date for Additional Accounts
added pursuant to Section 2.6(a) or (b), deliver a certificate of a
-------------- ---
Vice President or more senior officer confirming the items set forth in
paragraphs (ii), (iii), (iv) and (v) above; and
---- ----- ---- ---
(vii) Seller shall, on the Addition Date for Additional Accounts
added pursuant to Section 2.6(a) or (b), deliver an Opinion of Counsel
-------------- ---
with respect to the Receivables in the Additional Accounts to the Owner
Trustee substantially in the form of Exhibit F-2, and which shall be
-----------
reasonably acceptable to the Rating Agencies.
(d) Seller shall provide to each Rating Agency and to each Enhancement
Provider prior written notice each time Additional Accounts are added pursuant
to Section 2.6(a) or (b).
-------------- ---
(e) In addition to the occasional designation of Additional Accounts as
required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that
--------------- ---
each new MasterCard or VISA account originated in the normal course of FCNB's
business
18
after the FCMT Termination Date, where the Receivables with respect to such
accounts are purchased by Seller pursuant to the Receivables Purchase Agreement,
shall automatically be included as an Account (and the Trust Assets arising
thereunder automatically transferred to the Issuer) effective on the date on
which such account is created; provided, however, that such automatic inclusion
-------- -------
and transfer shall not occur with respect to any such account if: (i) such
account does not qualify as an Eligible Account, (ii) the transfer to the Issuer
of the Receivables in such Account, if such Accounts had been designated by
Seller pursuant to Section 2.6(b), would have caused the limitations set forth
--------------
in Section 2.6(c)(ii) to be exceeded (unless there shall have been delivered to
------------------
the Indenture Trustee a letter from each Rating Agency confirming the Rating
Agency Condition has been satisfied with respect to the addition of such
Additional Account), or (iii) Seller otherwise designates such account as an
account which is not to be included as an Account pursuant to this Section
-------
2.6(e). On or before the fifth Business Day of each month next succeeding a
------
calendar month in which Accounts were included pursuant to the preceding
sentence, Seller shall indicate in its computer files of the receivables that
the Receivables created in connection with such included Accounts have been
transferred to the Issuer. Seller, at its option, may, by providing written
notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion
of Additional Accounts added pursuant to Section 2.6(e) at any time.
--------------
Section 2.7. Removal of Accounts.
-------------------
(a) Subject to the conditions set forth below, after the FCMT
Termination Date, Seller may designate from time to time Accounts no longer to
be designated for inclusion in the Issuer (the "Removed Accounts"); provided,
---------------- --------
however, that Seller shall not make more than one such designation in any
-------
Monthly Period. On or before the fifth Business Day (the "Removal Notice Date")
-------------------
prior to the date on which Removed Accounts shall be designated (the "Removal
-------
Date"), Seller shall give the Owner Trustee, the Servicer and each Enhancement
----
Provider written notice that the Receivables from such Removed Accounts are to
be retransferred to Seller.
(b) Seller shall be permitted to designate and require retransfer to it
of the Receivables from Removed Accounts only upon satisfaction of the following
conditions:
(i) If the Accounts to be removed have outstanding
Receivables, Seller shall satisfy the Rating Agency Condition with
respect thereto by such Removal Date;
(ii) on each Removal Date, the Owner Trustee shall deliver to
Seller a written Reassignment Agreement in substantially the form of
Exhibit B (the "Reassignment Agreement") prepared by Seller, and Seller
--------- ----------------------
shall deliver to the Owner Trustee a computer file, microfiche or
written list containing a true and complete schedule identifying all
Removed Accounts
19
specifying for each such Removed Account, as of the Removal Notice
Date, its account number and the Receivable balance thereof. Such
computer file, microfiche or written list shall be as of the date of
such Reassignment Agreement incorporated into and made a part of this
Agreement;
(iii) Seller shall represent and warrant as of each Removal
Date that (A) the list of Removed Accounts, as of the Removal Notice
Date, complies in all material respects with the requirements of (ii)
above; (B) Accounts (or administratively convenient groups of Accounts,
such as billing cycles) were chosen for removal randomly or otherwise
not on a basis intended to select particular accounts or groups of
accounts for any reason other than administrative convenience, and no
selection procedure used by Seller which is adverse to the interests of
the Noteholders was utilized in selecting the Removed Accounts; and (C)
as of the Removal Notice Date and as of the Removal Date, Seller is not
insolvent and such removal was not made in contemplation of the
Seller's insolvency;
(iv) The removal of any Receivables of any Removed Accounts
on any Removal Date shall not, in the reasonable belief of Seller,
cause a Pay Out Event to occur, or an event which with notice or lapse
of time or both would constitute a Pay Out Event;
(v) The Aggregate Principal Balance shall not be less than
the Minimum Aggregate Principal Balance after giving effect to such
removal;
(vi) Seller shall have delivered to the Owner Trustee and to
each Enhancement Provider a certificate of an officer of Seller
confirming the items set forth in (i) through (v) above. The Owner
Trustee may conclusively rely on such certificate, shall have no duty
to make inquiries with regard to the matters set forth therein and
shall incur no liability in so relying; and
(vii) such other conditions and restrictions as may at any
time be specified in an Officer's Certificate of the Seller delivered
to the Owner Trustee shall have been satisfied, it being understood
that (i) no such additional conditions or restrictions may conflict
with or override any of the conditions and restrictions specified
above, and (ii) upon delivery of such an Officer's Certificate to the
Owner Trustee, the additional conditions and restrictions specified
therein shall be deemed to be incorporated by reference into and become
a part of this Agreement.
Upon satisfaction of the above conditions, the Owner Trustee shall
execute and deliver the Reassignment Agreement to Seller, and the Receivables
from the Removed Accounts shall no longer constitute a part of the Issuer.
20
(d) On and after the FCMT Termination Date, on the date on which an
Account becomes a Defaulted Account, the Trust shall automatically and without
further action or consideration be deemed to transfer, set over, and otherwise
convey to the Seller, without recourse, representation or warranty, all the
right, title and interest of the Trust in and to the Receivables in such
Defaulted Account, all monies due or to become due with respect thereto, all
proceeds of such Receivables allocable to the Trust with respect to such
Receivable, excluding Recoveries relating thereto, which shall remain a part of
the Trust Assets.
Section 2.8. Discount Option. (a) Seller shall have the option to
---------------
designate at any time and from time to time a percentage or percentages, which
may be a fixed percentage or a variable percentage based on a formula (the
"Discount Percentage"), of all or any specified portion of Principal Receivables
-------------------
created after the Discount Option Date to be treated as Finance Charge
Receivables ("Discount Option Receivables"). Seller shall also have the option
---------------------------
of reducing or withdrawing the Discount Percentage, at any time and from time to
time, on and after such Discount Option Date. Seller shall provide to the
Servicer, the Owner Trustee and any Rating Agency 30 days' prior written notice
of the Discount Option Date, and such designation shall become effective on the
Discount Option Date (i) unless such designation in the reasonable belief of
Seller would cause a Pay Out Event with respect to any series to occur, or an
event which, with notice or lapse of time or both, would constitute a Pay Out
Event with respect to any Series or (ii) unless the Rating Agency Condition
shall not have been satisfied with respect to such designation; provided that
--------
for this purpose Moody's shall not be deemed to be a "Rating Agency."
(b) After the Discount Option Date, Seller shall treat Discount Option
Receivable Collections as Collections of Finance Charge Receivables.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Prior to the FCMT Termination Date, the Receivables shall be serviced
as provided in the Pooling and Servicing Agreement, and this Article III will
have no effect. On and after the FCMT Termination Date:
Section 3.1. Acceptance of Appointment and Other Matters Relating to
-------------------------------------------------------
the Servicer.
------------
(a) FCNB agrees to act as the Servicer under this Agreement. The
Noteholders by their acceptance of the Notes consent to FCNB's acting as
Servicer.
(b) Subject to the provisions of this Agreement, the Servicer shall
service and administer the Receivables and shall collect payments due under the
Collateral Certificate and the Receivables in accordance with its customary and
usual servicing
21
procedures for servicing credit card receivables comparable to the Receivables
and in accordance with the Cardholder Guidelines and shall have full power and
authority, acting alone or through any party properly designated by it
hereunder, to do any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing and subject to Section 7.1, the Servicer is hereby
-----------
authorized and empowered (i) unless such power and authority is revoked by the
Indenture Trustee on account of the occurrence of a Servicer Default pursuant to
Section 7.1, to make withdrawals from the Collection Account as set forth in
-----------
this Agreement, (ii) unless such power and authority is revoked by the Indenture
Trustee on account of the occurrence of a Servicer Default pursuant to Section
7.1, to instruct the Indenture Trustee to make withdrawals and payments from the
Series Accounts in accordance with such instructions as set forth in this
Agreement, (iii) unless such power and authority is revoked by the Indenture
Trustee on account of the occurrence of a Servicer Default pursuant to Section
7.1, to instruct the Indenture Trustee in writing as provided herein, and (iv)
unless such power and authority is revoked by the Indenture Trustee on account
of the occurrence of a Servicer Default pursuant to Section 7.1, to execute and
-----------
deliver, on behalf of the Issuer for the benefit of the Noteholders, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Receivables
and, after the delinquency of any Receivable and to the extent permitted under
and in compliance with applicable law and regulations, to commence enforcement
proceedings with respect to such Receivables. The Owner Trustee shall furnish
the Servicer with any powers of attorney and other documents necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder.
(c) If Seller is unable for any reason to transfer Receivables to the
Issuer in accordance with the provisions of this Agreement (including by reason
of the occurrence of an Insolvency Event), the Servicer agrees to allocate and
pay to the Issuer, after such date, all Collections as contemplated by Section
-------
2.5(c).
------
(d) The Servicer shall not be obligated to use separate servicing
procedures, offices, employees or accounts for servicing the Receivables from
the procedures, offices, employees and accounts used by the Servicer in
connection with servicing other credit card receivables.
(e) The Servicer shall maintain fidelity bond coverage insuring against
losses through wrongdoing of its officers and employees who are involved in the
servicing of credit card receivables.
Section 3.2. Servicing Compensation. As compensation for its servicing
----------------------
activities hereunder and reimbursement for its expenses as set forth in the
immediately following paragraph, the Servicer shall be entitled to receive a
monthly servicing fee in respect of any Monthly Period (or portion thereof)
prior to the termination of the Issuer pursuant to the Indenture (the "Monthly
Servicing Fee").
22
The share of the Monthly Servicing Fee allocable to each Series of Notes with
respect to any Monthly Period (or portion thereof) shall be payable on the
related Distribution Date and, with respect to each Series (unless provided in
the related Indenture Supplement), shall be equal to the amount specified in the
related Indenture Supplement (the "Investor Monthly Servicing Fee"). The share
------------------------------
of the Monthly Servicing Fee allocable to the Holder of the Seller Interest with
respect to any Monthly Period (or portion thereof) shall be equal to one-twelfth
of the product of (A) Seller Amount minus the sum of the Excess Funding Amount
and the balance on deposit in the Principal Collections Subaccount, and (B) the
weighted average of the Servicing Fee Rates with respect to each Series of Notes
then outstanding (the "Monthly Seller Servicing Fee"). The Monthly Servicing Fee
----------------------------
shall equal the sum of (x) the aggregate amount of Investor Monthly Servicing
Fees with respect to each Series then outstanding and (y) the Monthly Seller
Servicing Fee. The Investor Monthly Servicing Fee with respect to any Series is
payable in arrears on the related Distribution Date (unless otherwise provided
in the related Indenture Supplement) and the Monthly Seller Servicing Fee is
payable in arrears no later than the last Distribution Date with respect to any
Series occurring in a Monthly Period. The Monthly Seller Servicing Fee and,
unless otherwise provided in an Indenture Supplement, each Investor Monthly
Servicing Fee, shall be calculated on the basis of a 360-day year consisting of
twelve 30-day months.
The Servicer's expenses include the reasonable fees and disbursements
of independent accountants and all other expenses incurred by the Servicer in
connection with its activities hereunder; provided that the Servicer shall not
--------
be liable for any liabilities, costs or expenses of the Issuer, the Noteholders
or the Note Owners arising under any tax law, including any federal, state or
local income or franchise taxes or any other tax imposed on or measured by
income (or any interest or penalties with respect thereto or arising from a
failure to comply therewith). The Servicer shall be required to pay such
expenses for its own account and shall not be entitled to any payment therefor
other than the Monthly Servicing Fee.
Section 3.3. Representations; Warranties and Covenants of the Servicer.
---------------------------------------------------------
FCNB, as initial Servicer, hereby makes, and any successor Servicer by its
appointment hereunder shall make, the following representations and warranties
and covenants on which the Owner Trustee has relied in accepting the Receivables
in trust and in authenticating Notes:
(a) Organization and Good Standing. The Servicer is duly organized,
------------------------------
validly existing and in good standing under the laws of its jurisdiction of
organization, and has full corporate power, authority and right to own its
properties and conduct its business as such properties are presently owned and
such business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
23
(b) Due Qualification. The Servicer is qualified as a foreign banking
-----------------
association or other entity in any state where it is required to be so qualified
to service the Receivables as required by this Agreement and has obtained all
necessary licenses and approvals as required under federal and state law, in
each case, where the failure to be so qualified, licensed or approved, could
reasonably be expected materially and adversely to affect the ability of the
Servicer to comply with the terms of this Agreement.
(c) Due Authorization. The execution, delivery, and performance of this
-----------------
Agreement have been duly authorized by the Servicer by all necessary corporate
action on the part of the Servicer.
(d) Binding Obligation. This Agreement constitutes the legal, valid and
------------------
binding obligations of the Servicer, enforceable in accordance with its terms,
except as enforceability may be limited by Debtor Relief Laws and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(e) No Violation. The execution and delivery of this Agreement by the
------------
Servicer, and the performance of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof applicable to the Servicer, will not
conflict with, violate, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time or both) a default
under, any Requirements of Law applicable to the Servicer or any indenture,
contract, agreement, mortgage, deed of trust or other instrument to which the
Servicer is a party or by which it is bound.
(f) No Proceedings. There are no proceedings or investigations pending
--------------
or, to the best knowledge of the Servicer, threatened against the Servicer
before any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, seeking any determination or ruling
that, in the reasonable judgment of the Servicer, would materially and adversely
affect the performance by the Servicer of its obligations under this Agreement,
or seeking any determination or ruling that would materially and adversely
affect the validity or enforceability of this Agreement.
(g) Rescission and Cancellation. Other than pursuant to and in
---------------------------
accordance with the Cardholder Guidelines, the Servicer shall not rescind or
cancel any Receivable unless such rescission or cancellation shall have been
ordered or directed by a Governmental Authority.
(h) Other Actions. Other than pursuant to and in accordance with the
-------------
Cardholder Guidelines and as otherwise specifically permitted by this Agreement,
the Servicer shall not (i) take or fail to take any action if such action or
failure to act
24
would impair the rights of the Issuer in any Receivable, or (ii) revise or defer
any payment due in respect of any Receivable.
(i) Compliance with Requirements of Law. The Servicer shall duly
--------------------------------------
satisfy all obligations on its part to be fulfilled under or in connection with
the Receivables or Accounts, will maintain in effect all qualifications required
under Requirements of Law in order to properly service the Receivables and the
Accounts and will comply in all material respects with all Requirements of Law
in connection with servicing the Receivables and the Accounts the failure to
comply with which would have a material adverse effect on the Noteholders.
Section 3.4. Reports and Records for the Indenture Trustee; Bank
---------------------------------------------------
Account Statements.
-------------------
(a) Daily Reports. On each Business Day, the Servicer shall prepare and
-------------
make available at the office of the Servicer for inspection by the Indenture
Trustee a record setting forth (i) the aggregate amount of Collections processed
by the Servicer on the preceding Business Day and (ii) the aggregate amount of
Receivables as of the close of business on the preceding Business Day.
(b) Monthly Servicer's Certificate. Unless otherwise stated in the
------------------------------
related Indenture Supplement with respect to any Series, on each Determination
Date, the Servicer shall forward to the Indenture Trustee, the Paying Agent, any
Rating Agency and any Enhancement Provider a certificate of a Servicing Officer
substantially in the form of Exhibit C.
---------
Section 3.5. Annual Servicer's Certificate. Unless the Servicer has
-----------------------------
been relieved of all of its obligations under this Agreement because the final
Series has been repaid during the prior calendar year, the Servicer will deliver
to the Indenture Trustee, any Enhancement Provider and any Rating Agency on or
before April 30 of each calendar year, beginning with April 30, 2002, an
Officer's Certificate substantially in the form of Exhibit D stating that (a) a
---------
review of the activities of the Servicer during the preceding calendar year (or,
with respect to the certificate to be delivered on April 30, 2002, since the
Issuer's inception) and of its performance under this Agreement was made under
the supervision of the officer signing such certificate and (b) to the best of
such officer's knowledge, based on such review, the Servicer has fully performed
all its obligations under this Agreement throughout such period, or, if there
has been a default in the performance of any such obligation, specifying each
such default known to such officer and the nature and status thereof. A copy of
such certificate may be obtained by any Noteholder by a request in writing to
the Indenture Trustee addressed to the Corporate Trust Office.
Section 3.6. Annual Independent Public Accountants' Servicing Report.
-------------------------------------------------------
25
(a) Unless the Servicer has been relieved of all of its obligations
under this Agreement because the final Series has been repaid during the prior
calendar year, on or before April 30 of each calendar year after the year during
which the FCMT Termination Date occurs, the Servicer shall cause KPMG LLP or
another firm of nationally recognized independent public accountants (who may
also render other services to the Servicer or Seller) to furnish a report
covering the preceding annual period to the effect that such accountants have
applied certain agreed-upon procedures to certain documents and records relating
to the servicing of Accounts under this Agreement (and Pooling and Servicing
Agreement, if applicable), compared the information contained in the Servicer's
certificates (excluding Servicer's certificates for any Series that has been
repaid during the prior calendar year) delivered during the period covered by
such report (which shall be the period from January 1, to and including December
31 of such calendar year) with such documents and records in each case as
specified in Exhibit E. In addition, each report shall set forth the agreed-upon
---------
procedures performed. A copy of such report may be obtained by any Noteholder by
a request in writing to the Indenture Trustee addressed to the Corporate Trust
Office. In addition, the Servicer shall cause such accountants to furnish a copy
of such report to each Rating Agency and to each Enhancement Provider.
(b) On or before April 30 of each calendar year, beginning with April
30, 2002, the Servicer shall cause KPMG LLP or another firm of nationally
recognized independent public accountants (who may also render other services to
the Servicer or Seller) to furnish a report to the Indenture Trustee to the
effect that they have compared the mathematical calculations of each amount set
forth in the monthly certificates forwarded by the Servicer pursuant to Section
-------
3.4(b) during the period covered by such report (which shall be the period from
------
January 1, to and including December 31 of such calendar year) with the
Servicer's computer reports which were the source of such amounts and that on
the basis of such comparison, such accountants are of the opinion that such
amounts are in agreement, except for such exceptions as they believe to be
immaterial and such other exceptions as shall be set forth in such statement. A
copy of such report may be obtained by any Noteholder by a request in writing to
the Owner Trustee addressed to the Corporate Trust Office. In addition, the
Servicer shall cause such accountants to furnish a copy of such report to each
Rating Agency and to each Enhancement Provider.
Section 3.7. Tax Treatment. Seller has structured this Agreement and
-------------
the Notes to facilitate a secured, credit-enhanced financing on favorable terms
with the intention that the Notes will constitute indebtedness of Seller for
federal income and state and local tax purposes; and Seller and each Noteholder
by acceptance of its Note agrees to recognize and report the Notes as
indebtedness of Seller for purposes of federal, state and local income or
franchise taxes and any other tax imposed on or measured by income, and to
report all receipts and payments relating thereto in a manner that is consistent
with such characterization.
26
Section 3.8. Notices to Seller. In the event that FCNB is no longer
-----------------
acting as Servicer, any Successor Servicer appointed pursuant to Section 7.2
-----------
shall deliver or make available to Seller each certificate and report required
to be prepared, forwarded or delivered thereafter pursuant to Sections 3.4, 3.5
------------ ---
and 3.6.
---
Section 3.9. Reports to the Commission. The Servicer shall, on behalf
-------------------------
of the Issuer, cause to be filed with the Commission any periodic reports
required to be filed under the provisions of the Securities Exchange Act of
1934, and the rules and regulations of the Commission thereunder. Seller shall,
at its own expense, cooperate in any reasonable request of the Servicer in
connection with such filings. The Issuer agrees to cooperate with the Servicer
in connection with such filings.
ARTICLE IV
OTHER MATTERS RELATING TO SELLER
Section 4.1. Liability of Seller. Seller shall be liable in accordance
-------------------
herewith to the extent, and only to the extent, of the obligations specifically
undertaken by Seller hereunder.
Section 4.2. Merger or Consolidation of, or Assumption of the
------------------------------------------------
Obligations of, Seller etc.
--------------------------
(a) Seller shall not consolidate with or merge into any other Person 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
Seller is merged or the Person which acquires by conveyance or transfer
the properties and assets of Seller substantially as an entirety shall
be, if Seller is not the surviving entity, organized and existing under
the laws of the United States of America or any State or the District
of Columbia and shall expressly assume, by an agreement supplemental
hereto, executed and delivered to the Owner Trustee, in form
satisfactory to the Owner Trustee, the performance of every covenant
and obligation of Seller, as applicable hereunder, and shall benefit
from all the rights granted to Seller, as applicable hereunder. To the
extent that any right, covenant or obligation of Seller, as applicable
hereunder, is inapplicable to the successor entity, such successor
entity shall be subject to such covenant or obligation, or benefit from
such right, as would apply, to the extent practicable, to such
successor entity. In furtherance hereof, in applying this Section 4.2
-----------
to a successor entity, Section 6.1 hereof shall be applied by reference
-----------
to events of involuntary liquidation, receivership or conservatorship
applicable to such successor entity as such be set forth in the
officer's certificate described in Section 4.2(a)(ii);
------------------
27
(ii) Seller shall have delivered to the Indenture Trustee an
Officer's Certificate of Seller and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance or transfer and such
supplemental agreement comply with this Section 4.2 and that all conditions
-----------
precedent herein provided for relating to such transaction have been
complied with and, in the case of the Opinion of Counsel, that such
supplemental agreement is legal, valid and binding with respect to Seller;
and
(iii) Seller shall have delivered notice of such consolidation,
merger, conveyance or transfer to each Rating Agency, and the Rating Agency
Condition shall have been satisfied; it being understood that a sale,
transfer, assignment, participation, pledge or other disposition of the
Seller Interest or the issuance of a Supplemental Certificate permitted by
Section 3.4 of the Trust Agreement shall not be deemed to be a conveyance
-----------
or transfer of the Seller's property substantially as an entirety for
purposes of this Section 4.2.
-----------
it being understood that a sale, transfer, assignment, participation, pledge or
other disposition of the Seller Interest or the issuance of a Supplemental
Certificate permitted by Section 3.4 of the Trust Agreement shall not be deemed
to be a conveyance or transfer of the Seller's property substantially as an
entirety for purposes of this Section 4.2.
-----------
(b) The obligations of Seller hereunder shall not be assignable nor shall
any Person succeed to the obligations of Seller hereunder except for mergers,
consolidations, assumptions or transfers in accordance with the provisions of
the foregoing paragraph.
Section 4.3. Limitation on Liability of Seller. Neither Seller nor any of
---------------------------------
the directors or officers or employees or agents of Seller shall be under any
liability to the Issuer, the Owner Trustee, the Noteholders or any other Person
for any action taken or for refraining from the taking of any action pursuant to
this Agreement whether arising from express or implied duties under this
Agreement; provided, however, that this provision shall not protect Seller or
-------- -------
any such person against any liability which would otherwise be imposed by reason
of willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of its willful misconduct hereunder; and provided, further,
-------- -------
that Seller shall be liable for any actual damages resulting directly from
Seller's material failure to perform any of its obligations under this
Agreement, but only if and to the extent that another remedy is not provided for
and available hereunder. Seller and any director or officer or employee or agent
of Seller may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. Notwithstanding anything to the contrary in this Agreement or any
other Transaction Document, any payment by the Seller pursuant to this Section
-------
4.3 shall only be made to the extent the Seller has funds available for such
---
purpose after
28
amounts payable to Securityholders (as defined in the Receivables Purchase
Agreement) have been paid in full. Each party hereto agrees that the
failure to make such payment shall not give rise to any claim against the
Seller.
ARTICLE V
OTHER MATTERS RELATING TO THE SERVICER
Section 5.1. Liability of the Servicer. The Servicer shall be liable
-------------------------
in accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer in such capacity herein.
Section 5.2. Merger or Consolidation of, or Assumption of the
------------------------------------------------
Obligations of, the Servicer. The Servicer shall not consolidate with or
----------------------------
merge into any other Person or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(a) the Person formed by such consolidation or into which
the Servicer is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Servicer substantially as an
entirety shall be a corporation or a banking association organized and
existing under the laws of the United States of America or any State
or the District of Columbia and, if the Servicer is not the surviving
entity, shall expressly assume, by an agreement supplemental hereto,
executed and delivered to the Owner Trustee in form satisfactory to
the Owner Trustee, the performance of every covenant and obligation of
the Servicer hereunder;
(b) the Servicer has delivered to the Indenture Trustee and
each Enhancement Provider an Officer's Certificate and an Opinion of
Counsel each stating that such consolidation, merger, conveyance or
transfer and such supplemental agreement comply with this Section 5.2
-----------
and that all conditions precedent herein provided for relating to such
transaction have been complied with; and
(c) the Servicer shall have delivered notice of such
consolidation, merger, conveyance or transfer to each of the Rating
Agencies;
it being understood that a sale, transfer, assignment, participation, pledge or
other disposition of the Seller Interest or the issuance of a Supplemental
Certificate permitted by Section 3.4 of the Trust Agreement shall not be deemed
to be a conveyance or transfer of the Servicer's property substantially as an
entirety for purposes of this Section 5.2.
-----------
Section 5.3. Limitation on Liability of the Servicer and Others.
--------------------------------------------------
Except as provided in Section 5.4 with respect to the Issuer and the Owner
-----------
Trustee and Section
29
6.7 of the Indenture with respect to the Indenture Trustee, neither the
Servicer nor any of the directors or officers or employees or agents of the
Servicer shall be under any liability to the Issuer, the Owner Trustee, the
Indenture Trustee, the Noteholders or any other Person for any action taken
or for refraining from the taking of any action in its capacity as Servicer
pursuant to this Agreement; provided, however, that this provision shall
not protect the Servicer or any such Person against any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties or by reason of its willful
misconduct hereunder. The Servicer and any director or officer or employee
or agent of the Servicer may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Servicer shall not be under any obligation
to appear in, prosecute or defend any legal action which does not arise out
of its activities in servicing the Receivables in accordance with this
Agreement which in its reasonable opinion may involve it in any expense or
liability.
Section 5.4. Indemnification of the Issuer and the Owner Trustee. The
---------------------------------------------------
Servicer shall indemnify, defend and hold harmless the Issuer and the Owner
Trustee and its officers, directors, employees and agents from and against
any loss, liability, expense, damage or injury suffered or sustained by
reason of any acts, omissions or alleged acts or omissions arising out of
activities of the Issuer or the Owner Trustee pursuant to the Transaction
Documents, including those arising from acts or omissions of the Servicer
pursuant to this Agreement, including, but not limited to any judgment,
award, settlement, reasonable attorneys' fees and other costs or expenses
incurred in connection with the defense of any actual or threatened action,
proceeding or claim; provided, however, that the Servicer shall not
-------- -------
indemnify the Issuer or the Owner Trustee if such acts, omissions or
alleged acts or omissions constitute fraud, gross negligence or breach of
fiduciary duty by the Owner Trustee; provided further, that the Servicer
-------- -------
shall not indemnify the Issuer, any Noteholders or any Note Owners for any
liabilities, costs or expenses of the Issuer with respect to any action
taken by the Indenture Trustee at the request of such Noteholders; provided
--------
further, that the Servicer shall not indemnify the Issuer, any Noteholders
-------
or any Note Owners as to any losses, claims or damages incurred by any of
them in their capacities as investors, including losses incurred as a
result of defaulted Receivables or Receivables which are written off as
uncollectible; and provided further, that the Servicer shall not indemnify
-------- -------
the Issuer, or any Noteholders for any liabilities, costs or expenses of
the Issuer, or such Noteholders arising under any tax law, including any
federal, state or local income or franchise taxes or any other tax imposed
on or measured by income (or any interest or penalties with respect thereto
or arising from a failure to comply therewith) required to be paid by the
Issuer, or such Noteholders in connection herewith to any taxing authority.
The provisions of this indemnity shall run directly to and be enforceable
by an injured party subject to the limitations hereof.
Any indemnification pursuant to this Section shall not be payable from
the assets of the Issuer.
30
The obligations of the Servicer under this Section 5.4 shall survive
-----------
the termination of the Issuer and the resignation or removal of the Owner
Trustee.
The Servicer shall indemnify the Indenture Trustee as provided in
Section 6.7 of the Master Indenture.
Section 5.5. The Servicer Not to Resign. The Servicer shall not
--------------------------
resign from the obligations and duties hereby imposed on it except upon
determination that (i) the performance of its duties hereunder is or
becomes impermissible under applicable law and (ii) there is no reasonable
action which the Servicer could take to make the performance of its duties
hereunder permissible under applicable law. Any such determination
permitting the resignation of the Servicer shall be evidenced as to clause
(i) by an Opinion of Counsel to such effect delivered to the Indenture
Trustee. No such resignation shall become effective until the Indenture
Trustee or a Successor Servicer shall have assumed the responsibilities and
obligations of the Servicer in accordance with Section 7.2. If the
Indenture Trustee is unable within 120 days of the date of such
determination to appoint a Successor Servicer, the Indenture Trustee shall
serve as Successor Servicer hereunder. Notice of any resignation by the
Servicer shall be given to each Rating Agency by the resigning Servicer.
Section 5.6. Access to Certain Documentation and Information
-----------------------------------------------
Regarding the Receivables. The Servicer shall provide to the Indenture
-------------------------
Trustee access to the documentation regarding the Accounts and the
Receivables in such cases where the Indenture Trustee is required in
connection with the enforcement of the rights of the Noteholders, or by
applicable statutes or regulations to review such documentation, such
access being afforded without charge but only (i) upon reasonable request,
(ii) during normal business hours, (iii) subject to the Servicer's normal
security and confidentiality procedures and (iv) at offices designated by
the Servicer. Nothing in this Section 5.6 shall derogate from the
-----------
obligation of Seller, the Indenture Trustee or the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors
and the failure of the Servicer to provide access as provided in this
Section 5.6 as a result of such obligation shall not constitute a breach of
-----------
this Section 5.6.
-----------
Section 5.7. Delegation of Duties. It is understood and agreed by the
--------------------
parties hereto that the Servicer may delegate certain of its duties
hereunder to First Data Resources Inc., a Delaware corporation. In
addition, in the ordinary course of business, the Servicer may at any time
delegate any duties hereunder to any other Person who agrees to conduct
such duties in accordance with the Cardholder Guidelines. Any such
delegations shall not relieve the Servicer of its liability and
responsibility with respect to such duties, and shall not constitute a
resignation within the meaning of Section 5.5. The Servicer shall notify
-----------
each Rating Agency of any material delegation of its duties not consistent
with its normal practices as of the date hereof.
31
Section 5.8. Examination of Records. The Servicer shall clearly and
----------------------
unambiguously identify each Account (including any Additional Account
designated pursuant to Section 2.6) in its computer or other records to
reflect that the Receivables arising in such Account have been transferred
by Seller to the Issuer pursuant to this Agreement. The Servicer shall,
prior to the sale or transfer to a third party of any receivable held in
its custody, examine its computer and other records to determine that such
receivable is not a Receivable.
ARTICLE VI
INSOLVENCY EVENTS
Section 6.1. Rights upon the Occurrence of an Insolvency Event. If
-------------------------------------------------
Seller shall consent or fail to object to the appointment of a bankruptcy
trustee or conservator, receiver or liquidator in any bankruptcy proceeding
or other insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to Seller of or relating
to all or substantially all of Seller's property, or the commencement of an
action seeking a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
bankruptcy trustee or conservator, receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up, insolvency, bankruptcy,
reorganization, conservatorship, receivership or liquidation of such
entity's affairs, or notwithstanding an objection by Seller any such action
shall have remained undischarged or unstayed for a period of sixty (60)
days or upon entry of any order or decree providing for such relief; or
Seller shall admit in writing its inability to pay its debts generally as
they become due, file, or consent or fail to object (or object without
dismissal of any such filing within sixty (60) days of such filing) to the
filing of, a petition to take advantage of any Debtor Relief Law, make an
assignment for the benefit of its creditors (any such act or occurrence
with respect to any Person being an "Insolvency Event"), Seller shall on
the day any such Insolvency Event occurs immediately cease to transfer
Principal Receivables to the Issuer and shall promptly give notice to the
Indenture Trustee, the Owner Trustee and the Rating Agencies thereof.
ARTICLE VII
SERVICER DEFAULTS
Section 7.1. Servicer Defaults. If any one of the following events (a
-----------------
"Servicer Default") shall occur and be continuing after the FCMT
----------------
Termination Date:
(a) any failure by the Servicer to make any payment,
transfer or deposit or to give instructions or notice to the Indenture
Trustee to make such payment, transfer or deposit or to make any
required drawing, withdrawal, or payment under any Enhancement
required to be made by the Servicer on or
32
before the date occurring five Business Days after the date such
payment, transfer, deposit, withdrawal or drawing, or such instruction
or notice is required to be made or given by the Servicer, as the case
may be, under the terms of this Agreement, the Indenture or any
Indenture Supplement; or
(b) failure on the part of the Servicer duly to observe or
perform in any material respect any other covenants or agreements of
the Servicer set forth in this Agreement which has a material adverse
effect on the Noteholders, which continues unremedied for a period of
60 days after the date on which written notice of such failure
requiring the same to be remedied shall have been given to the
Servicer by the Indenture Trustee, or to the Servicer and the
Indenture Trustee by the Noteholders holding not less than 10% of the
outstanding principal amount of any Series adversely affected thereby
and continues to materially adversely affect such Noteholders for such
period; or the Servicer's delegation of its duties under this
Agreement except as permitted by Section 5.7; or
-----------
(c) any representation, warranty or certification made by
the Servicer in this Agreement or in any certificate delivered
pursuant to this Agreement shall prove to have been incorrect when
made, which has a material adverse effect on the rights of the
Noteholders and which continues to be incorrect in any material
respect for a period of 60 days after the date on which written notice
of such failure requiring the same to be remedied shall have been
given to the Servicer by the Indenture Trustee, or to the Servicer and
the Indenture Trustee by the Noteholders holding not less than 10% of
the outstanding principal amount of any Series adversely affected
thereby and continues to materially adversely affect such Noteholders
for such period, or if such failure cannot be cured within such 60-day
period owing to causes beyond the control of the Servicer, if the
Servicer shall fail to proceed promptly to cure the same and prosecute
the curing of such failure with diligence and continuity;
(d) the Servicer shall (i) become insolvent, (ii) fail to
pay its debts generally as they become due, (iii) voluntarily seek,
consent to, or acquiesce in the benefit or benefits of any Debtor
Relief Law, or (iv) become a party to (or be made the subject of) any
proceeding provided for by any Debtor Relief Law, other than as a
creditor or claimant, and, in the event such proceeding is
involuntary, the petition instituting same is not dismissed within 60
days after its filing; or
(e) with respect to any Series, any other event specified in
the Indenture Supplement for such Series,
then, so long as such Servicer Default shall not have been remedied, either
the Indenture Trustee, or the Noteholders holding more than 50% of the
Outstanding
33
Amount, by notice then given in writing to the Servicer (and to the
Indenture Trustee if given by the Noteholders) (a "Termination Notice"),
------------------
may terminate all of the rights and obligations of the Servicer as Servicer
under this Agreement and in and to the Receivables and the proceeds thereof
(other than its rights and interest, if any, as holder of the Seller
Interest or any Notes). After receipt by the Servicer of such Termination
Notice, and on the date that a Successor Servicer shall have been appointed
by the Indenture Trustee pursuant to Section 7.2, all authority and power
-----------
of the Servicer under this Agreement shall pass to and be vested in a
Successor Servicer; and the Indenture Trustee is hereby authorized and
empowered (upon the failure of the Servicer to cooperate) to execute and
deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all
documents and other instruments upon the failure of the Servicer to execute
or deliver such documents or instruments, and to do and accomplish all
other acts or things necessary or appropriate to effect the purposes of
such transfer of servicing rights. The Servicer agrees to cooperate with
the Indenture Trustee and such Successor Servicer in effecting the
termination of the responsibilities and rights of the Servicer to conduct
servicing hereunder, including the transfer to such Successor Servicer of
all authority of the Servicer to service the Receivables provided for under
this Agreement, including all authority over all Collections which shall on
the date of transfer be held by the Servicer for deposit, or which have
been deposited by the Servicer, in any Collection Account or Series
Account, or which shall thereafter be received with respect to the
Receivables, and in assisting the Successor Servicer and in enforcing all
rights to Insurance Proceeds. The Servicer shall promptly transfer its
electronic records relating to the Receivables to the Successor Servicer in
such electronic form as the Successor Servicer may reasonably request and
shall promptly transfer to the Successor Servicer all other records,
correspondence and documents necessary for the continued servicing of the
Receivables in the manner and at such times as the Successor Servicer shall
reasonably request. To the extent that compliance with this Section 7.1
-----------
shall require the Servicer to disclose to the Successor Servicer
information of any kind which the Servicer reasonably deems to be
confidential, the Successor Servicer shall be required to enter into such
customary licensing and confidentiality agreements as the Servicer shall
deem necessary to protect its interest. The Servicer shall, on the date of
any servicing transfer, transfer all of its rights and obligations, if any,
in respect of any Enhancement to the Successor Servicer.
Section 7.2. Indenture Trustee to Act; Appointment of Successor. (a)
--------------------------------------------------
On and after the receipt by the Servicer of a Termination Notice pursuant
to Section 7.1, the Servicer shall continue to perform all servicing
-----------
functions under this Agreement until the date specified in the Termination
Notice or otherwise specified by the Indenture Trustee in writing or, if no
such date is specified in such Termination Notice or otherwise specified by
the Indenture Trustee, until a date mutually agreed upon by the Servicer
and the Indenture Trustee. The Indenture Trustee shall as promptly as
possible after the giving of a Termination Notice appoint (with the consent
of the Noteholders holding greater than 50% of the outstanding principal
amount of each Series, and with prior written notice to the Rating
Agencies) a successor servicer (the
34
"Successor Servicer"), and such Successor Servicer shall accept its
------------------
appointment by a written assumption in a form acceptable to the Indenture
Trustee. The Indenture Trustee may obtain bids from any potential successor
servicer. If the Indenture Trustee is unable to obtain any bids from any
potential successor servicer and the Servicer delivers an Officer's
Certificate to the effect that it cannot in good faith cure the Servicer
Default which gave rise to a transfer of servicing, then the Owner Trustee
shall offer Seller the right to accept retransfer of all the Receivables
and Seller may accept retransfer of all the Receivables, provided, however,
-------- -------
that if the long-term unsecured debt obligations of Seller are not rated at
the time of such purchase at least Baa3 by Moody's and BBB- by Standard &
Poor's, no such retransfer shall occur unless Seller shall deliver an
Opinion of Counsel reasonably acceptable to the Indenture Trustee that such
retransfer would not constitute a fraudulent conveyance of Seller. The
retransfer deposit amount for such a retransfer shall be equal to the
higher of the sum of (i) the outstanding principal balance of the Notes,
plus accrued interest thereon, at the Note Rate, through the date of
retransfer and (ii) the average bid price quoted by two recognized dealers
for a similar security rated in the highest rating category by Moody's and
Standard & Poor's and having a remaining maturity substantially similar to
the remaining maturity of the Notes. In the event that a Successor Servicer
has not been appointed and has not accepted its appointment at the time
when the Servicer ceases to act as Servicer, the Indenture Trustee without
further action shall automatically be appointed the Successor Servicer.
Notwithstanding the above, the Indenture Trustee shall, if it is legally
unable so to act, petition a court of competent jurisdiction to appoint any
established financial institution having a net worth of not less than
$50,000,000 and whose regular business includes the servicing of
installment sales charge, credit and/or credit card account receivables as
the Successor Servicer hereunder. Notwithstanding anything else herein to
the contrary, in no event shall the Indenture Trustee be liable for any
servicing fee.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing
functions under this Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions hereof, and all references in this
Agreement to the Servicer shall be deemed to refer to the Successor
Servicer. Any Successor Servicer, by its acceptance of its appointment,
will automatically agree to be bound by the terms and provisions of any
Enhancement to the extent that such terms apply to the Servicer. Any
sub-servicing agreement shall be assigned to the Successor Servicer.
(c) In connection with such appointment and assumption, the Indenture
Trustee shall be entitled to such compensation, or may make such
arrangements for the compensation of the Successor Servicer out of
Collections, as it and such Successor Servicer shall agree; provided,
--------
however, that no such compensation shall be in excess of the Monthly
-------
Servicing Fees permitted to the Servicer pursuant to Section 3.2. The
-----------
Holder of the Seller Interest agrees that if the Servicer is terminated
hereunder, it will agree, at the request of the Indenture Trustee or any
Successor
35
Servicer, to deposit a portion of the Collections in respect of Finance Charge
Receivables that it is entitled to receive pursuant to the Indenture, to pay its
share of the compensation of the Successor Servicer. The Successor Servicer
shall have no liability for any actions or failure to act on the part of the
Servicer.
(d) All authority and power granted to the Successor Servicer under this
Agreement shall automatically cease and terminate upon termination of the Issuer
pursuant to the Trust Agreement and shall pass to and be vested in Seller and,
Seller is hereby authorized and empowered to execute and deliver, on behalf of
the Successor Servicer, as attorney-in-fact or otherwise, all documents and
other instruments, and to do and accomplish all other acts or things necessary
or appropriate to effect the purposes of such transfer of servicing rights. The
Successor Servicer agrees to cooperate with Seller in effecting the termination
of the responsibilities and rights of the Successor Servicer to conduct
servicing on the Receivables. The Successor Servicer shall transfer its
electronic records relating to the Receivables to Seller in such electronic form
as Seller may reasonably request and shall transfer all other records,
correspondence and documents to Seller in the manner and at such times as Seller
shall reasonably request. To the extent that compliance with this Section 7.2
-----------
shall require the Successor Servicer to disclose to Seller information of any
kind which the Successor Servicer deems to be confidential, Seller shall be
required to enter into such customary licensing and confidentiality agreements
as the Successor Servicer shall deem necessary to protect its interests.
Section 7.3. Notification to Noteholders. Upon the occurrence of any
---------------------------
Servicer Default, the Servicer shall give prompt written notice thereof to a
Trustee Officer of the Indenture Trustee and the Indenture Trustee shall give
notice to the Noteholders at their respective addresses appearing in the Note
Register. Upon any termination or appointment of a Successor Servicer pursuant
to this Article VII, the Indenture Trustee shall give prompt written notice
-----------
thereof to Noteholders at their respective addresses appearing in the Note
Register. A copy of any notice given pursuant to this Section 7.3 shall be
-----------
delivered to each Rating Agency.
ARTICLE VIII
TERMINATION
Section 8.1. Termination of Agreement. This Agreement and the respective
------------------------
obligations and responsibilities of the Issuer, Seller and the Servicer under
this Agreement shall terminate, except with respect to the duties described in
Section 5.4, on the Trust Termination Date.
-----------
36
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1. Amendment; Waiver of Past Defaults.
----------------------------------
(a) This Agreement may be amended from time to time by the Servicer,
Seller and the Issuer, without the consent of any of the Indenture Trustee or
any Noteholder to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other provisions herein or to add any
other provisions with respect to matters or questions raised under this
Agreement which shall not be inconsistent with the provisions of this Agreement;
provided, however, that such action shall not adversely affect in any material
-------- -------
respect the interests of any of the Noteholders. Additionally, this Agreement
may be amended from time to time by the Servicer, the Seller and the Issuer by a
written instrument signed by each of them, without the consent of the Indenture
Trustee or any of the Noteholders; provided that (i) Seller shall have delivered
--------
to the Indenture Trustee and the Owner Trustee an Officer's Certificate, dated
the date of any such Amendment, stating that Seller reasonably believes that
such amendment will not have an Adverse Effect and (ii) the Rating Agency
Condition shall have been satisfied with respect to any such amendment.
Additionally, notwithstanding the preceding sentence, this Agreement will be
amended by the Servicer and the Issuer at the direction of Seller without the
consent of the Indenture Trustee or any of the Noteholders or Series Enhancers
to add, modify or eliminate such provisions as may be necessary or advisable in
order to enable all or a portion of the Issuer (1) to qualify as, and to permit
an election to be made to cause the Issuer to be treated as, a "financial asset
securitization investment trust" as described in the provisions of Section 860L
of the Code, and (2) to avoid the imposition of state or local income or
franchise taxes imposed on the Issuer's property or its income; provided,
--------
however, that (A) Seller delivers to the Indenture Trustee and the Owner Trustee
-------
an Officer's Certificate to the effect that the proposed amendments meet the
requirements set forth in this Section, (B) the Rating Agency Condition has been
satisfied, and (C) such amendment does not affect the rights, duties or
obligations of the Indenture Trustee or the Owner Trustee hereunder. The
amendments which Seller may make without the consent of Noteholders or Series
Enhancers pursuant to the preceding sentence may include the addition of a
Seller.
(b) This Agreement may also be amended from time to time by the Servicer,
Seller and the Issuer, with the consent of the Noteholders holding more than 66
2/3% of the Outstanding principal amount of the Notes of each Series affected
thereby for which Seller has not delivered an Officer's Certificate stating that
there is no Adverse Effect, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders; provided, however,
-------- -------
that no such amendment shall (i) reduce in any manner the amount of or delay the
timing of any distributions (changes in Pay Out Events or Events of Default that
decrease the likelihood of the
37
occurrence thereof shall not be considered delays in the timing of distributions
for purposes of this clause) to be made to Noteholders or deposits of amounts to
be so distributed or the amount available under any Series Enhancement without
the consent of each affected Noteholder, (ii) change the definition of or the
manner of calculating the interest of any Noteholder without the consent of each
affected Noteholder or (iii) reduce the aforesaid percentage required to consent
to any such amendment without the consent of each Noteholder or (iv) adversely
affect the rating of any Series or Class by any Rating Agency without the
consent of the Noteholders of such Series or Class holding more than 66 2/3% of
the Outstanding principal amount of the Notes of such Series or Class affected
thereby.
(c) Promptly after the execution of any such amendment or consent (other
than an amendment pursuant to paragraph (a)), the Issuer shall furnish
notification of the substance of such amendment to the Indenture Trustee and
each Noteholder, and the Servicer shall furnish notification of the substance of
such amendment to each Rating Agency and each Series Enhancer.
(d) It shall not be necessary for the consent of Noteholders under this
Section 9.1 to approve the particular form of any proposed amendment, but it
-----------
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Noteholders shall be subject to such reasonable
requirements as the Indenture Trustee may prescribe.
(e) Notwithstanding anything in this Section 9.1 to the contrary, no
-----------
amendment may be made to this Agreement which would adversely affect in any
material respect the interests of any Series Enhancer without the consent of
such Series Enhancer.
(f) Any Indenture Supplement executed in accordance with the provisions
of Article X of the Indenture shall not be considered an amendment of this
---------
Agreement for the purposes of this Section 9.1.
-----------
(g) The Noteholders holding 66 2/3% or more of the Outstanding principal
amount of the Notes of each Series or, with respect to any Series with two (2)
or more Classes, of each Class (or, with respect to any default that does not
relate to all Series, 66 2/3% or more of the principal amount of the Outstanding
Notes of each Series to which such default relates or, with respect to any such
Series with two or more Classes, of each Class) may, on behalf of all
Noteholders, waive any default by Seller or the Servicer in the performance of
their obligations hereunder and its consequences, except the failure to make any
distributions required to be made to Noteholders or to make any required
deposits of any amounts to be so distributed. Upon any such waiver of a past
default, such default shall cease to exist, and any default arising therefrom
shall be deemed to have been remedied for every purpose of this Agreement. No
such
38
waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
(h) The Owner Trustee may, but shall not be obligated to, enter into any
such amendment which affects the Owner Trustee's rights, duties or immunities
under this Agreement or otherwise. In connection with the execution of any
amendment hereunder, the Owner Trustee shall be entitled to receive the Opinion
of Counsel described in Section 9.2(d).
--------------
Section 9.2. Protection of Right, Title and Interest to Issuer.
-------------------------------------------------
(a) Seller shall cause this Agreement, all amendments and supplements
hereto and all financing statements and continuation statements and any other
necessary documents covering the Indenture Trustee's and the Issuer's right,
title and interest to the Issuer to be promptly recorded, registered and filed,
and at all times to be kept recorded, registered and filed, all in such manner
and in such places as may be required by law fully to preserve and protect the
right, title and interest of the Indenture Trustee, Noteholders and the Issuer
hereunder to all property comprising the Issuer. Seller shall deliver to the
Indenture Trustee file-stamped copies of, or filing receipts for, any document
recorded, registered or filed as provided above, as soon as available following
such recording, registration or filing. Seller shall cooperate fully with the
Servicer in connection with the obligations set forth above and will execute any
and all documents reasonably required to fulfill the intent of this paragraph.
(b) Within thirty (30) days after the Seller makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with paragraph (a) seriously
misleading within the meaning of Section 9-506 (or any comparable provision) of
the applicable UCC, the Seller shall give the Indenture Trustee notice of any
such change and shall file such financing statements or amendments as may be
necessary to continue the perfection of the Issuer's security interest or
ownership interest in the Receivables and the proceeds thereof.
(c) Each of the Seller and the Servicer shall give the Indenture Trustee
prompt notice of any relocation of its chief principal executive office or any
change in the jurisdiction under whose laws it is organized and whether, as a
result of such relocation or change, the applicable provisions of the applicable
UCC would require the filing of any amendment of any previously filed financing
or continuation statement or of any new financing statement and shall file such
financing statements or amendments as may be necessary to perfect or to continue
the perfection of the Issuer's security interest in the Receivables and the
proceeds thereof. Each of Seller and Servicer shall at all times maintain its
chief principal executive offices within the United States and shall at all
times be organized under the laws of a jurisdiction located within the United
States.
39
(d) Seller shall deliver to the Indenture Trustee (i) upon the execution
and delivery of each amendment of this Agreement, an Opinion of Counsel to the
effect specified in Exhibit F-1; (ii) on each date specified in Section
----------- -------
2.6(c)(vii) with respect to Additional Accounts added pursuant to Section 2.6(a)
----------- --------------
or (b), an Opinion of Counsel substantially in the form of Exhibit F-2; and
--- -----------
(iii) on or before April 30 of each year following the year in which the FCMT
Termination Date occurs, an Opinion of Counsel substantially in the form of
Exhibit F-3.
-----------
Section 9.3. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
-------------
WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.4. Notices; Payments.
-----------------
(a) All demands, notices, instructions, directions and communications
(collectively, "Notices") 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 (i) in the
case of Seller, to First Consumers Credit Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attn.: Treasurer, with a copy to
Spiegel, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, Attn.:
Treasurer, (ii) and the Servicer, to First Consumers National Bank, ▇▇▇▇ ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attn: President, (iii) in the case of the
Issuer or the Owner Trustee, to the Corporate Trust Office, Attn: Corporate
Trust & Agency Services, with a copy to the Administrator, (iv) in the case of
the Rating Agency for a particular Series, the address, if any, specified in the
Indenture Supplement relating to such Series, and (v) to any other Person as
specified in the Indenture or any Indenture Supplement; or, as to each party, at
such other address or facsimile number as shall be designated by such party in a
written notice to each other party.
(b) Any Notice required or permitted to be given to a Holder of Registered
Notes shall be given by first-class mail, postage prepaid, at the address of
such Holder as shown in the Note Register. Any Notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Noteholder receives such Notice. In addition, in the
case of any Series or Class with respect to which any Notes are outstanding, any
Notice required or permitted to be given to Noteholders of such Series or Class
shall be published in an Authorized Newspaper within the time period prescribed
in this Agreement.
Section 9.5. Severability of Provisions. If any one or more of the
--------------------------
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such provisions shall be deemed
severable from the remaining
40
provisions of this Agreement and shall in no way affect the validity or
enforceability of the remaining provisions or of the Notes or the rights of the
Noteholders.
Section 9.6. Further Assurances. Seller and the Servicer agree 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 the Owner Trustee and the
Indenture Trustee more fully to effect the purposes of this Agreement, including
the execution of any financing statements or continuation statements relating to
the Receivables for filing under the provisions of the UCC of any applicable
jurisdiction.
Section 9.7. No Waiver; Cumulative Remedies. No failure to exercise and
------------------------------
no delay in exercising, on the part of the Owner Trustee, the Indenture Trustee
or the Noteholders, any right, remedy, power or privilege under this Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege under this Agreement preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges provided under this
Agreement are cumulative and not exhaustive of any rights, remedies, powers and
privileges provided by law.
Section 9.8. Counterparts. This Agreement 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 9.9. Third-Party Beneficiaries. This Agreement will inure to the
-------------------------
benefit of and be binding upon the parties hereto, the Indenture Trustee, the
Noteholders, and any Series Enhancer. Except as otherwise expressly provided in
this Agreement, no other Person will have any right or obligation hereunder.
Section 9.10. Actions by Noteholders.
----------------------
(a) Wherever in this Agreement a provision is made that an action may be
taken or a Notice given by Noteholders, such action or Notice may be taken or
given by any Noteholder, unless such provision requires a specific percentage of
Noteholders.
(b) Any Notice, request, authorization, direction, consent, waiver or
other act by the Noteholder shall bind such Holder and every subsequent Holder
of such Note and of any Note issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything done or omitted
to be done by the Owner Trustee, Seller or the Servicer in reliance thereon,
whether or not notation of such action is made upon such Note.
Section 9.11. Rule 144A Information. For so long as any of the Notes of
---------------------
any Series or Class are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Act, each of Seller, the Owner Trustee, the
Indenture Trustee, the
41
Servicer and any Series Enhancer agree to cooperate with each other to provide
to any Noteholders of such Series or Class and to any prospective purchaser of
Notes designated by such Noteholder, upon the request of such Noteholder or
prospective purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Securities Act.
Section 9.12. Merger and Integration. Except as specifically stated
----------------------
otherwise herein, this Agreement sets 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. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 9.13. No Bankruptcy Petition. (a) Each of Seller and Servicer,
----------------------
severally and not jointly, hereby covenants and agrees that, prior to the date
which is one (1) year and one (1) day after the payment in full of all Notes, it
will not institute against, or join any other Person in instituting against, the
Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under the laws of the United States or
any state of the United States.
(b) Each of Servicer and Issuer, severally and not jointly, hereby
covenants and agrees that, prior to the date which is one (1) year and one (1)
day after the payment in full of all Notes, it will not institute against, or
join any other Person in instituting against, the Seller any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceeding under the laws of the United States or any state of the
United States.
Section 9.14. Rights of Indenture Trustee. The Indenture Trustee shall
---------------------------
have herein the same rights, protections, indemnities and immunities as
specified in the Indenture.
Section 9.15. Rights of the Owner Trustee. Each of the parties hereto
---------------------------
acknowledges and agrees that this Agreement is being executed and delivered by
Bankers Trust Company not individually but solely and exclusively in its
capacity as Owner Trustee on behalf of First Consumers Credit Card Master Note
Trust for the purpose and with the intention of binding First Consumers Credit
Card Master Note Trust. No obligations or liabilities hereunder shall run
against Bankers Trust Company in its individual capacity or against its
properties or assets.
Section 9.16. Limited Recourse. Notwithstanding anything to the contrary
----------------
in this Agreement or any other Transaction Document, with respect to provisions
hereof in which the Seller has agreed that certain actions will be taken at the
Seller's expense, payment of any such expense shall only be made to the extent
the Seller has funds available for such purpose after amounts payable to
Securityholders (as defined in the Receivables Purchase Agreement) have been
paid in full. Each party hereto agrees
42
that the failure to make such payments beyond the extent available shall not
give rise to any claim against the Seller.
43
IN WITNESS WHEREOF, Seller, the Servicer and the Issuer have caused this
Transfer and Servicing Agreement to be duly executed by their respective
officers as of the day and year first above written.
FIRST CONSUMERS CREDIT
CORPORATION, as Seller
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
FIRST CONSUMERS NATIONAL
BANK, as Servicer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
FIRST CONSUMERS CREDIT CARD
MASTER NOTE TRUST, Issuer
By: BANKERS TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee on behalf of
the Issuer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Acknowledged and Accepted:
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Agent
First Consumers Credit Card Master Note Trust
Transfer and Servicing Agreement Signature Page
EXHIBIT A
to
TRANSFER AND SERVICING AGREEMENT
FORM OF ASSIGNMENT OF RECEIVABLES
IN ADDITIONAL ACCOUNTS
(As required by Section 2.6 of the Transfer and Servicing Agreement)
-----------
ASSIGNMENT No. __ OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of
_____________, by and among FIRST CONSUMERS CREDIT CORPORATION, a Delaware
corporation, as Seller (the "Seller") FIRST CONSUMERS NATIONAL BANK, a national
------
banking association, as Servicer (the "Servicer") and FIRST CONSUMERS CREDIT
--------
CARD MASTER NOTE TRUST (the "Issuer"), pursuant to the Transfer and Servicing
------
Agreement referred to below.
WITNESSETH
WHEREAS, the Seller, the Servicer and the Issuer are parties to the Transfer and
Servicing Agreement, dated as of March 1, 2001, and amended and restated as of
December 31, 2001 (the "Agreement");
---------
WHEREAS, pursuant to the Agreement, the Seller wishes to designate Additional
Accounts to be included as Accounts and to convey the Receivables of such
Additional Accounts (as each such term is defined in the Agreement), whether now
existing or hereafter created, to the Issuer; and
WHEREAS, the Issuer is willing to accept such designation and conveyance subject
to the terms and conditions hereof;
NOW, THEREFORE, the Seller, the Servicer and the Issuer hereby agree as
follows:
1. Defined Terms. All capitalized terms used herein shall have the meanings
-------------
ascribed to them in the Agreement unless otherwise defined herein.
"Addition Date" means, with respect to the Additional Accounts designated
-------------
hereby, ____________, 200__.
"Notice Date" means, with respect to the Additional Accounts designated hereby,
-----------
____________, ____, (which shall be a date on or prior to the fifth Business Day
prior to the Addition Date).
2. Designation of Additional Accounts. On or before the date hereof, the
----------------------------------
Seller will deliver to the Owner Trustee a computer file or microfiche list
containing a true and complete schedule identifying all such Additional Accounts
(the "Additional
----------
Exhibit A-1
Accounts") specifying for each such Additional Account, as of the Notice Date,
--------
its account number, the aggregate amount outstanding in such Account and the
aggregate amount of Principal Receivables outstanding in such Account, which
computer file or microfiche list shall supplement Schedule 1 to the Agreement.
----------
3. Conveyance of Receivables. (a) The Seller does hereby transfer, assign, set
-------------------------
over and otherwise convey, without recourse except as set forth in the Transfer
and Servicing Agreement, to the Issuer, all its right, title and interest in, to
and under the Receivables of such Additional Accounts existing at the close of
business on the Notice Date and thereafter created from time to time until the
termination of the Issuer, all Recoveries related thereto, all monies due or to
become due and all amounts received or receivable with respect thereto and all
proceeds thereof. The foregoing does not constitute and is not intended to
result in the creation or assumption by the Issuer, the Owner Trustee, the
Indenture Trustee, any Noteholders or any Series Enhancer of any obligation of
the Servicer, the Seller or any other Person in connection with the Accounts,
the Receivables or under any agreement or instrument relating thereto, including
any obligation to Obligors, merchant banks, merchants or clearance systems.
(b) The Seller agrees to record and file, at its own expense, financing
statements (and continuation statements when applicable) with respect to the
Receivables in Additional Accounts existing on the Notice Date and thereafter
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
sale and assignment of its interest in such Receivables to the Issuer, and to
deliver a file-stamped copy of each such financing statement or other evidence
of such filing to the Owner Trustee on or prior to the Addition Date. The Owner
Trustee shall be under no obligation whatsoever to file such financing or
continuation statements or to make any other filing under the applicable UCC in
connection with such sale and assignment.
(c) In connection with such sale, the Seller further agrees, at its own
expense, on or prior to the date of this Assignment, to indicate in the
appropriate computer files that Receivables created in connection with the
Additional Accounts and designated hereby have been conveyed to the Issuer
pursuant to the Agreement and this Assignment.
(d) The Seller does hereby grant to the Issuer a security interest in all
of its right, title and interest, whether now owned or hereafter acquired, in
and to the Receivables in the Additional Accounts existing on the Notice Date
and thereafter created, all Recoveries related thereto, all monies due or to
become due and all amounts received or receivable with respect thereto, all
money, accounts, general intangibles, chattel paper, instruments, documents,
goods, investment property, deposit accounts, certificates of deposit, letters
of credit, and advices of credit consisting of, arising from or related to the
foregoing, and all proceeds thereof. This Assignment constitutes a security
agreement under the applicable UCC.
Exhibit A-2
4. Acceptance by Issuer. The Issuer hereby acknowledges its acceptance of all
--------------------
right, title and interest to the property, existing on the Notice Date and
thereafter created, conveyed to the Issuer pursuant to Section 3(a) of this
------------
Assignment. The Issuer further acknowledges that, prior to or simultaneously
with the execution and delivery of this Assignment, the Seller delivered to the
Owner Trustee the computer file or microfiche list described in Section 2 of
---------
this Assignment.
5. Representations and Warranties of the Seller. The Seller hereby represents
--------------------------------------------
and warrants to the Issuer as of the Addition Date:
(a) Legal Valid and Binding Obligation. This Assignment constitutes a
----------------------------------
legal, valid and binding obligation of the Seller enforceable against the Seller
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, receivership or conservatorship, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and the rights of
creditors of national banking associations and except as such enforceability may
be limited by general principles of equity (whether considered in a suit at law
or in equity);
(b) Schedule 1. Schedule 1 to this Assignment and the computer file or
----------
microfiche list delivered pursuant to Section 2 of this Assignment is an
---------
accurate and complete listing in all material respects of all the Additional
Accounts as of the Addition Date and the information contained therein with
respect to the identity of such Additional Accounts and the Receivables existing
thereunder is true and correct in all material respects as of the Addition Date;
(c) Eligibility of Accounts. Each Additional Account designated hereby is
-----------------------
an Eligible Account;
(d) Selection Procedures. No selection procedures believed by the Seller to
---------------------
be materially adverse to the interests of the Noteholders were utilized in
selecting the Additional Accounts designated hereby;
(e) Insolvency. The Seller is not insolvent and, after giving effect to the
----------
conveyance set forth in Section 3 of this Assignment, will not be insolvent;
---------
(f) Security Interest. This Assignment constitutes (i) a valid transfer and
-----------------
assignment to the Issuer of all right, title and interest of the Seller in and
to Receivables now existing and hereafter created in the Additional Accounts
designated hereby, and all proceeds (as defined in the UCC as in effect in the
applicable jurisdiction) of such Receivables and Insurance Proceeds relating
thereto, and such Receivables and any Collections, Recoveries and other proceeds
thereof and Insurance Proceeds relating thereto will be held by the Issuer free
and clear of any Lien of any Person except for (x) Liens permitted under Section
-------
2.5(b) of the Transfer and Servicing Agreement and (y) the interest of the
------
Seller as holder of the
Exhibit A-3
Collateral Certificate and/or (ii) it constitutes a grant of a security interest
(as defined in the UCC as in effect in the applicable jurisdiction) in such
property to the Issuer, which is enforceable with respect to the existing
Receivables in the Additional Accounts designated hereby, the Collections,
Recoveries and other proceeds (as defined in the UCC as in effect in the
applicable jurisdiction) thereof and Insurance Proceeds relating thereto upon
the conveyance of such Receivables to the Issuer, and which will be enforceable
with respect to the Receivables thereafter created in respect of the Additional
Accounts designated hereby, the Collections, Recoveries and other proceeds (as
defined in the UCC as in effect in the applicable jurisdiction) thereof and
Insurance Proceeds relating thereto, upon such creation; and (iii) if this
Assignment constitutes the grant of a security interest to the Issuer in such
property, upon the filing of a financing statement described in Section 3 of
---------
this Assignment with respect to the Additional Accounts designated hereby and in
the case of the Receivables of such Additional Accounts thereafter created and
the Collections, Recoveries and other proceeds (as defined in the UCC as in
effect in the applicable jurisdiction) thereof, and Insurance Proceeds relating
to such Receivables, upon such creation, the Issuer shall have a first priority
perfected security interest in such property, except for Liens permitted under
Section 2.5(b) of the Transfer and Servicing Agreement, the interest of the
--------------
Seller as holder of the Collateral Certificate and the Seller's right to receive
interest accruing on, and investment earnings in respect of, the Collection
Subaccount and any Series Account as provided in the Transfer and Servicing
Agreement.
(g) Notice has been given to each Rating Agency and to each Enhancement
Provider as required under Section 2.7(d) of the Transfer and Servicing
--------------
Agreement.
6. Conditions Precedent. The acceptance of the Owner Trustee set forth in
--------------------
Section 4 above and the amendment of the Transfer and Servicing Agreement set
---------
forth in Section 7 below are subject to the satisfaction, on or prior to the
---------
Addition Date, of the following conditions precedent:
(a) Officer's Certificate. The Seller shall have delivered to the Owner
---------------------
Trustee a certificate of a Vice President or more senior officer, certifying
that (i) all requirements set forth in Section 2.6 of the Transfer and Servicing
-----------
Agreement for designating Additional Accounts and conveying the Principal
Receivables of such Accounts, whether now existing or hereafter created, have
been satisfied and (ii) each of the representations and warranties made by the
Seller in Section 5 is true and correct as of the Addition Date. The Owner
---------
Trustee may conclusively rely on such Officer's Certificate, shall have no duty
to make inquiries with regard to the matters set forth therein, and shall incur
no liability in so relying.
(b) Opinion of Counsel. The Seller shall have delivered to the Owner
------------------
Trustee an Opinion of Counsel with respect to the Additional Accounts designated
hereby substantially in the form of Exhibit F-2 to the Agreement.
-----------
Exhibit A-4
(c) Additional Information. The Seller shall have delivered to the Owner
----------------------
Trustee such information as was reasonably requested by the Owner Trustee to
satisfy itself as to the accuracy of the representation and warranty set forth
in Section 5(d) to this Assignment.
------------
7. Amendment of the Transfer and Servicing Agreement. The Transfer and
-------------------------------------------------
Servicing Agreement is hereby amended to provide that all references therein to
the "Transfer and Servicing Agreement", to "this Agreement" and "herein" shall
be deemed from and after the Addition Date to be a dual reference to the
Transfer and Servicing Agreement as supplemented by this Assignment. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Transfer and Servicing 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 deemed to constitute a waiver of compliance with or a consent
to noncompliance with any term or provision of the Transfer and Servicing
Agreement.
8. Counterparts. This Assignment 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.
9. Rights of the Owner Trustee. Each of the parties hereto acknowledges and
---------------------------
agrees that this Agreement is being executed and delivered by Bankers Trust
Company not individually but solely and exclusively in its capacity as Owner
Trustee on behalf of First Consumers Credit Card Master Note Trust for the
purpose and with the intention of binding First Consumers Credit Card Master
Note Trust. No obligations or liabilities hereunder shall run against Bankers
Trust Company in its individual capacity or against its properties or assets.
10. No Bankruptcy Petition. (a) Each of Seller and Servicer, severally and not
----------------------
jointly, hereby covenants and agrees that, prior to the date which is one (1)
year and one (1) day after the payment in full of all Notes, it will not
institute against, or join any other Person in instituting against, the Issuer
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under the laws of the United States or
any state of the United States.
(b) Each of Servicer and Issuer, severally and not jointly, hereby covenants and
agrees that, prior to the date which is one (1) year and one (1) day after the
payment in full of all Notes, it will not institute against, or join any other
Person in instituting against, the Seller any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States.
Exhibit A-5
IN WITNESS WHEREOF, the undersigned have caused this Assignment of Receivables
in Additional Accounts to be duly executed and delivered by their respective
duly authorized officers on the day and year first above written.
FIRST CONSUMERS CREDIT
CORPORATION, Seller
By:__________________________________________
Name:
Title:
FIRST CONSUMERS NATIONAL
BANK, Servicer
By:__________________________________________
Name:
Title:
FIRST CONSUMERS CREDIT CARD
MASTER NOTE TRUST,
Issuer
By: BANKERS TRUST COMPANY,
not in its individual capacity but solely on
behalf of the Issuer
By:__________________________________________
Name:
Title:
Exhibit A-6
Schedule 1
to Assignment of Receivables
in Additional Accounts
ADDITIONAL ACCOUNTS
-------------------
Exhibit A-7
EXHIBIT B
to
TRANSFER AND SERVICING AGREEMENT
FORM OF REASSIGNMENT OF RECEIVABLES
IN REMOVED ACCOUNTS
(As required by Section 2.7 of the Transfer and Servicing Agreement)
-----------
REASSIGNMENT No. _______ OF RECEIVABLES dated as of _________, by and among
FIRST CONSUMERS CREDIT CORPORATION, a Delaware corporation, as Seller (the
"Seller"), FIRST CONSUMERS NATIONAL BANK, a national banking association, as
------
Servicer (the "Servicer"), and FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST
(the "Issuer"), pursuant to the Transfer and Servicing Agreement referred to
------
below.
WITNESSETH:
WHEREAS the Seller, the Servicer and the Issuer are parties to the Transfer and
Servicing Agreement, dated as of March 1, 2001, and amended and restated as of
December 31, 2001 (the "Agreement");
---------
WHEREAS pursuant to the Agreement, the Seller wishes to remove from the Issuer
all Receivables owned by the Issuer in certain designated Accounts (the "Removed
-------
Accounts") and to cause the Issuer to reconvey the Receivables of such Removed
--------
Accounts, whether now existing or hereafter created, from the Issuer to the
Seller; and
WHEREAS the Issuer is willing to accept such designation and to reconvey the
Receivables in the Removed Accounts subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller and the Issuer hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein shall
-------------
have such defined meanings when used herein, unless otherwise defined herein.
"Removal Date" means, with respect to the Removed Accounts designated hereby,
------------
___________, ____.
"Removal Notice Date" means, with respect to the Removed Accounts
-------------------
______________, ____, (which shall be a date on or prior to the fifth Business
Day prior to the Removal Date).
2. Designation of Removed Accounts. On or before the date that is ten (10)
-------------------------------
Business Days after the Removal Date, the Seller will deliver to the Owner
Trustee a computer file or microfiche list containing a true and complete
schedule identifying
Exhibit B-1
all Accounts the Receivables of which are being removed from the Issuer,
specifying for each such Account, as of the Removal Notice Date, its account
number, the aggregate amount outstanding in such Account and the aggregate
amount of Principal Receivables in such Account, which computer file or
microfiche list shall supplement Schedule 1 to the Agreement.
----------
3. Conveyance of Receivables. (a) The Issuer does hereby transfer, assign, set
-------------------------
over and otherwise convey to the Seller, without recourse, on and after the
Removal Date, all right, title and interest of the Issuer in, to and under the
Receivables existing at the close of business on the Removal Notice Date and
thereafter created from time to time in the Removed Accounts designated hereby,
all Recoveries related thereto, all monies due or to become due and all amounts
received or receivable with respect thereto and all proceeds thereof.
(b) In connection with such transfer, the Issuer agrees to execute and deliver
to the Seller on or prior to the date this Reassignment is delivered, applicable
termination statements prepared by the Seller with respect to the Receivables
existing at the close of business on the Removal Notice Date and thereafter
created from time to time in the Removed Accounts reassigned hereby and the
proceeds thereof evidencing the release by the Issuer of its interest in the
Receivables in the Removed Accounts, and meeting the requirements of applicable
state law, in such manner and such jurisdictions as are necessary to terminate
such interest.
4. Representations and Warranties of the Seller. The Seller hereby represents
--------------------------------------------
and warrants to the Issuer as of the Removal Date:
(a) Legal Valid and Binding Obligation. This Reassignment Agreement constitutes
----------------------------------
a legal, valid and binding obligation of the Seller enforceable against the
Seller in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in equity);
and
(b) Selection Procedures. No selection procedures believed by the Seller to be
--------------------
materially adverse to the interests of the Noteholders were utilized in
selecting the Removed Accounts designated hereby.
5. Condition Precedent. The amendment of the Transfer and Servicing Agreement
-------------------
set forth in Section 7 hereof is subject to the satisfaction, on or prior to the
---------
Removal Date, of the following condition precedent:
6. Officers' Certificate. The Seller shall have delivered to the Owner Trustee
---------------------
an Officers' Certificate certifying that (i) as of the Removal Date, all
requirements set forth in Section 2.5 of the Transfer and Servicing Agreement
-----------
for designating Removed
Exhibit B-2
Accounts and reconveying the Receivables of such Removed Accounts, whether now
existing or hereafter created, have been satisfied, and (ii) each of the
representations and warranties made by the Seller in Section 5 hereof is true
---------
and correct as of the Removal Date. The Owner Trustee may conclusively rely on
such Officer's Certificate, shall have no duty to make inquiries with regard to
the matters set forth therein and shall incur no liability in so relying.
7. Amendment of the Transfer and Servicing Agreement. The Transfer and
-------------------------------------------------
Servicing Agreement is hereby amended to provide that all references therein to
the "Transfer and Servicing Agreement", to "this Agreement" and "herein" shall
be deemed from and after the Removal Date to be a dual reference to the Transfer
and Servicing Agreement as supplemented by this Reassignment Agreement. Except
as expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Transfer and Servicing 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 deemed to constitute a waiver of compliance with or a consent
to non-compliance with any term or provision of the Transfer and Servicing
Agreement.
8. Counterparts. This Reassignment Agreement 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.
9. Rights of the Owner Trustee. Each of the parties hereto acknowledges and
---------------------------
agrees that this Agreement is being executed and delivered by Bankers Trust
Company not individually but solely and exclusively in its capacity as Owner
Trustee on behalf of First Consumers Credit Card Master Note Trust for the
purpose and with the intention of binding First Consumers Credit Card Master
Note Trust. No obligations or liabilities hereunder shall run against Bankers
Trust Company in its individual capacity or against its properties or assets.
10. No Bankruptcy Petition. (a) Each of Seller and Servicer, severally and not
----------------------
jointly, hereby covenants and agrees that, prior to the date which is one (1)
year and one (1) day after the payment in full of all Notes, it will not
institute against, or join any other Person in instituting against, the Issuer
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under the laws of the United States or
any state of the United States.
(b) Each of Servicer and Issuer, severally and not jointly, hereby covenants and
agrees that, prior to the date which is one (1) year and one (1) day after the
payment in full of all Notes, it will not institute against, or join any other
Person in instituting against, the Seller any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States.
Exhibit B-3
IN WITNESS WHEREOF, the undersigned have caused this Reassignment Agreement to
be duly executed and delivered by their respective duly authorized officers on
the day and year first above written.
FIRST CONSUMERS CREDIT
CORPORATION, Seller
By:__________________________________________
Name:
Title:
FIRST CONSUMERS NATIONAL
BANK, Servicer
By:__________________________________________
Name:
Title:
FIRST CONSUMERS CREDIT CARD
MASTER NOTE TRUST, Issuer
By: BANKERS TRUST COMPANY,
not in its individual capacity but solely on
behalf of the Issuer
By:__________________________________________
Name:
Title:
Exhibit B-4
Schedule 1
to Reassignment Agreement
REMOVED ACCOUNTS
----------------
Exhibit B-5
EXHIBIT C
to
TRANSFER AND SERVICING AGREEMENT
FORM OF MONTHLY SERVICER'S CERTIFICATE
The undersigned, a duly authorized representative of First Consumers National
Bank ("FCNB"), as Servicer pursuant to the Transfer and Servicing Agreement
----
dated as of March 1, 2001, and amended and restated as of December 31, 2001 (the
"Transfer and Servicing Agreement") among FCNB, First Consumers Credit
--------------------------------
Corporation, and First Consumers Credit Card Master Note Trust, does hereby
certify as follows:
1. Capitalized terms used in this Certificate
have their respective meanings set forth in
the Transfer and Servicing Agreement;
provided that the "preceding Monthly
-------- -----------------
Period" shall mean the Monthly Period
------
immediately preceding the calendar month in
which this Certificate is delivered. This
Certificate is delivered pursuant to
Section 3.4(b) of the Transfer and
--------------
Servicing Agreement. References herein to
certain sections and subsections are
references to the respective sections and
subsections of the Transfer and Servicing
Agreement.
2. FCNB is the Servicer under the Transfer and
Servicing Agreement.
3. The undersigned is a Servicing Officer.
4. The date of this Certificate is a
Determination Date under the Transfer and
Servicing Agreement.
5. The aggregate amount of Collections
processed during the preceding Monthly
Period was equal to $____________
6. The aggregate amount of the Allocation
Percentage of Collections of Principal
Receivables processed by the Servicer
pursuant to Article VIII of the Indenture
during the preceding Monthly Period was
equal to $______________
Exhibit C-1
7. The aggregate amount of the Allocation
Percentage of Finance Charge Collections
processed by the Servicer pursuant to
Article VIII of the Indenture during the
preceding Monthly Period was equal to $
____________
8. The Default Amount for the preceding
Monthly Period was equal to $____________
9. Net Recoveries for the preceding Monthly
Period was equal to $____________
10. The Portfolio Yield for the preceding
Monthly Period for each of the following
Series was equal to:
Series __________$_____________
Series __________$_____________
11. The Base Rate for the preceding Monthly
Period for each of the following Series was
equal to:
Series __________$_____________
Series __________$_____________
12. The aggregate amount of Receivables as of
the last day of the preceding Monthly
Period was equal to $______________
13. The aggregate amount of funds on deposit in
the Collection Account (or any Subaccount
thereof) and each other Series Account with
respect to Collections processed as of the
end of the last day of the preceding
Monthly Period was equal to $____________
14. The aggregate amount, if any, of
withdrawals, drawings or payments under any
Enhancement with respect to each Series
made with respect to the preceding Monthly
Period was equal to $____________
Exhibit C-2
15. The aggregate amount payable to the
Noteholders on the succeeding Distribution
Date in respect of interest is equal to
$____________
16. The aggregate amount payable to the
Noteholders on the succeeding Distribution
Date in respect of principal is equal to
$____________
Exhibit C-3
EXHIBIT D
to
TRANSFER AND SERVICING AGREEMENT
FORM OF ANNUAL SERVICER'S CERTIFICATE
The undersigned, a duly authorized representative of First Consumers
National Bank ("FCNB") as Servicer pursuant to the Transfer and Servicing
----
Agreement dated as of March 1, 2001, and amended and restated as of December 31,
2001 (the "Transfer and Servicing Agreement") among FCNB, First Consumers Credit
--------------------------------
Corporation and Spiegel Credit Card Master Note Trust, does hereby certify that:
1. FCNB is Servicer under the Transfer and Servicing Agreement.
2. The undersigned is duly authorized pursuant to the Transfer and
Servicing Agreement to execute and deliver this Certificate to the Owner
Trustee.
3. This Certificate is delivered pursuant to Section 3.5 of the
-----------
Transfer and Servicing Agreement.
4. A review of the activities of the Servicer during the calendar year
ended December 31, 200_ was conducted under my supervision.
5. Based on such review, the Servicer has, to the best of my knowledge,
fully performed all its obligations under the Transfer and Servicing Agreement
throughout such calendar year and no default in the performance of such
obligations has occurred or is continuing except as set forth in paragraph 6
below.
6. The following is a description of each default in the performance of
the Servicer's obligations under the provisions of the Transfer and Servicing
Agreement known to me to have been made during the calendar year ended December
31, 200_, which sets forth in detail the (i) nature of each such default, (ii)
the action taken by the Servicer, if any, to remedy each such default and (iii)
the current status of each such default: [If applicable, insert "None."]
Exhibit D-1
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
this day of ______, 200 ___.
___________________________________
Name:
Title:
Exhibit D-2
EXHIBIT E
to
TRANSFER AND SERVICING AGREEMENT
FORM OF ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS'
SERVICING REPORT
First Consumers National Bank
▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
First Consumers Credit Corporation
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The Bank of New York
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The Management of First Consumers National Bank, First Consumers Credit
Corporation and The Bank of New York:
We have performed the procedures enumerated below, which were agreed to by the
management of First Consumers National Bank ("FCNB"), First Consumers Credit
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Corporation ("FCCC") and The Bank of New York (the "Trustee"), solely to assist
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you in evaluating the Monthly Noteholder's Statements and the Monthly Servicer
Certificates (collectively, the Certificates) issued pursuant to the Transfer
and Servicing Agreement dated as of December 31, 2001 among FCNB, FCCC and First
Consumers Credit Card Master Note Trust (the "Transfer and Servicing Agreement")
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in accordance with the requirements stated therein. This agreed-upon procedures
engagement was performed in accordance with standards established by the
American Institute of Certified Public Accountants. The sufficiency of these
procedures is solely the responsibility of FCNB, FCCC and the Trustee.
Consequently, we make no representation regarding the sufficiency of the
procedures described below either for the purpose for which this report has been
requested or for any other purpose.
For purposes of these agreed-upon procedures, differences between reported
amounts and FCNB (the "Servicer") documented amounts of less than or equal to
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$5,000 or 5% of the average of the amounts being compared were not considered
exceptions to the procedures performed. Our procedures and findings are as
follows:
Exhibit E-1
1. We compared and/or recalculated, each of the amounts or entries shown in
the Monthly Noteholder's Statements and the Monthly Servicer Certificates,
other than entries showing "zero" amounts or "not applicable", for each of
the months in the year ended December 31, _____ based on one or more of the
following:
. Corresponding amounts or entries on the Transfer and Servicing
Agreement,
. Schedules prepared by FCNB,
. Data extracted from FCNB's credit accounting system,
. Data provided to FCNB from the Trustee,
. Recalculations based on schedules prepared by FCNB and data
extracted from FCNB's credit accounting system, or
. In instances where timely data was not available at the time the
Certificates were prepared, to documented estimates by the
Servicer.
g. We read the "Annual Servicer's Certificate" for the year ended December
31, _____ required by the Transfer and Servicing Agreement and made
inquiries of FCNB's management regarding FCNB's compliance with the
guidelines of the Transfer and Servicing Agreement. FCNB's management
represented full compliance with the Transfer and Servicing Agreement.
We were not engaged to, and did not, perform an examination, the objective of
which would be the expression of an opinion on the Certificates. Accordingly, we
do not express such an opinion. Had we performed additional procedures, other
matters might have come to our attention that would have been reported to you.
This report is intended solely for the information and use of the specified
users listed above and is not intended to be and should not be used by anyone
other than these specified users.
Date
Exhibit E-2
EXHIBIT F-1
FORM OF OPINION OF COUNSEL
WITH RESPECT TO AMENDMENTS
(Provisions to be included in Opinion of Counsel to be delivered
pursuant to Section 9.2(d)(i))
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The opinions set forth below may be subject to all the qualifications,
assumptions, limitations and exceptions taken or made in the Opinions Of Counsel
delivered on any applicable Closing Date.
(i) The amendment to the Transfer and Servicing Agreement, attached hereto
as Schedule 1 (the "Amendment" ), has been duly authorized, executed and
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delivered by Seller and constitutes the legal, valid and binding agreement of
Seller, enforceable in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws from time to time in effect affecting creditors' rights generally.
The enforceability of Seller's obligations is also subject to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(ii) The Amendment has been entered into in accordance with the terms and
provisions of Section 9.1 of the Transfer and Servicing Agreement.
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Exhibit F-1-1
EXHIBIT F-2
to
TRANSFER AND SERVICING AGREEMENT
(Provisions to be included in Opinion of Counsel to be delivered
pursuant to Section 2.6(c)(vii) and Section 9.2(d)(ii))
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The opinions set forth below may be subject to all the qualifications,
assumptions, limitations and exceptions taken or made in the Opinions of Counsel
delivered on any applicable Closing Date.
1. Except for any Receivable that is evidenced by an instrument, the
Receivables constitute accounts under Article 9 of the applicable UCC.
2. If the Assignment, together with the Agreement, constitutes a valid
assignment of all Seller's right, title and interest in, to and under the
Receivables in Schedule 1 to the Assignment and all rights to security for such
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Receivables and the proceeds thereof (including without limitation rights to
bank accounts or certificates of deposit pledged as collateral) (the
"Collateral") and all of the Seller's rights, remedies, powers, and privileges
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with respect to such Collateral, then the Issuer has or will acquire all of
Seller's right, title and interest in, to and under the Collateral free and
clear of any Lien or interest of any person at the time of transfer (and anytime
thereafter with respect to any Lien or interest arising through or under the
Seller except as provided in the Agreement), except for Liens for municipal or
other local taxes permitted under Section 2.5(b) of the Agreement.
3. If the Assignment, together with the Agreement, does not constitute a
valid assignment of all of the Seller's right, title and interest in, to and
under the Collateral, then the Assignment creates a valid security interest in
all right, title and interest of Seller in, to and under the Collateral in favor
of the Issuer.
4. The Receivables Purchase Agreement constitutes a valid assignment of
all of the RPA Seller's right, title and interest in, to and under the
Collateral and all of its rights, remedies, powers, and privileges with respect
to such Collateral. The Seller has or will acquire all the RPA Seller's right,
title and interest in, to and under such Collateral free and clear of any Lien
or interest of any person at the time of transfer (and anytime thereafter with
respect to any Lien or interest arising through or under the RPA Seller, except
as provided in the Agreement), except for Liens for state, municipal or other
local taxes.
5. The security interest described in paragraphs 3 above is perfected and
of first priority.
Exhibit F-2-1
EXHIBIT F-3
PROVISIONS TO BE INCLUDED IN
ANNUAL OPINION OF COUNSEL
The opinions set forth below may be subject to certain qualifications,
assumptions, limitations and exceptions taken or made in the opinion of counsel
to Seller with respect to similar matters delivered on the Initial Closing Date.
Unless otherwise indicated, all capitalized terms used herein shall have the
meanings ascribed to them in the Transfer and Servicing Agreement.
1. No filing or other action, other than such filing or other action
described in this opinion letter, is necessary from the date of this opinion
letter through June 30 of the following year to continue the perfected status of
the security interest of the Trust in the Receivables and all rights to security
for such Receivables and the proceeds thereof (including without limitation
rights to bank accounts or certificates of deposit pledged as collateral) (the
"Collateral") described in the financing statements referenced in this opinion
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letter.
2. No filing or other action, other than such filing or other action
described in this opinion letter, is necessary from the date of this opinion
letter through June 30 of the following year to continue the perfected status of
the security interest of the Indenture Trustee in the Collateral described in
the financing statements referenced in this opinion letter.
3. No filing or other action, other than such filing or other action
described in this opinion letter, is necessary from the date of this opinion
letter through June 30 of the following year to continue the perfected status of
the security interest of the Seller in the Collateral described in the financing
statements referenced in this opinion letter.
Exhibit F-3-1
SCHEDULE 1
List of Accounts
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[Original list delivered to Owner Trustee]
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SCHEDULE 2
ADDITIONAL REPRESENTATIONS, WARRANTIES
AND COVENANTS
In addition to the representations, warranties and covenants contained in
the Transfer and Servicing Agreement, Seller hereby represents, warrants and
covenants to the Trust as follows:
(1) The Transfer and Servicing Agreement creates either (A) a valid
transfer to the Issuer of all right, title and interest of Seller in, to and
under (i) the Receivables conveyed to the Seller pursuant to the Receivables
Purchase Agreement, (ii) all rights to security for such Receivables (including
without limitation rights to bank accounts or certificates of deposit pledged as
collateral) (the "Obligor Collateral") and (iii) the Collateral Certificate (the
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Obligor Collateral and Collateral Certificate together with the Receivables, the
"Collateral") and the Collateral will be held by the Issuer free and clear of
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any Lien, except for (w) the interests of the Noteholders and the Enhancement
Providers, (x) Liens permitted pursuant to paragraph 3 below, or (y) the
interests of the Seller as holder of the Seller Interest or (B) a valid and
continuing security interest (as defined in the applicable UCC) in the
Collateral in favor of the Issuer, which security interest is prior to all other
Liens, and is enforceable as such against creditors of and purchasers from the
Seller (other than Liens permitted pursuant to paragraph 3 below).
(2) The Receivables constitute "accounts" within the meaning of the
applicable UCC. The Obligor Collateral constitutes security interests on
personal property securing certain of those accounts, and the creation and
perfection of a security interest in such security interests is governed by
Sections 9-203(g) and 9-308(e), respectively, of the applicable UCC. The
Collateral Certificate constitutes a "certificated security," "instrument" or
"general intangible" within the meaning of the applicable UCC.
(3) Immediately prior to the conveyance of, or grant of the security
interest in, the Collateral pursuant to the Transfer and Servicing Agreement,
Seller owns and has good and marketable title to the Collateral, and a valid,
perfected security interest in the collateral for the Receivables in any secured
Accounts, in each case, free and clear of any Lien, claim or encumbrance of any
Person; provided that nothing in this paragraph 3 shall prevent or be deemed to
prohibit Seller from suffering to exist upon any of the Collateral any Liens for
any taxes if such taxes shall not at the time be due and payable or if FCNB or
Seller, as applicable, 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. Seller has received all consents and
approvals required by the terms of the Collateral to the valid transfer of or
grant of security interest in the Collateral hereunder to the Issuer.
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(4) (a) If perfection is by filing, Seller has caused, or will have caused
within 10 days, the filing of all appropriate financing statements in the proper
filing office in the appropriate jurisdictions under applicable law in order to
perfect the security interest in the Collateral granted to the Issuer under the
Transfer and Servicing Agreement. (b) If perfection is by possession, all
original executed copies of each mortgage note, promissory note or security
certificate that constitutes or evidences the Collateral has been delivered to
the Issuer. Each security certificate either (i) is in bearer form, (ii) has
been indorsed, by an effective indorsement, to the Issuer or in blank or (iii)
has been registered in the name of the Issuer.
(5) Other than the grant of the security interest in the Collateral to the
Issuer pursuant to the Transfer and Servicing Agreement, Seller has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any of the
Collateral. Seller has not authorized the filing of and is not aware of any
financing statements against Seller that include a description of collateral
covering the Collateral. (a) If perfection is by filing, Issuer has in its
possession all original copies of the mortgage notes, promissory notes or
security certificates that constitute or evidence the Collateral. The mortgage
notes, promissory notes or security certificates that constitute or evidence the
Collateral do not have any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the Issuer. All
financing statements to be filed against Seller in favor of Issuer in connection
herewith describing the Collateral will contain a statement to the effect that
"A purchase of or security interest in any collateral described in this
financing statement will violate the rights of the Issuer". (b) If perfection is
by possession, none of the mortgage notes, promissory notes or security
certificates that constitute or evidence the Collateral have any marks or
notations indicating that they have been pledged, assigned or otherwise conveyed
to any Person other than the Issuer.
(6) Seller is not aware of any judgment, ERISA or tax lien filings against
Seller.
(7) Notwithstanding any other provision of the Transfer and Servicing
Agreement, the representations and warranties set forth in this Schedule 2 shall
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be continuing, and remain in full force and effect, until such time as all Notes
have been finally and fully paid and shall survive the transfer of the Trust
Assets to the Issuer under the Transfer and Servicing Agreement and the
termination of the rights and obligations of the Servicer pursuant to Article
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VII thereof. The parties to the Transfer and Servicing Agreement shall not,
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without satisfying the Rating Agency Condition, waive a breach of any
representation or warranty set forth in this Schedule 2. In order to evidence
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the interests of Seller and the Issuer under the Transfer and Servicing
Agreement, Seller and Servicer shall take such action, or execute and deliver
such instruments (other than filing financing statements) as may be necessary or
advisable (including, without limitation, such actions as are requested by
Indenture Trustee) to maintain and perfect, as a first priority interest,
Seller's or the Issuer's security interest in the Collateral. The Servicer
shall, from time to time and within the time limits
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established by law, prepare and present to the Issuer for the Indenture
Trustee's authorization and approval all financing statements, amendments,
continuations or initial financing statements in lieu of a continuation
statement, or other filings necessary to continue, maintain and perfect as a
first-priority interest. The Indenture Trustee's approval of such filings shall
authorize the Servicer to file such financing statements under the applicable
UCC without the signature of Seller or Issuer where allowed by applicable law.
Notwithstanding anything else in the Transfer and Servicing Agreement to the
contrary, the Servicer shall not have any authority to file a termination,
partial termination, release, partial release, or any amendment that deletes the
name of a debtor or excludes collateral of any such financing statements,
without the prior written consent of the Indenture Trustee. The Issuer may
require, prior to authorizing or filing any such termination, partial
termination, release, partial release or amendment, that Servicer provide an
Opinion of Counsel that such filings are authorized under the Transfer and
Servicing Agreement.
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