Exhibit 4.9
EXECUTION COPY
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AMENDED AND RESTATED
CLASS C NOTE PURCHASE AGREEMENT
Dated as of December 31, 2001
among
FIRST CONSUMERS CREDIT CORPORATION, Seller,
FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST,
Issuer,
FIRST CONSUMERS NATIONAL BANK,
Servicer,
THE CLASS C PURCHASERS PARTIES HERETO,
and
DEUTSCHE BANK AG, NEW YORK BRANCH,
Administrative Agent
____________________
Relating to
First Consumers Credit Card Master Note Trust
Class C Series 2001-A Floating Rate Asset Backed Notes
____________________
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Table of Contents
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Table of Contents
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i
AMENDED AND RESTATED CLASS C NOTE PURCHASE AGREEMENT, dated as of
December 31, 2001, by and among FIRST CONSUMERS CREDIT CORPORATION, a Delaware
corporation, as Seller (as defined in the Indenture referred to below), FIRST
CONSUMERS CREDIT CARD MASTER NOTE TRUST, an Illinois trust (together with its
successors and assigns, the "Issuer"), FIRST CONSUMERS NATIONAL BANK, a national
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banking association ("FCNB"), as Servicer (as defined in the Indenture referred
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to below), the CLASS C PURCHASERS (as hereinafter defined) from time to time
parties hereto, and DEUTSCHE BANK AG, a German banking corporation acting
through its New York Branch ("DBNY"), as administrative agent for the Class C
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Purchasers (together with its successors in such capacity, the "Administrative
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Agent").
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W I T N E S S E T H:
WHEREAS, the Issuer, FCNB, as seller and servicer, the Class C
Purchasers, and DBNY, as administrative agent, entered into a Class C Note
Purchase Agreement, dated as of March 1, 2001 (the "Existing Purchase
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Agreement");
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WHEREAS, the Issuer, the Seller, the Servicer and the Indenture Trustee
(as defined below) are parties to a certain Transfer and Servicing Agreement,
dated as of March 1, 2001, as amended and restated as of the date hereof (as the
same may from time to time be further amended or otherwise modified, the
"Transfer and Servicing Agreement"), pursuant to which, among other things, the
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Seller has assigned, transferred and conveyed its right, title and interest in,
to and under the Collateral Certificate (as defined therein) to the Issuer, and,
upon termination of the First Consumers Master Trust, has agreed to assign,
transfer and convey, its right, title and interest in, to and under certain
Receivables (as defined therein) to the Issuer, and the Servicer has agreed to
service such Receivables;
WHEREAS, the Issuer and The Bank of New York, as trustee (together with
its successors in such capacity, the "Indenture Trustee") are parties to a
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certain Master Indenture, dated as of March 1, 2001, as amended and restated as
of the date hereof (as the same may from time to time be amended or otherwise
modified, the "Master Indenture");
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WHEREAS, the Issuer issued its Class C Series 2001-A Floating Rate
Asset Backed Notes (the "Class C Notes") pursuant to the Master Indenture, as
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supplemented by the Series 2001-A Indenture Supplement, dated as of March 1,
2001, as amended and restated as of the date hereof (as the same may from time
to time be further amended or otherwise modified, the "Supplemental Indenture"
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and the Master Indenture, as supplemented by the Supplemental Indenture, the
"Indenture");
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WHEREAS, the Issuer also issued its Class A Series 2001-A Floating Rate
Asset Backed Notes (the "Class A Notes") and its Class B Series 2001-A Floating
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Rate Asset Backed Notes (the "Class B Notes") pursuant to the Indenture, to
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which Class A Notes and Class B Notes the Class C Notes are subordinate;
WHEREAS, the Issuer established a cash collateral account (the "Spread
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Account") with the Indenture Trustee pursuant to the terms of the Supplemental
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Indenture for the benefit of the Class C Purchasers;
WHEREAS, the Class C Purchasers purchased the Class C Notes in the
amount of the Class C Initial Note Principal Balance on the Closing Date on the
terms and conditions provided for in the Existing Agreement; and
WHEREAS, the parties hereto wish to amend and restate the Existing
Purchase Agreement as set forth herein.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby expressly acknowledged, the parties hereto agree that the
Existing Purchase Agreement is hereby amended and restated as follows:
ARTICLE 1 DEFINITIONS
1.1 Definitions. All capitalized terms used herein as defined
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terms and not defined herein shall have the meanings given to them in the
Indenture or the Related Documents. Each capitalized term defined herein shall
relate only to the Series 2001-A and to no other Series issued pursuant to the
Indenture.
"Adjusted Eurodollar Rate" shall mean, for any Interest Accrual Period
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or portion thereof, a rate per annum (rounded upwards, if necessary, to the
nearest 1/16th of 1%) equivalent to the rate determined pursuant to the
following formula:
Adjusted Eurodollar Rate = LIBOR
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1-LIBOR Reserve Percentage
on the first day of such Interest Accrual Period.
"Adjusted Excess Spread" has the meaning specified in the definition of
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"Excess Spread Percentage" in this Section 1.1.
"Administrative Agent" has the meaning specified in the preamble to
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this Agreement.
"Affected Party" shall mean, with respect to any CP Conduit, any
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Support Party of such CP Conduit.
"Agreement" shall mean this Class C Note Purchase Agreement, as
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amended, supplemented or otherwise modified from time to time.
"Alternative Rate" shall mean, for any Interest Accrual Period, an
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interest rate per annum equal to 0.75% per annum above the Adjusted Eurodollar
Rate for such Interest Accrual Period.
"Applicable Percentage" shall have the meaning specified in the
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Supplemental Spread Account Letter.
"Assignee" and "Assignment" have the respective meanings specified in
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subsection 8.1(e) of this Agreement.
"Cap Increase Event" shall mean:
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(a) the occurrence of any Series 2001-A Pay Out Event or the
occurrence of an event which would be a Series 2001-A Pay Out Event but
for a waiver of or failure to declare or determine such event by the
noteholders or the Trustee (unless waived by the Required Class C
Owners);
(b) the failure of the Seller, the Servicer or the Trustee to
make a deposit or withdrawal required hereunder when and as required
and such failure continues for five Business Days (unless waived by the
Required Class C Owners);
(c) A Change of Control shall occur;
(d) a breach of a representation or warranty hereunder which is
not cured within 60 days (unless waived by the Required Class C
Owners);
(e) the failure by the Seller or the Servicer or, if such
failure is reasonably expected to have a material adverse effect on the
Class C Purchasers, by the Trustee, to duly observe or perform any term
or provision of this Agreement (except as covered by clause (a) above)
which is not cured or waived by the Required Class C Owners within 60
days after written notice of such failure is given to the defaulting
party (with a copy to FCNB if FCNB in any capacity is not the
defaulting party) by the Administrative Agent;
(f) the Class A Notes or the Class B Notes are not repaid in
full on the Class A Expected Principal Distribution Date or the Class B
Expected Principal Distribution Date, respectively;
(g) that the Class C Notes are not rated at least Baa2 by
Moody's and BBB by Standard & Poor's or the ratings on the Class C
Notes have been withdrawn by either Moody's or Standard & Poor's;
(h) FCNB is not considered "well capitalized" with respect to
ratios of total capital (and core capital) to risk-weighted-assets
under applicable regulations of the Governmental Authorities regulating
FCNB and such circumstance continues for a period of thirty consecutive
days, provided that if such regulations no longer specify numeric
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ratios which qualify a bank as "well capitalized", FCNB shall be deemed
"well capitalized" if the ratio of its risk-based capital to
risk-weighted assets exceeds 10%; or
(i) the occurrence of the Series Termination Date.
"Change of Control" means that:
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(i) Spiegel shall fail to own, directly or indirectly, free and clear
of all liens, security interests or other encumbrances, at least 51% of the
outstanding shares of the capital stock of FCNB, on a fully diluted basis; or
(ii) the ▇▇▇▇ family related investment vehicles shall fail to own at
least 67% of the outstanding shares of the capital stock of Spiegel.
"Class A Notes" has the meaning specified in the recitals to this
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Agreement.
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"Class B Notes" has the meaning specified in the recitals to this
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Agreement.
"Class C Monthly Interest" shall mean, for any Monthly Period, the sum
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of (a) the interest on the Class C Note Principal Balance accrued for such
Monthly Period computed pursuant to subsections 2.2(a) or 2.2(b), as applicable,
of this Agreement and (b) all amounts (other than principal of the Class C
Notes) due hereunder at such time.
"Class C Note Asset Balance" shall mean, on any date, the product of
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(i) the Allocation Percentage (determined, for this purpose only, by using a
numerator equal to the Class C Note Principal Balance in lieu of the Collateral
Amount), and (ii) the sum of the Excess Funding Amount, the amount on deposit in
the Collection Account in respect of Collections of Principal Receivables and
the total amount of Principal Receivables on such date.
"Class C Notes" has the meaning specified in the recitals to this
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Agreement.
"Class C Owners" shall mean the Class C Purchasers that are owners of
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record of the Class C Notes or, with respect to any Class C Note held by the
Administrative Agent hereunder as nominee on behalf of Class C Purchasers, the
Class C Purchasers that are owners of the Class C Noteholders' Interest
represented by such Class C Note as reflected on the books of the Administrative
Agent in accordance with this Agreement and the Related Documents.
"Class C Purchaser" shall mean any Person which is designated as a
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Class C Purchaser on the signature pages hereto or in the Transfer Supplement
pursuant to which it became a party to this Agreement.
"Closing Date" shall mean March 6, 2001.
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"Code" shall mean the Internal Revenue Code of 1986, as amended.
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"Commercial Paper Notes" shall mean, with respect to a CP Conduit, the
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short-term promissory notes issued by such CP Conduit which are allocated by
such CP Conduit as its funding for its purchasing or maintaining its Percentage
Interest of the Class C Note Principal Balance hereunder.
"Commercial Paper Rate" shall mean, for each Tranche of the Class C
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Note Principal Balance, for any day to the extent a CP Conduit funds its
Percentage Interest of such Tranche on such day with outstanding Commercial
Paper Notes, the sum of (a) the rate (or if more than one rate, the weighted
average of the rates) per annum at which such Commercial Paper Notes were sold
by any placement agent or commercial paper dealer selected by or on behalf of
such CP Conduit, as agreed between each such agent or dealer and such CP
Conduit; provided that if the rate (or rates) as agreed between any such agent
or dealer and such CP Conduit is a discount rate (or rates), then such rate
shall be the rate (or if more than one rate, the weighted average of the rates)
resulting from converting such discount rate (or rates) to an interest-bearing
equivalent rate per annum, plus (b) 0.05% in respect of dealer fees and
commissions (to the extent not included in the rate or rates described in clause
(a)).
"Commission" shall mean the Securities and Exchange Commission.
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"Commitment" shall mean, for any Class C Purchaser, the maximum amount
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of such Class C Purchaser's commitment to purchase a portion of the Class C
Noteholders' Interest, as set forth on the signature pages hereto, or, in the
case of a Class C Purchaser which became a Class C Purchaser by Assignment, on
Schedule II to such Class C Purchaser's Assignment opposite the heading "Class C
Note Principal Balance Purchased", respectively, as the same may be reduced
pursuant to any Assignment.
"Consented Transferee Letter" shall mean the letter, dated as of the
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date of this Agreement and referring to this Agreement (or any replacement
therefor from time to time in effect), from the Seller to, and accepted by, the
Administrative Agent, as such letter may be amended or otherwise modified from
time to time by the Administrative Agent with the consent of the Seller.
"Covered Portion" shall mean a portion of the Class C Note Principal
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Balance equal to the Class C Note Asset Balance.
"CP Conduit" shall mean any Class C Purchaser which is a commercial
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paper conduit or other special purpose funding vehicle sponsored by the
Administrative Agent, or by any other bank or financial institution to which the
Administrative Agent and FCNB shall have consented (which consents shall not be
unreasonably withheld).
"DBNY" has the meaning specified in the preamble to this Agreement.
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"Excess Spread Percentage" shall mean, with respect to each Monthly
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Period, an amount equal to the percentage equivalent of a fraction, the
numerator of which is the product of (x) an amount (for each Monthly Period, the
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"Adjusted Excess Spread") equal to (i) Investor Finance Charge Collections with
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respect to such Monthly Period, plus (ii) the amount of the Reserve Draw Amount
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plus any amounts of interest and earnings described in Section 4.10 of the
Supplemental Indenture deposited into the Collection Account on the Distribution
Date relating to such Monthly Period, plus (iii) the amount of the Net Swap
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Receipts for the Distribution Date relating to such Monthly Period minus (iv)
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the portion of the Investor Finance Charge Collections consisting of (A)
Discount Option Receivable Collections or (B) Shared Finance Charge Collections,
minus (v) the distributions on the Distribution Date relating to such Monthly
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Period provided for in clauses (i) through (vi) of Section 4.4(a) of the
Supplemental Indenture; and (y) twelve, and the denominator of which is the
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Collateral Amount on the first day of such Monthly Period.
"Excluded Taxes" has the meaning specified in subsection 2.4(a) of this
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Agreement.
"FCNB" has the meaning specified in the preamble to this Agreement.
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"Governmental Authority" shall mean any nation or government, any state
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or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Indemnitee" has the meaning specified in subsection 2.5(a) of this
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Agreement.
"Indenture Trustee" has the meaning specified in the recitals to this
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Agreement.
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"Interest Accrual Period" shall mean, (i) with respect to each Tranche
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of the Class C Note Principal Balance which bears interest calculated by
reference to the Commercial Paper Rate, each period from the date of issuance to
the maturity date of the related tranche of commercial paper notes used in
determining the Commercial Paper Rate for such Tranche (or, if earlier, the date
on which such Tranche ceases to bear interest calculated by reference to the
Commercial Paper Rate), and (ii) with respect to any other Tranches of the Class
C Note Principal Balance, each Monthly Period and the period commencing on the
day following the end of the final Monthly Period for Series 2001-A and ending
on the final Distribution Date for Series 2001-A.
"Investing Office" shall mean initially, the office of any Class C
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Purchaser (if any) designated as such, on the signature pages hereto or in the
Transfer Supplement by which it became a party to this Agreement, and
thereafter, such other office of such Class C Purchaser or such Assignee as may
be designated in writing to the Administrative Agent, the Issuer, the Seller,
the Servicer and the Indenture Trustee by such Class C Purchaser or Assignee.
"Investment Earnings" shall mean, with respect to any Distribution
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Date, all interest and earnings on Permitted Investments included in the Spread
Account (net of losses and investment expenses) during the period commencing on
and including the Distribution Date immediately preceding such Distribution Date
and ending on but excluding such Distribution Date.
"Investment Letter" has the meaning specified in subsection 8.1(a) of
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this Agreement.
"LIBOR" has the meaning specified in the Supplemental Indenture.
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"LIBOR Reserve Percentage" shall mean, with respect to any Interest
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Accrual Period or portion thereof, a percentage (expressed as a decimal) equal
to the weighted average of the percentages in effect during such Interest
Accrual Period, as prescribed by the Board of Governors of the Federal Reserve
System (or any successor thereto) for determining the maximum reserve
requirements applicable to "Eurocurrency liabilities" pursuant to Regulation D
or any other applicable regulation of the Federal Reserve Board (or any
successor thereto) which prescribes reserve requirements applicable to
"Eurocurrency liabilities" as currently defined in Regulation D.
"Loan Spread Rate" shall mean, the applicable rate or rates identified
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as the "Loan Spread Rate" in the Supplemental Fee Letter.
"Maximum Release Amount" shall have the meaning specified in the
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Supplemental Spread Account Letter.
"Note Rate Determination Date" shall mean, for any Monthly Period, the
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third Business Day prior to the Distribution Date which follows the end of such
Monthly Period.
"Participant" has the meaning specified in subsection 8.1(d) of this
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Agreement.
"Participation" has the meaning specified in subsection 8.1(d) of the
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Agreement.
"Percentage Interest" shall mean, for a Class C Purchaser on any day,
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the percentage equivalent of (a) the sum of (i) the portion of the Class C
Initial Note Principal Balance (if any) purchased by such Class C Purchaser,
plus (ii) any portion of the Class C Note Principal Balance
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acquired by such Class C Purchaser as an Assignee from another Class C Purchaser
pursuant to a Transfer Supplement executed and delivered pursuant to Section 8.1
of this Agreement, minus (iii) the aggregate amount of principal payments made
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to such Class C Purchaser prior to such day, minus (iv) any portion of the Class
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C Note Principal Balance assigned by such Class C Purchaser to an Assignee
pursuant to a Transfer Supplement executed and delivered pursuant to Section 8.1
of this Agreement, divided by (b) the aggregate Class C Note Principal Balance
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on such day.
"Permitted Transferee" shall mean each initial Class C Purchaser,
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Administrative Agent (in its individual capacity), each Person listed in the
Consented Transferee Letter as in effect on the date on which such Person became
or agreed to become a Class C Purchaser, a Participant or a Support Party, and
each other Person who has been consented to as a potential Transferee by the
Seller.
"Person" shall mean an individual, partnership, corporation, business
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trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
"Prime Rate" shall mean, for any day, a fluctuating rate of interest
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per annum equal to the higher of: (i) the rate of interest most recently
announced by Deutsche Bank AG as its prime lending rate for unsecured commercial
loans within the United States, and (ii) 0.50% above the rate per annum at which
Deutsche Bank AG, New York Branch, as a branch of a foreign bank, in its
reasonable discretion, can acquire federal funds in the interbank overnight
federal funds market, through brokers of recognized standing or otherwise, as
most recently determined by Deutsche Bank AG, New York Branch. The Prime Rate is
not necessarily intended to be the lowest rate of interest determined by
Deutsche Bank AG or Deutsche Bank AG, New York Branch, in connection with
extensions of credit.
"Prospectus" shall mean the prospectus as first filed with the
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Commission under Rule 424(b) of the Act relating to the Series 2001-A Notes.
"Receivables Purchase Agreement" shall mean the Receivables Purchase
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Agreement, dated as of the date hereof, between First Consumers Credit
Corporation, as Buyer, and FCNB, as RPA Seller.
"Registration Statement" shall mean the registration statement on Form
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S-3 of FCNB and First Consumers Master Trust (Registration Number 333-48860 and
333-48860-01) as amended from time to time and including incorporated documents
and exhibits, filed with the Commission pursuant to the Act, relating to the
Series 2001-A Notes.
"Regulatory Change" shall mean, as to each Class C Purchaser, any
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change occurring after the date of the execution and delivery of this Agreement
or, if later, the date of the execution and delivery of the Transfer Supplement
by which it became party to this Agreement; in the case of a Participant, any
change occurring after the date on which its Participation became effective, or
in the case of an Affected Party, any change occurring after the date it became
such an Affected Party, in any (or the adoption after such date of any new):
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(1) United States Federal or state law or foreign law
applicable to such Class C Purchaser, Affected Party or Participant; or
(2) regulation, interpretation, directive, guideline or
request (whether or not having the force of law) applicable to such
Class C Purchaser, Affected Party or Participant of any court or other
judicial authority or any Governmental Authority charged with the
interpretation or administration of any law referred to in clause (i)
or of any fiscal, monetary or other Governmental Authority or central
bank having jurisdiction over such Class C Purchaser, Affected Party or
Participant.
"Related Documents" shall mean, collectively, this Agreement (including
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the Supplemental Fee Letter, the Supplemental Spread Account Letter and all
effective Transfer Supplements), the Receivables Purchase Agreement, the Master
Indenture, the Supplemental Indenture, the Transfer and Servicing Agreement, the
Trust Agreement, the Series 2001-A Notes and the Transaction Documents.
"Required Class C Owners" shall mean, at any time, Class C Owners
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having at least 51% of the aggregate Percentage Interests of all Class C Owners.
"Requirement of Law" shall mean, as to any Person, any law, treaty,
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rule or regulation, or determination of an arbitrator or Governmental Authority,
in each case applicable to or binding upon such Person or to which such Person
is subject, whether federal, state or local (including usury laws, the Federal
Truth in Lending Act and Regulation Z and Regulation B of the Board of Governors
of the Federal Reserve System).
"Risk Portion" shall mean a portion of the Class C Note Principal
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Balance equal to the excess, if any, of Class C Note Principal Balance over the
Class C Note Asset Balance.
"Risk Rate" shall mean, for any day, a rate per annum equal to the
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Prime Rate in effect for such day.
"Spread Account Amount" shall mean, as of any date, an amount equal to
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the amount on deposit in the Spread Account (exclusive of Investment Earnings)
on such date, after giving effect to all deposits, transfers and withdrawals
from the Spread Account on such date.
"Spread Account Cap" with respect to any date of determination, shall
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mean the result obtained by multiplying the Initial Collateral Amount by the
Applicable Percentage in effect on such date; provided that the Spread Account
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Cap shall be increased to the Class C Note Principal Balance upon the occurrence
of a Cap Increase Event; and provided, further that at no time shall the Spread
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Account Cap exceed an amount equal to the Class C Note Principal Balance.
"Supplemental Indenture" has the meaning specified in the recitals to
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this Agreement.
"Supplemental Fee Letter" shall mean, the letter agreement, designated
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therein as a Supplemental Fee Letter, among the Issuer, FCNB and the
Administrative Agent, as such letter agreement may be amended or otherwise
modified from time to time.
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"Supplemental Spread Account Letter" shall mean that certain letter
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agreement designated as such, dated as of the date hereof, among the Issuer,
FCNB and the Administrative Agent.
"Support Advances" shall mean, with respect to a Liquidity Purchaser
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and its related CP Conduit, any participation held by such Liquidity Purchaser
in such CP Conduit's Percentage Interest in the Class C Note Principal Balance
which was purchased from such CP Conduit pursuant to a Support Facility and any
loans or other advances made by such Liquidity Purchaser to such CP Conduit
pursuant to a Support Facility to fund such CP Conduit's making or maintaining
its purchases hereunder (but excluding any such loans or advances made to fund
such CP Conduit's obligations to pay interest, fees or other similar amounts
relating to the funding of its making or maintaining its purchases hereunder).
"Support Facility" shall mean any liquidity or credit support agreement
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with a CP Conduit which relates to this Agreement (including any agreement to
purchase an assignment of or participation in Class C Notes).
"Support Party" shall mean any other bank, insurance company or other
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financial institution extending or having a commitment to extend funds to or for
the account of a CP Conduit (including by agreement to purchase an assignment of
or participation in Class C Notes) under a Support Facility.
"Taxes" has the meaning specified in subsection 2.4(a) of this
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Agreement.
"Termination Date" shall mean the Series Termination Date, provided
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that if the Rapid Amortization Period has been continued as set forth in the
definition thereof in the Supplemental Indenture because amounts are owed to the
Class C Purchasers, then the Termination Date shall be the last day of the Rapid
Amortization Period, as so continued.
"Three Month Average Excess Spread Percentage" means, with respect to
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any Monthly Period, the average of the Excess Spread Percentages for such
Monthly Period and the two preceding Monthly Periods, provided that the Three
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Month Average Excess Spread Percentage for the first Monthly Period shall equal
the Excess Spread Percentage for such Monthly Period and the Three Month Average
Excess Spread Percentage for the second Monthly Period shall equal the Two Month
Average Excess Spread Percentage for such Monthly Period.
"Tranche" shall mean (i) in the case of the portion of the Class C Note
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Principal Balance which bears interest by reference to the Commercial Paper
Rate, each portion thereof which the applicable CP Conduit determines is funded
or maintained with its commercial paper notes having the same maturity date and
yield or by a single commercial paper note having a maturity date or yield which
differs from any other commercial paper notes allocated by such CP Conduit to
its funding or maintaining of such portion of the Class C Note Principal
Balance, and (ii) in the case of the remaining portion of the Class C Note
Principal Balance, such entire remaining portion.
"Transfer" has the meaning specified in subsection 8.1(c) of this
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Agreement.
"Transfer and Servicing Agreement" has the meaning specified in the
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recitals to this Agreement.
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"Transfer Supplement" has the meaning specified in subsection 8.1(e) of
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this Agreement.
"Transferee" has the meaning specified in subsection 8.1(c) of this
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Agreement.
"Trust" has the meaning specified in the recitals to this Agreement.
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"Two Month Average Excess Spread Percentage" means, with respect to any
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Monthly Period, the average of the Excess Spread Percentages for such Monthly
Period and the preceding Monthly Period, provided that the Two Month Average
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Excess Spread Percentage for the first Monthly Period shall equal the Excess
Spread Percentage for such Monthly Period.
"written" or "in writing" (and other variations thereof) shall mean any
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form of written communication or a communication by means of telex, telecopier
device, telegraph or cable.
1.2 Other Definitional Provisions.
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(a) Unless otherwise specified therein, all terms defined in
this Agreement shall have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto.
(b) The words "hereof", "herein", and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and Section,
subsection and Exhibit references are to this Agreement, unless otherwise
specified. The words "including" and "include" shall be deemed to be followed by
the words "without limitation".
ARTICLE 2 AMOUNT AND TERMS OF COMMITMENTS
2.1 Purchase.
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(a) On and subject to the terms and conditions of this
Agreement, the Class C Purchaser purchased the Class C Initial Note Principal
Balance for a purchase price equal to the Class C Initial Note Principal
Balance.
(b) The purchase of the Class C Initial Note Principal Balance
hereunder was made on the Closing Date.
(c) The Class C Purchaser's purchase price payable pursuant to
subsection 2.1(a) of this Agreement shall be made available to the
Administrative Agent, subject to the fulfillment of the applicable conditions
set forth in Article 3 hereof, at or prior to 10:00 a.m., New York City time, on
the Closing Date, by deposit of immediately available funds to an account of the
Administrative Agent specified in subsection 9.2(b) of this Agreement. Subject
to (i) the Administrative Agent's receipt of such funds and (ii) the fulfillment
of the applicable conditions set forth in Article 3 hereof, as determined by the
Administrative Agent, the Administrative Agent will not later than 12:00 p.m.,
New York City time, on the Closing Date make such funds available, in the same
type of funds received, by wire transfer thereof to the account of Issuer or as
the Issuer may otherwise direct in the United States specified in writing by the
Issuer to the Administrative Agent not later than the Business Day prior to the
Closing Date.
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2.2 Interest, Fees, Expenses, Payments, Etc.
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(a) Except as otherwise provided in subsection 2.2(b) of this
Agreement, each Tranche of each CP Conduit's Percentage Interest of the Covered
Portion of the Class C Note Principal Balance shall bear interest for each
Interest Accrual Period at a rate per annum equal to the sum of such CP
Conduit's Commercial Paper Rate applicable to such Tranche plus the Loan Spread
Rate. Each CP Conduit's commercial paper tranches will be selected by such CP
Conduit or its administrator, after consultation with the Seller, to the extent
reasonably practicable. Each other Class C Purchaser's (other than a CP
Conduit's) Percentage Interest of the Covered Portion of the Class C Note
Principal Balance shall bear interest for each Interest Accrual Period at a rate
per annum equal to the sum of the Alternative Rate plus the Loan Spread Rate.
Each Class C Purchaser's Percentage Interest of the Risk Portion of the Class C
Note Principal Balance shall bear interest for each Interest Accrual Period at a
rate per annum equal to the sum of the Risk Rate from time to time in effect
plus the Loan Spread Rate.
(b) If and to the extent that, and only for so long as, a CP
Conduit at any time determines in good faith that it is unable to raise or is
precluded or prohibited from raising, or that it is not advisable to raise,
funds through the issuance of Commercial Paper Notes in the commercial paper
market of the United States to finance its purchase or maintenance of its
Percentage Interest of the Covered Portion of the Class C Note Principal Balance
or any portion thereof (which determination may be based on any allocation
method employed in good faith by such CP Conduit), including by reason of market
conditions or by reason of insufficient availability under any of its Support
Facilities or the downgrading of any of its Support Parties, upon notice from
such CP Conduit to the Administrative Agent and the Issuer, such portion of such
CP Conduit's Percentage Interest of the Class C Note Principal Balance shall
bear interest at a rate per annum equal to the sum of the Alternative Rate plus
the Loan Spread Rate, rather than as otherwise determined pursuant to subsection
2.2(a) of this Agreement.
(c) The principal of the Class C Notes shall be paid as
provided in the Indenture. Accrued and unpaid interest on each Tranche of the
Class C Note Principal Balance shall be due and payable on the last day of each
Interest Accrual Period applicable to such Tranche and on any date on which the
principal of such Tranche is paid or required to be paid hereunder or under the
Indenture (in respect of the portion of principal paid or required to be paid).
Class C Monthly Interest for each Monthly Period (including the last Monthly
Period), except to the extent otherwise provided in the definition of Class C
Monthly Period contained in Section 1.1, shall be due and payable on the
Distribution Date for such Monthly Period. In the case of Class C Notes held by
the Administrative Agent, the Administrative Agent shall allocate to the Class C
Owners each payment in respect of the Class C Notes received by the
Administrative Agent in its capacity as Class C Noteholder as provided herein.
Payments in reduction of the portion of the Class C Note Principal Balance
evidenced by a Class C Note shall be allocated and applied to Class C Owners of
such Class C Note pro rata based on their respective Percentage Interests of the
Class C Note Principal Balance, or in any such case in such other proportions as
each affected Class C Purchaser may agree upon in writing from time to time with
the Administrative Agent and the Issuer. Payments of interest in respect of the
portion of the Class C Note Principal Balance evidenced by a Class C Note shall
be allocated and applied to Class C Owners of such Class C Note pro rata based
upon the respective amounts of interest due and payable to them, determined as
provided above in this Section 2.2.
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(d) The Servicer on behalf of the Issuer agrees to pay to the
Administrative Agent the amounts set forth in Section 1 of the Supplemental Fee
Letter at the times specified therein.
(e) The Servicer on behalf of the Issuer agrees to pay on
demand (i) to the Administrative Agent and the initial Class C Purchaser all
reasonable costs and expenses in connection with the preparation, execution, and
delivery of this Agreement and the other documents to be delivered hereunder or
in connection herewith, including the reasonable fees and out-of-pocket expenses
of counsel with respect thereto and the amounts due to ▇▇▇▇▇'▇ and S&P in
connection with their review of the initial Class C Purchaser's acquisition of
the Class C Notes, provided that such fees of counsel shall not exceed the
--------
amounts set forth in the Supplemental Fee Letter, (ii) to the Administrative
Agent and each Class C Purchaser, all reasonable costs and expenses in
connection with the any requested amendments of or waivers or consents under
this Agreement or the Related Documents, including in each case the reasonable
fees and out-of-pocket expenses of counsel with respect thereto, and (iii) if an
Event of Default or Servicer Default shall have occurred, to the Administrative
Agent and each Class C Purchaser, on demand, all reasonable costs and expenses
(including reasonable fees and expenses of counsel), if any, in connection with
the enforcement of this Agreement or any of the Related Documents, and the other
documents delivered thereunder or in connection therewith.
(f) The Servicer on behalf of the Issuer agrees to pay on
demand any and all stamp, transfer and other similar taxes (other than Taxes
covered by Section 2.4 hereof) and governmental fees payable in connection with
the execution, delivery, filing and recording of any of the Related Documents
and each related Support Facility, and agrees to save each Class C Purchaser and
the Administrative Agent harmless from and against any liabilities with respect
to or resulting from any delay in paying or any omission to pay such taxes and
fees.
(g) Any interest, fees or other amounts due and payable
hereunder (without regard to any limitations set forth herein on the sources
from which such amount may be paid) which are not paid on the due date thereof
(including interest payable pursuant to this clause (g)) shall accrue interest
(after as well as before judgment) at a rate per annum equal to the sum of the
Risk Rate from time to time in effect plus the Loan Spread Rate plus 2.0% from
and including the due date thereof to but excluding the date such amount is
actually paid.
(h) Unless otherwise specified in the Supplemental Fee Letter,
interest calculated by reference to the Commercial Paper Rate or the Adjusted
Eurodollar Rate shall be calculated on the basis of a 360-day year for the
actual days elapsed. Interest calculated by reference to the Prime Rate shall be
calculated on the basis of a 365- or 366-day year, as applicable, for the actual
days elapsed. Periodic fees or other periodic amounts payable hereunder shall be
calculated, unless otherwise specified in the Supplemental Fee Letter, on the
basis of a 360-day year and for the actual days elapsed.
(i) All payments to be made hereunder or under the Indenture,
whether on account of principal, interest, fees or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 2:30 p.m., New York
City time, on the due date thereof to the Administrative Agent at its account
specified in subsection 9.2(b) hereof, in United States dollars and in
immediately available funds. Payments received by the Administrative Agent after
2:30 p.m., New York City time, shall be deemed to have been made on the next
Business Day.
-12-
Notwithstanding anything herein to the contrary, if any payment due hereunder
becomes due and payable on a day other than a Business Day, the payment date
thereof shall be extended to the next succeeding Business Day and interest shall
accrue thereon at the applicable rate during such extension. To the extent that
(i) the Issuer, the Indenture Trustee, the Seller or the Servicer makes a
payment to the Administrative Agent or a Class C Purchaser or (ii) the
Administrative Agent or a Class C Purchaser receives or is deemed to have
received any payment or proceeds for application to an obligation, which payment
or proceeds or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee,
receiver or any other party under any bankruptcy or insolvency law, state or
Federal law, common law, or for equitable cause, then, to the extent such
payment or proceeds are set aside, the obligation or part thereof intended to be
satisfied shall be revived and continue in full force and effect, as if such
payment or proceeds had not been received or deemed received by the
Administrative Agent or Class C Purchaser, as the case may be.
(j) At or before 4:00 p.m., New York City time, on each Note
Rate Determination Date and on the third Business Day preceding the end of each
Interest Accrual Period, each CP Conduit shall notify the Administrative Agent
of (i) its Commercial Paper Rate, if applicable, for each Tranche in effect for
the related Monthly Period or Interest Accrual Period, as applicable, and (ii)
if applicable, the date on which the Alternative Rate became applicable to its
Percentage Interest of the Class C Note Principal Balance or a portion thereof
pursuant to subsection 2.2(b) of this Agreement. Such notification may be based
on such CP Conduit's good faith estimate of the Commercial Paper Rate if the
actual rate is not then known to such CP Conduit, and in such case, such CP
Conduit shall notify the Administrative Agent at or before 4:00 p.m., New York
City time, on the following Note Rate Determination Date of the amount of any
variation between interest payable to such CP Conduit for the preceding Monthly
Period or Interest Accrual Period, as applicable, based on such estimate and
interest which should have been payable to such CP Conduit for such Monthly
Period or Interest Accrual Period, as applicable, based on its final
determination of the applicable Commercial Paper Rate. The amount of any
shortfall in interest based on such variation shall be included in the portion
of Class C Monthly Interest payable to such CP Conduit on the following
Distribution Date, and the amount of any overpayment of interest to such CP
Conduit based on such variation shall be credited, dollar for dollar, against
the portion of Class C Monthly Interest otherwise payable to such CP Conduit for
the following Monthly Period. Each determination by a CP Conduit of its
applicable Commercial Paper Rate pursuant to this Agreement shall be conclusive
and binding on the Class C Purchasers, the Administrative Agent, the Issuer, the
Seller, the Servicer and the Indenture Trustee in the absence of manifest error.
(k) On each Note Rate Determination Date, (i) the
Administrative Agent shall notify the Servicer, with respect to each CP Conduit,
of the applicable Commercial Paper Rates for the related Monthly Period, and, if
applicable, the dates on which the Alternative Rate was applicable to the
Percentage Interest of the Class C Note Principal Balance owed to any Class C
Purchaser, and (ii) the Administrative Agent shall notify the Servicer of the
Alternative Rate and the Risk Rate, if applicable, for the related Monthly
Period. For such purposes, the Administrative Agent may rely conclusively on
notices from CP Conduits as to the interest rate or rates from time to time
applicable to their respective Percentage Interest of the Class C Note Principal
Balance. Such notification from the Administrative Agent may be based on such CP
Conduit's good faith estimate of the Commercial Paper Rate as provided to the
Administrative Agent pursuant to subsection 2.2(j) hereof, if the actual rate
and amount is not then known to the
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Administrative Agent. In any such case, the Administrative Agent shall notify
the Servicer and the Indenture Trustee on or before the next succeeding Note
Rate Determination Date of the amount of any variation between the estimated
amount of interest payable on Class C Notes accrued at the Commercial Paper Rate
and the actual amount thereof for the preceding Monthly Period. The amount of
any shortfall in interest based on such variation shall be a positive "Estimated
---------
Interest Adjustment" for such Monthly Period, and the amount of any overpayment
-------------------
of interest based on such variation shall be a negative "Estimated Interest
------------------
Adjustment" for such Monthly Period. Any positive Estimated Interest Adjustment
for a Monthly Period shall be deemed not due on the Distribution Date for such
Monthly Period, but shall be due on the next succeeding Distribution Date. An
Estimated Interest Adjustment shall not bear interest, unless not paid when due
as provided in the preceding sentence. Each determination of the Commercial
Paper Rate, the Alternative Rate and the Risk Rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Class C Purchasers, the Issuer, the Servicer and the Indenture Trustee in
the absence of manifest error.
2.3 Requirements of Law.
-------------------
(a) In the event that any Class C Purchaser shall have
reasonably determined that any Regulatory Change shall impose, modify or hold
applicable any reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other acquisition of
funds by, such Class C Purchaser and the result of any of the foregoing is to
increase the cost to such Class C Purchaser, by an amount which such Class C
Purchaser deems to be material, of maintaining its Commitment or its interest in
the Class C Notes or to reduce any amount receivable in respect thereof, then,
----
in any such case, after submission by such Class C Purchaser to the
Administrative Agent of a written request therefor and the submission by the
Administrative Agent to the Issuer and the Servicer of such written request
therefor, the Issuer shall pay to the Administrative Agent for the account of
such Class C Purchaser any additional amounts necessary to compensate such Class
C Purchaser for such increased cost or reduced amount receivable, to the extent
not already reflected in the applicable interest rate, together with interest on
any such unpaid amount from the Distribution Date following receipt by the
Issuer of such request for compensation under this subsection 2.3(a) of this
Agreement, if such request is received by the Issuer at least five Business Days
prior to the Determination Date related to such Distribution Date, and otherwise
from the following Distribution Date, until payment in full thereof (after as
well as before judgment) at the Prime Rate in effect from time to time.
(b) In the event that any Class C Purchaser shall have
reasonably determined that any Regulatory Change regarding capital adequacy has
the effect of reducing the rate of return on such Class C Purchaser's capital or
on the capital of any Person controlling such Class C Purchaser as a consequence
of its obligations hereunder or its maintenance of its Commitment or its
interest in the Class C Notes to a level below that which such Class C Purchaser
or such Person could have achieved but for such Regulatory Change (taking into
consideration such Class C Purchaser's or such Person's policies with respect to
capital adequacy) by an amount deemed by such Class C Purchaser or such Person
to be material, then, from time to time, after submission by such Class C
----
Purchaser to the Administrative Agent of a written request therefor and
submission by the Administrative Agent to the Issuer and the Servicer of such
written request therefor, the Issuer shall pay to the Administrative Agent for
the account of such Class C Purchaser such additional amount or amounts as will
compensate such Class C Purchaser or such
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Person, as applicable, for such reduction, together with interest on any such
unpaid amount from the Distribution Date following receipt by the Issuer of such
request for compensation under this subsection 2.3(b), if such request is
received by the Issuer at least five Business Days prior to the Determination
Date related to such Distribution Date, and otherwise from the following
Distribution Date, until payment in full thereof (after as well as before
judgment) at the Prime Rate in effect from time to time. Nothing in this
subsection 2.3(b) shall be deemed to require the Issuer to pay any amount to a
Class C Purchaser to the extent such Class C Purchaser has been compensated
therefor under another provision of this Agreement or to the extent such amount
is already reflected in the applicable interest rate.
(c) Each Class C Purchaser agrees that it shall use its reasonable
efforts to mitigate, reduce or eliminate any claim for compensation pursuant to
subsections 2.3(a) and 2.3(b) of this Agreement, including but not limited to
designating a different Investing Office for its Class C Notes (or any interest
therein) if such designation will avoid the need for, or reduce the amount of,
any increased amounts referred to in subsection 2.3(a) or 2.3(b) hereof and will
not, in the reasonable opinion of such Class C Purchaser, be unlawful or
otherwise disadvantageous to such Class C Purchaser or inconsistent with its
policies or result in any unreimbursed cost or expense to such Class C Purchaser
or in an increase in the aggregate amount payable under subsections 2.3(a) and
2.3(b) hereof.
(d) Each Class C Purchaser claiming increased amounts described in
subsection 2.3(a) or 2.3(b) of this Agreement will furnish to the Administrative
Agent (together with its request for compensation) a certificate prepared in
good faith setting forth the basis and the calculation of the amount (in
reasonable detail) of each request by such Class C Purchaser for any such
increased amounts referred to in subsection 2.3(a) or 2.3(b) hereof. Any such
certificate shall be conclusive absent manifest error, and the Administrative
Agent shall deliver a copy thereof to the Issuer and the Servicer. Failure on
the part of any Class C Purchaser to demand compensation for any amount pursuant
to subsection 2.3(a) or 2.3(b) hereof with respect to any period shall not
constitute a waiver of such Class C Purchaser's right to demand compensation
with respect to such period.
(e) If (i) the Issuer becomes obligated to pay additional amounts to
any Class C Purchaser pursuant to Section 2.3(a) or, (ii) any Class C Purchaser
gives notice of the occurrence of any circumstances described in Section 2.3(b)
that continues for more than 90 days, or (iii) any Class C Purchaser refuses to
consent to any amendment, waiver or other action requested by Issuer, then, in
each case Issuer may designate a bank which is acceptable to the Administrative
Agent in its reasonable discretion (such other bank, a "Replacement Bank") to
purchase the related Class C Note, without recourse to or warranty by, or
expense to, the affected Class C Purchaser for a purchase price equal to the
outstanding principal amount of the Class C Notes held by the related Class C
Note Purchaser plus any accrued but unpaid interest on such Class C Notes and
all accrued but unpaid fees owed to the affected Class C Purchaser and any other
amounts payable to the affected Class C Purchaser hereunder, and, upon such
purchase, such Class C Purchaser shall no longer be party hereto or have any
rights hereunder (other than indemnities and other similar rights applicable to
such Class C Purchaser prior to the date of such assignment and assumption) and
shall be relieved from all obligations to the Issuer hereunder, and the
Replacement Bank shall succeed to the rights and obligations of such Class C
Purchaser hereunder.
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2.4 Taxes.
-----
(a) All payments made to the Class C Purchasers or the Administrative
Agent under this Agreement and the Indenture (including all amounts payable with
respect to the Class C Notes) shall, to the extent allowed by law, be made free
and clear of, and without deduction or withholding for or on account of, any
present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority (collectively,
"Taxes"), excluding (i) income taxes (including branch profit taxes, minimum
-----
taxes and taxes computed under alternative methods, at least one of which is
based on or measured by net income), franchise taxes (imposed in lieu of income
taxes), or any other taxes based on or measured by the net income of such Class
C Purchaser, Participant or the Administrative Agent (as the case may be) or the
gross receipts or income of such Class C Purchaser, Participant or the
Administrative Agent (as the case may be); (ii) any Taxes that would not have
been imposed but for the failure of such Class C Purchaser, Participant or the
Administrative Agent, as applicable, to provide and keep current (to the extent
legally able) any certification or other documentation required to qualify for
an exemption from, or reduced rate of, any such Taxes or required by this
Agreement to be furnished by such Class C Purchaser, Participant or the
Administrative Agent, as applicable; and (iii) any Taxes imposed as a result of
a change by any Class C Purchaser or Participant of its Investing Office (other
than changes mandated by this Agreement, including subsection 2.3(c) hereof, or
required by law) (all such excluded taxes being hereinafter called "Excluded
--------
Taxes"). If, as a result of any change in law, treaty or regulation or in the
-----
interpretation or administration thereof by any governmental or regulatory
agency or body charged with the administration or interpretation thereof, or the
adoption of any law, treaty or regulation, any Taxes, other than Excluded Taxes,
are required to be withheld from any amounts payable to a Class C Purchaser or
the Administrative Agent hereunder or under the Indenture, then after submission
----
by any Class C Purchaser to the Administrative Agent (in the case of an amount
payable to a Class C Purchaser) and by the Administrative Agent to the Issuer
and the Servicer of a written request therefor, the amounts so payable to such
Class C Purchaser or the Administrative Agent, as applicable, shall be increased
by the Issuer, and the Issuer shall pay to the Administrative Agent for the
account of such Class C Purchaser or for its own account or to the
Administrative Agent, as applicable, the amount of such increase to the extent
necessary to yield to such Class C Purchaser or Agent or the Administrative
Agent, as applicable (after payment of all such Taxes) interest or any such
other amounts payable hereunder or thereunder at the rates or in the amounts
specified in this Agreement and the Indenture; provided, however, that the
-------- -------
amounts so payable to such Class C Purchaser or the Administrative Agent shall
not be increased pursuant to this subsection 2.4(a) if such requirement to
withhold results from the failure of such Person to comply with subsection
2.4(c) hereof. Whenever any Taxes are payable on or with respect to amounts
distributed to a Class C Purchaser or the Administrative Agent, as promptly as
possible thereafter the Servicer shall send to such Class C Purchaser or the
Administrative Agent a certified copy of an original official receipt showing
payment thereof. If the Issuer fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to such Class C Purchaser or the
Administrative Agent the required receipts or other required documentary
evidence, the Issuer shall pay to the Administrative Agent on behalf of such
Class C Purchaser or the Administrative Agent for its own account, as
applicable, any incremental taxes, interest or penalties that may become payable
by such Class C Purchaser or the Administrative Agent, as applicable, as a
result of any such failure.
-16-
(b) A Class C Purchaser claiming increased amounts under subsection
2.4(a) hereof for Taxes paid or payable by such Class C Purchaser will furnish
to the Administrative Agent a certificate prepared in good faith setting forth
the basis and amount of each request by such Class C Purchaser for such Taxes,
and the Administrative Agent shall deliver a copy thereof to the Issuer and the
Servicer. The Administrative Agent claiming increased amounts under subsection
2.4(a) hereof for its own account for Taxes paid or payable by the
Administrative Agent, will furnish to the Issuer and the Servicer a certificate
prepared in good faith setting forth the basis and amount of each request by the
Administrative Agent for such Taxes. Any such certificate of a Class C Purchaser
or the Administrative Agent shall be conclusive absent manifest error. Failure
on the part of any Class C Purchaser or the Administrative Agent to demand
additional amounts pursuant to subsection 2.4(a) of this Agreement with respect
to any period shall not constitute a waiver of the right of such Class C
Purchaser or the Administrative Agent, as the case may be, to demand
compensation with respect to such period. All such amounts shall be due and
payable to the Administrative Agent on behalf of such Class C Purchaser or the
Administrative Agent for its own account, as the case may be, on the
Distribution Date following receipt by the Issuer of such certificate, if such
certificate is received by the Issuer at least five Business Days prior to the
Determination Date related to such Distribution Date and otherwise shall be due
and payable on the following Distribution Date (or, if earlier, on the Series
Termination Date).
(c) Each Class C Purchaser and each Participant holding an interest
in Class C Notes agrees that prior to the date on which the first interest or
fee payment hereunder is due thereto, it will deliver to the Issuer, the Seller,
the Servicer, the Indenture Trustee and the Administrative Agent (i) if such
Class C Purchaser or Participant is not incorporated under the laws of the
United States or any State thereof, two duly completed copies of the U.S.
Internal Revenue Service Form W-8ECI or Form W-8BEN claiming treaty benefits, or
in either case successor applicable forms required to evidence that the Class C
Purchaser or Participant is entitled to receive payments under this Agreement
and with respect to the Class C Notes without deduction or withholding of any
United States federal income taxes, (ii) a duly completed U.S. Internal Revenue
Service Form W-9 or successor applicable or required forms, and (iii) such other
forms and information as may be required to confirm the availability of any
applicable exemption from United States federal, state or local withholding
taxes. Each Class C Purchaser or Participant holding an interest in Class C
Notes also agrees to deliver to the Issuer, the Seller, the Servicer, the
Indenture Trustee and the Administrative Agent two further copies of such Form
W-8ECI or Form W-8BEN and Form W-9, or such successor applicable forms or other
manner of certification, as the case may be, on or before the date that any such
form expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent form previously delivered by it hereunder, and such
extensions or renewals thereof as may reasonably be requested by the Servicer,
the Seller or the Administrative Agent, unless in any such case, solely as a
result of a change in treaty, law or regulation occurring prior to the date on
which any such delivery would otherwise be required, the Class C Purchaser is no
longer eligible to deliver the then-applicable form set forth above and so
advises the Servicer, the Seller and the Administrative Agent. Each Class C
Purchaser certifies, represents and warrants as of the Closing Date, each
Assignee and each Participant (in either case other than a Support Party) shall
certify, represent and warrant as a condition of acquiring its Assignment or
Participation as of the effective date of the Transfer Supplement to which it is
a party or of such Participation, as the case may be, and each Support Party
shall certify, represent and warrant as of the effective date of its becoming a
Support Party, that (x) it is entitled to receive payments under this Agreement
-17-
and with respect to the Class C Notes without deduction or withholding of any
United States federal income taxes and (y) it is entitled to an exemption from
United States backup withholding tax. Notwithstanding anything to the contrary
herein, each of the Issuer, the Servicer and the Trustee shall be entitled to
withhold any amount that it reasonably determines is required to be withheld
pursuant to Section 1446 of the Code, and such amount shall be deemed to have
been paid to the Class C Purchaser, Assignee or Participant for all purposes of
the Agreement.
2.5 Indemnification.
---------------
(a) The Servicer agrees to indemnify and hold harmless the
Administrative Agent and each Class C Purchaser and any director, officer,
employee or agent thereof (each such Person being an "Indemnitee") from and
----------
against any and all claims, damages, losses, liabilities, costs or expenses
(including reasonable fees and out-of-pocket expenses of counsel) whatsoever
(including claims under federal or state securities laws), which the Indemnitee
may incur (or which may be claimed against the Indemnitee) by reason of or in
connection with (i) the execution and delivery of this Agreement or any Related
Document or the Class C Notes or the assignment hereof to any Support Party,
(ii) the offer and sale by or on behalf of the Issuer, the Seller or any of
their affiliates of the Series 2001-A Notes or (iii) the other transactions
contemplated hereby, except (A) to the extent that any such claim, damage, loss,
liability, cost or expense shall be caused by the willful misconduct or gross
negligence of the Indemnitee, (B) to the extent that any such claim, damage,
loss, liability, cost or expense relates to Taxes or amounts payable by the
Issuer under Section 2.3 or 2.4 hereof, (C) for recourse for the payment of
principal of or interest on, or other amounts due in respect of, the Class C
Notes as a result of nonpayment by Obligors on the Accounts or the related
Receivables or (D) is attributable to market fluctuations or other similar
market or investment risk associated with ownership of the Class C Notes. The
foregoing indemnity shall include indemnification for any claims, damages,
losses, liabilities, costs or expenses (including fees and expenses of counsel)
to which the Indemnitee may become subject under the Act, the Securities
Exchange Act of 1934, as amended, the Investment Company Act of 1940, as
amended, or any other Federal or state law or regulation (including Federal
banking laws and regulations) arising out of or based upon any untrue statement
or alleged untrue statement of a material fact in the Registration Statement at
the time it became effective or the Prospectus or any amendments thereof or
supplements thereto or arising out of or based upon the omission or the alleged
omission to state a material fact necessary to make the statements in the
Registration Statement at the time it became effective or the Prospectus or any
amendment thereof or supplement thereto, in light of the circumstances in which
they were made, not misleading. Subject to the limitations set forth above, but
without limiting the generality of the foregoing, the Servicer agrees to
indemnify and hold harmless the Administrative Agent from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including at any time following the payment of the obligations under this
Agreement, including payment of the Class C Note Principal Balance) be imposed
on, incurred by or asserted against the Administrative Agent in any way relating
to or arising out of this Agreement, or any documents contemplated by or
referred to herein or the transactions contemplated hereby or any action taken
or omitted by the Administrative Agent under or in connection with any of the
foregoing; provided that the Servicer shall not be liable under this sentence
--------
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of the Administrative
-18-
Agent resulting from its own gross negligence or willful misconduct. Promptly
after receipt by the Administrative Agent or a Class C Purchaser of notice of
the commencement of any action, the Administrative Agent or Class C Purchaser,
as the case may be, will, if a claim in respect thereof is to be made under this
subsection 2.5(a), notify the Servicer in writing of the commencement thereof;
provided, however, the omission to so notify the Servicer will not relieve the
-------- -------
Servicer from any liability which it may have to the Administrative Agent or
Class C Purchaser under this subsection 2.5(a) except to the extent the Servicer
was actually prejudiced by the failure to give such notices promptly.
(b) FCNB and any Successor Servicer, by accepting its appointment
pursuant to the Transfer and Servicing Agreement, (i) shall agree to be bound by
the terms, covenants and conditions contained herein applicable to the Servicer
and to be subject to the duties and obligations of the Servicer hereunder, (ii)
as of the date of its acceptance, shall be deemed to have made with respect to
itself only the representations and warranties made by the Servicer in
subsections 4.1(a) through 4.1(e) hereof (in the case of subsection 4.1(a) with
appropriate factual changes) and (iii) shall agree to indemnify and hold
harmless any Indemnitee from and against any and all claims, damages, losses,
liabilities, costs or expenses (including the fees and expenses of counsel)
whatsoever which such Indemnitee may incur (or which may be claimed against such
Indemnitee) by reason of the negligence or willful misconduct of such Servicer
in exercising its powers and carrying out its obligations under this Agreement,
the Transfer and Servicing Agreement or any Related Document.
(c) In the event that for any reason, (i) the basis for calculation
of interest on any CP Conduit's Percentage Interest of the Class C Note
Principal Balance shall change from the Commercial Paper Rate to the Alternative
Rate, (ii) any CP Conduit receives any repayment of its share of the Class C
Note Principal Balance, and the date of such change or of such repayment is not
the maturity date for all Commercial Paper Notes allocated by such CP Conduit to
funding its purchase or maintenance of the affected portion of its Percentage
Interest of the Class C Note Principal Balance, or (iii) any Class C Purchaser
receives any repayment of its share of the Class C Note Principal Balance on a
date other than a Distribution Date or upon fewer than two Business Days' prior
(or, with respect to amounts listed at the Alternative Rate based on the
Adjusted Eurodollar Rate, two Business Days') written notice, then in any such
----
case the Issuer agrees to indemnify each affected Class C Purchaser against, and
to promptly pay on demand directly to such Class C Purchaser the amount equal to
any loss or reasonable out-of-pocket expense suffered by such Class C Purchaser
as a result of such change or such repayment, including, in the case of a CP
Conduit, any actual loss, cost or expense suffered by such CP Conduit by reason
of its issuance of Commercial Paper Notes or its incurrence of other obligations
reasonably allocated by such CP Conduit to its funding or the maintenance of its
funding of its share of the Class C Note Principal Balance, or, in the case of
any Class C Purchaser, redeploying funds prepaid or repaid, in amounts which
correspond to its share of the Class C Note Principal Balance. A statement
setting forth in reasonable detail the calculations of any additional amounts
payable pursuant to this Section submitted by a Class C Purchaser or Agent or by
the Administrative Agent, as the case may be, to the Issuer and the Servicer and
shall be conclusive absent manifest error.
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ARTICLE 3 CONDITIONS PRECEDENT
3.1 Conditions to Initial Purchase. The following were conditions
------------------------------
precedent to the purchase of the Class C Notes by the Class C Purchasers on the
Closing Date:
(a) the representations and warranties of the Issuer and FCNB set
forth or referred to in Sections 4.1 and 4.2, respectively, hereof shall be true
and correct in all material respects on the Closing Date as though made on and
as of the Closing Date, and no event which of itself or with the giving of
notice or lapse of time, or both, would constitute a Series 2001-A Pay Out Event
shall have occurred and be continuing on the Closing Date;
(b) the Supplemental Fee Letter and the Supplemental Spread Account
Letter shall have been executed and delivered by the Issuer and FCNB to the
Administrative Agent;
(c) the Class A Notes in the Class A Initial Note Principal Balance
and the Class B Notes in the Class B Initial Note Principal Balance shall have
been duly issued in accordance with the Indenture; the Spread Account shall have
been established with the Indenture Trustee, and the amount on deposit in the
Spread Account shall equal at least the Spread Account Cap;
(d) the Seller shall have paid all fees payable on the Closing Date
to the Administrative Agent (for its own account or for the account of the
initial Class C Purchasers) described in the Supplemental Fee Letter and all
reasonable and appropriately invoiced costs and expenses of the Administrative
Agent and Class C Purchasers payable by the Seller, to the extent provided
herein, in connection with the transactions contemplated hereby; and
(e) the Administrative Agent on behalf of the Class C Purchasers
shall have received on the Closing Date the following items, each of which shall
be in form and substance satisfactory to the Administrative Agent:
(i) an Officer's Certificate of FCNB confirming the
satisfaction of the conditions set forth in clauses (a) and (c);
(ii) a copy of (A) the certificate of incorporation and by-laws
of, and an incumbency certificate with respect to its officers executing any of
the Related Documents on the Closing Date on behalf of FCNB, certified by its
authorized officer, and (B) resolutions of the Board of Directors (or an
authorized committee thereof) of FCNB with respect to the Related Documents to
which it is party, certified by its authorized officer;
(iii) a certificate issued on a recent date by the Comptroller
of the Currency evidencing the legal existence and good standing of FCNB as a
national banking association;
(iv) the favorable written opinions of counsel for the Issuer,
the Owner Trustee, the Indenture Trustee and FCNB, addressed to the
Administrative Agent and Class C Purchaser, or accompanied by a letter providing
that the Administrative Agent and Class C Purchaser may rely on such opinions as
if they were addressed to them, and dated the Closing Date, covering general
corporate matters, the due execution and delivery of, and the enforceability of,
each of the Related Documents to which the Issuer, the Owner Trustee, the
-20-
Indenture Trustee and FCNB (individually or in any other capacity) is party,
sale/security interest matters and such other matters as the Administrative
Agent may request;
(v) evidence of the due execution and delivery by the Owner
Trustee, on behalf of the Trust, and the Indenture Trustee of the Related
Documents to which each is party;
(vi) an executed copy of the Pooling and Servicing Agreement,
the Collateral Series Supplement, the Transfer and Servicing Agreement, the
Master Indenture, the Supplemental Indenture, the Trust Agreement and the
Administration Agreement;
(vii) a certificate of the Indenture Trustee as to the
establishment of certain accounts as provided in the Indenture;
(viii) the duly executed Class C Note(s) registered in the name
of the Administrative Agent as nominee on behalf of the Class C Owners;
(ix) evidence satisfactory to the Administrative Agent that
financing statements duly executed by First Consumers Master Trust, FCNB and the
Issuer or other, similar instruments or documents, as may be necessary or, in
the opinion of the Administrative Agent or any Class C Purchaser, desirable
under the Uniform Commercial Code of all appropriate jurisdictions or any
comparable law to perfect the transfers (including grants of security interests)
under the Related Documents have been delivered and, if appropriate, have been
duly filed or recorded and that all filing fees, taxes or other amounts required
to be paid in connection therewith have been paid;
(x) certified copies of requests for information or copies (or
a similar search report certified by a party acceptable to the Administrative
Agent), dated a date reasonably near to the Closing Date, listing all effective
financing statements which name First Consumers Master Trust, FCNB or the Issuer
(under its present name and any previous name) as debtor and which are filed in
the jurisdictions in which the statements referred to in clause (x) above were
or are to be filed, together with copies of such financing statements (none of
which, other than financing statements naming the party under the Related
Documents to which transfers (including grants of security interests) thereunder
purport to have been made shall cover any of the property purported to be
conveyed thereunder);
(xi) evidence satisfactory to the Administrative Agent that the
Class C Notes have been rated at least Baa2 by ▇▇▇▇▇'▇ Investors Service and BBB
by Standard & Poor's.
(xii) evidence satisfactory to each initial CP Conduit that its
purchase of Class C Notes and Class C Note Principal Balance Increases hereunder
will not result in a reduction or withdrawal of the rating of its Commercial
Paper Notes by Moody's, S&P or any other nationally recognized rating agency
(xiii) evidence satisfactory to the Administrative Agent that all
amounts outstanding under First Consumers Master Trust Series 2000-A have been
repaid in full;
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(xiv) evidence satisfactory to the Administrative Agent that no
action, suit, proceeding or investigation by or before any Governmental
Authority shall have been instituted to restrain or prohibit the consummation
of, or to invalidate, the transactions contemplated by the Related Documents in
any material respect; and
(xv) such additional documents, instruments, certificates or
letters as the Administrative Agent or Class C Purchaser may reasonably request.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of FCNB. FCNB represents and
--------------------------------------
warrants to the Class C Purchasers and the Administrative Agent that the
representations and warranties of FCNB (as Servicer) set forth in the Transfer
and Servicing Agreement, the Indenture and the other Related Documents are true
and correct as of the date hereof (except for representations or warranties
which relate to a specific date, which shall be true and correct as of such
date). FCNB further represents and warrants to, and agrees with, each Class C
Purchaser and the Administrative Agent that, as of the date hereof:
(a) FCNB is a national banking association duly organized, validly
existing and in good standing under the laws of the United States of America,
with full power and authority under such laws 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 Related Documents to which it is a party.
(b) FCNB has the power and authority to execute, deliver and perform
this Agreement and the Related Documents to which it is a party and all the
transactions contemplated hereby and thereby and has taken all necessary action
to authorize the execution, delivery and performance of this Agreement and such
Related Documents. When executed and delivered, each of this Agreement and each
Related Document to which FCNB is a party will constitute the legal, valid and
binding agreement of FCNB, enforceable in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium and other laws of general applicability relating to or
affecting creditors' rights generally and the rights of creditors from time to
time in effect. The enforceability of FCNB's obligations under such agreements
is also subject to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law, and
indemnification sought in respect of securities laws violations may be limited
by public policy.
(c) No consent, license, approval or authorization of, or
registration with, any governmental authority, bureau or agency is required to
be obtained in connection with the execution, delivery or performance of each of
this Agreement or any Related Documents that has not been duly obtained and
which is not and will not be in full force and effect on the Closing Date,
except such that may be required by the blue sky laws of any state and except
those which the failure to obtain individually or in the aggregate, would not
have a material adverse effect on the Issuer or FCNB or the transactions
contemplated by, or the ability of the Issuer or FCNB to perform its respective
obligations under, this Agreement or the Related Documents.
(d) The execution, delivery and performance of each of this Agreement
and the Related Documents do not violate any provision of any existing law or
regulation applicable
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to FCNB, any order or decree of any court to which FCNB is subject, its charter
or by-laws or any mortgage, indenture, contract or other agreement to which FCNB
is a party or by which it or any significant portion of FCNB's properties is
bound (other than violations of such laws, regulations, orders, decrees,
mortgages, indentures, contracts and other agreements which do not affect the
legality, validity or enforceability of any of such agreements or the
Receivables and which, individually or in the aggregate, would not have a
material adverse effect on the Issuer or FCNB or the transactions contemplated
by, or the ability of the Issuer or FCNB to perform its respective obligations
under, this Agreement or the Related Documents).
(e) There is no litigation or administrative proceeding before
any court, tribunal or governmental body presently pending or, to the knowledge
of FCNB, threatened, against FCNB with respect to this Agreement and the Related
Documents, the transactions contemplated hereby or thereby or the issuance of
the Series 2001-A Notes, and there is no such litigation or proceeding against
FCNB or any significant portion of FCNB properties, in each case which would
have a material adverse effect on the Issuer or FCNB or the transactions
contemplated by, or the ability of the Issuer or FCNB to perform its respective
obligations under, this Agreement or the Related Documents.
(f) The Indenture is duly qualified or is not required to be
qualified under the Trust Indenture Act of 1939, and the Issuer is not required
to be registered under the Investment Company Act.
(g) The aggregate amount of the Receivables in the Accounts as
of February 28, 2001 was $1,115,087,125, consisting of $1,085,999,637 of
Principal Receivables and $29,087,488 of Finance Charge Receivables.
(h) On the Closing Date and after giving effect to the
purchase of the Class C Noteholders' Interest and the issuance of the Series
2001-A Notes, no Series 2001-A Pay Out Event has occurred and is continuing, and
no event, act or omission has occurred and is continuing which, with the lapse
of time, the giving of notice or both, would constitute a Series 2001-A Pay Out
Event.
(i) When the Registration Statement became effective, when the
Prospectus was first filed pursuant to Rule 424(b) under the Act, when any
amendment or supplement to the Registration Statement or Prospectus is filed
with the Commission, and at the Closing Date, neither the Registration Statement
nor the Prospectus nor any amendment thereof or any supplement thereto (a)
contained or will contain any untrue statement of a material fact or omitted or
will omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading or
(b) disclosed or will disclose the identity of the Administrative Agent or any
Class C Purchaser.
(j) FCNB has delivered to the Agent complete and correct
copies of the publicly available portions of FCNB's Consolidated Reports of
Condition and Income for the quarter ended December 31, 2000. There has not been
any material adverse change in the business, operations, financial condition,
properties or assets of the FCNB since the quarter ended December 31, 2000
except as disclosed in the Prospectus.
-23-
4.2 Representations and Warranties of the Issuer. The Issuer
--------------------------------------------
represents and warrants to the Class C Purchasers and the Administrative Agent
that the representations and warranties of the Issuer set forth in the Transfer
and Servicing Agreement, the Indenture and the other Related Documents are true
and correct as of the date hereof (except for representations or warranties
which relate to a specific date, which shall be true and correct as of such
date). The Issuer further represents and warrants to, and agrees with, each
Class C Purchaser and the Administrative Agent that, as of the date hereof:
(a) The Issuer is a common law trust duly organized, validly
existing and in good standing under the laws of the State of Illinois, with full
power and authority under such laws 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 Related Documents to which it is a party.
(b) The Issuer has the power and authority to execute, deliver
and perform this Agreement and the Related Documents to which it is a party and
all the transactions contemplated hereby and thereby and has taken all necessary
trust action to authorize the execution, delivery and performance of this
Agreement and such Related Documents. When executed and delivered, each of this
Agreement and each Related Document to which the Issuer is a party will
constitute the legal, valid and binding agreement of the Issuer, enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium and other laws of
general applicability relating to or affecting creditors' rights generally and
the rights of creditors from time to time in effect. The enforceability of the
Issuer's obligations under such agreements is also subject to general principles
of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law, and indemnification sought in respect of
securities laws violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or
registration with, any governmental authority, bureau or agency is required to
be obtained in connection with the execution, delivery or performance of each of
this Agreement or any Related Documents that has not been duly obtained and
which is not and will not be in full force and effect on the Closing Date,
except such that may be required by the blue sky laws of any state and except
those which the failure to obtain individually or in the aggregate, would not
have a material adverse effect on the Issuer, the Seller or FCNB or the
transactions contemplated by, or Issuer's ability to perform its obligations
under, this Agreement or the Related Documents.
(d) The execution, delivery and performance of each of this
Agreement and the Related Documents do not violate any provision of any existing
law or regulation applicable to the Issuer, any order or decree of any court to
which the Issuer is subject, its governing instrument or any mortgage,
indenture, contract or other agreement to which the Issuer is a party or by
which it or any significant portion of the Issuer's properties is bound (other
than violations of such laws, regulations, orders, decrees, mortgages,
indentures, contracts and other agreements which do not affect the legality,
validity or enforceability of any of such agreements or the Receivables and
which, individually or in the aggregate, would not have a material adverse
effect on the Issuer or the transactions contemplated by, or the Issuer's
ability to perform its respective obligations under, this Agreement or the
Related Documents.)
-24-
(e) There is no litigation or administrative proceeding before
any court, tribunal or governmental body presently pending or, to the knowledge
of the Issuer, threatened, against the Issuer with respect to this Agreement and
the Related Documents, the transactions contemplated hereby or thereby or the
issuance of the Series 2001-A Notes, and there is no such litigation or
proceeding against the Issuer or any significant portion of the Issuer
properties, in each case which would have a material adverse effect on the
Issuer or the transactions contemplated by, or the ability of the Issuer to
perform its obligations under, this Agreement or the Related Documents.
(f) The Indenture is duly qualified or is not required to be
qualified under the Trust Indenture Act of 1939, and the Issuer is not required
to be registered under the Investment Company Act.
(g) On the date hereof, no Series 2001-A Pay Out Event has
occurred and is continuing, and no event, act or omission has occurred and is
continuing which, with the lapse of time, the giving of notice or both, would
constitute a Series 2001-A Pay Out Event.
4.3 Representations and Warranties of the Class C Purchasers.
--------------------------------------------------------
Each of the Class C Purchasers severally (each with respect to itself only)
represents and warrants to, and agrees with, the Seller, the Issuer, FCNB and
the Servicer that:
(a) Such Class C Purchaser has been duly authorized and is
validly existing and in good standing under the laws of its jurisdiction of
organization, with power and authority to own its properties and to transact the
business in which it is now engaged;
(b) Such Class C Purchaser has all requisite power and
authority to enter into and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby and thereby. The execution and
delivery by such Class C Purchaser of this Agreement and the consummation by
such Class C Purchaser of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporation action on the part of such
Class C Purchaser. This Agreement has been duly and validly executed and
delivered by such Class C Purchaser and constitutes a legal, valid and binding
obligation of such Class C Purchaser, enforceable against such Class C Purchaser
in accordance with its terms, subject as to enforcement to bankruptcy,
reorganization, insolvency, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity. Neither the execution and delivery by such Class C
Purchaser of this Agreement nor the consummation by such Class C Purchaser of
any of the transactions contemplated hereby, nor the fulfillment by such Class C
Purchaser of the terms hereof, will conflict with, or violated, result in a
breach of or constitute a default under (i) any term or provision of the
certificate of incorporation or articles of association or By-laws of such Class
C Purchaser or any Requirement of Law applicable to such Class C Purchaser or
(ii) any term or provision of any indenture or other agreement or instrument, to
which such Class C Purchaser is a party or by which such Class C Purchaser or
any portion of its properties are bound;
(c) Such Class C Purchaser understands and agrees that receipt
by the Issuer of a duly executed Investment Letter pursuant to Section 8.1
hereof is a condition precedent to the Issuer's obligations hereunder to sell
the Class C Notes;
-25-
(d) Such Class C Purchaser is not required to register as an
"investment company" nor is such Class C Purchaser controlled by an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.;
and
(e) No registration with, consent or approval of or other
action by any federal, state, or other governmental authority or regulatory body
having jurisdiction over such Class C Purchaser is required in connection with
the execution, delivery or performance by such Class C Purchaser of this
Agreement.
4.4 Representations and Warranties of Seller. Seller
----------------------------------------
represents and warrants to the Class C Purchasers and the Administrative Agent
that the representations and warranties of Seller set forth in the Transfer and
Servicing Agreement, the Indenture and the other Related Documents are true and
correct as of the date hereof (except for representations or warranties which
relate to a specific date, which shall be true and correct as of such date).
Seller further represents and warrants to, and agrees with, each Class C
Purchaser and the Administrative Agent that, as of the date hereof:
(a) The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, with full
power and authority under such laws 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 Related Documents to which it is a party.
(b) The Seller has the power and authority to execute, deliver
and perform this Agreement and the Related Documents to which it is a party and
all the transactions contemplated hereby and thereby and has taken all necessary
trust action to authorize the execution, delivery and performance of this
Agreement and such Related Documents. When executed and delivered, this
Agreement and each Related Document to which the Seller is a party will
constitute the legal, valid and binding agreement of the Seller, enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium and other laws of
general applicability relating to or affecting creditors' rights generally and
the rights of creditors from time to time in effect. The enforceability of the
Seller's obligations under such agreements is also subject to general principles
of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law, and indemnification sought in respect of
securities laws violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or
registration with, any governmental authority, bureau or agency is required to
be obtained in connection with the execution, delivery or performance of each of
this Agreement or any Related Documents that has not been duly obtained and
which is not and will not be in full force and effect on the Closing Date,
except such that may be required by the blue sky laws of any state and except
those which the failure to obtain individually or in the aggregate, would not
have a material adverse effect on the Seller or the transactions contemplated
by, or Seller's ability to perform its obligations under, this Agreement or the
Related Documents.
(d) The execution, delivery and performance of each of this
Agreement and the Related Documents do not violate any provision of any existing
law or regulation applicable
-26-
to the Seller, any order or decree of any court to which the Seller is subject,
its governing instrument or any mortgage, indenture, contract or other agreement
to which the Seller is a party or by which it or any significant portion of the
Seller's properties is bound (other than violations of such laws, regulations,
orders, decrees, mortgages, indentures, contracts and other agreements which do
not affect the legality, validity or enforceability of any of such agreements or
the Receivables and which, individually or in the aggregate, would not have a
material adverse effect on the Seller or the transactions contemplated by, or
the Seller's ability to perform its respective obligations under, this Agreement
or the Related Documents).
(e) There is no litigation or administrative proceeding before
any court, tribunal or governmental body presently pending or, to the knowledge
of the Seller, threatened, against the Seller with respect to this Agreement and
the Related Documents, the transactions contemplated hereby or thereby or the
issuance of the Series 2001-A Notes, and there is no such litigation or
proceeding against the Seller or any significant portion of the Seller
properties, in each case which would have a material adverse effect on the
Seller or the transactions contemplated by, or the ability of the Seller to
perform its obligations under, this Agreement or the Related Documents.
(f) The Indenture is duly qualified or is not required to be
qualified under the Trust Indenture Act of 1939, and the Seller is not required
to be registered under the Investment Company Act.
(g) On the Closing Date and after giving effect to the
purchase of the Class C Noteholders' Interest and the issuance of the Series
2001-A Notes, no Series 2001-A Pay Out Event has occurred and is continuing, and
no event, act or omission has occurred and is continuing which, with the lapse
of time, the giving of notice or both, would constitute a Series 2001-A Pay Out
Event.
ARTICLE 5 COVENANTS
5.1 Covenants. Each of the Seller, FCNB, the Servicer and the
---------
Issuer severally covenants and agrees, in each case as to itself individually or
in such respective capacities, each with respect to itself only, through the
Series Termination Date and thereafter so long as any amount of the Class C Note
Principal Balance shall remain outstanding or any monetary obligation arising
hereunder shall remain unpaid, unless the Required Class C Owners shall
otherwise consent in writing, that:
(a) Each of the Seller, FCNB, the Servicer and the Issuer
shall perform in all material respects each of the respective agreements,
warranties and indemnities applicable to it under the Related Documents and
comply in all material respects with each of the respective terms and provisions
applicable to it under the Related Documents to which it is party, which
agreements, warranties and indemnities are hereby incorporated by reference into
this Agreement as if set forth herein in full; and each of the Servicer and the
Issuer shall take all reasonable actions to enforce the obligations of each of
the other parties to the Pooling and Servicing Agreement, the Collateral Series
Supplement and the Collateral Certificate which are contained therein;
-27-
(b) The Seller, the Issuer and the Servicer, as applicable,
shall promptly furnish to the Administrative Agent (i) a copy of each
certificate, report, statement, notice or other communication (including without
limitation, a copy of any Opinion of counsel delivered pursuant to Section 8.9
of the Indenture) furnished by or on behalf of the Seller, the Issuer or the
Servicer, as applicable, to the holders of Series 2001-A Notes, to the Indenture
Trustee or to the Rating Agencies (other than any portion of any such
communication relating to other outstanding Series) concurrently therewith and
furnish to the Administrative Agent promptly after receipt thereof a copy of
each notice, demand or other communication received by or on behalf of the
Seller, the Issuer or the Servicer, as applicable, pursuant to this Agreement,
the Transfer and Servicing Agreement, the Indenture, the Indenture Supplement or
any Pooling and Servicing Agreement or the Collateral Series Supplement (other
than any portion of any such communication relating to other outstanding
Series), and (ii) such other information, documents records or reports
respecting the Accounts, the Receivables, the Issuer, the Seller or the Servicer
which is in the possession or under the control of the Issuer, the Seller or the
Servicer, as the case may be, as the Administrative Agent may from time to time
reasonably request. Each such communication provided hereunder shall be
furnished to the Administrative Agent in writing;
(c) The Issuer or the Servicer, as applicable, shall furnish
to the Administrative Agent (i) a copy of each annual certified public
accountants' reports received by the Indenture Trustee pursuant to Section 3.6
of the Transfer and Servicing Agreement (other than any portion of such reports
relating to other outstanding Series), (ii) with respect to each Distribution
Date with respect to the Transfer and Servicing Agreement, a copy of the
completed report furnished to the Indenture Trustee pursuant to Section 3.4(b)
of the Transfer and Servicing Agreement, and (iii) a copy of any other report
furnished to the Indenture Trustee pursuant to Section 3.5 of the Transfer and
Servicing Agreement (other than any portion of such reports relating to other
outstanding Series);
(d) There shall be no assets included in the Trust Assets
other than any Collateral Certificate or, upon termination of the First
Consumers Master Trust, the assets previously included in or includible in the
First Consumers Master Trust or as consented to by the Administrative Agent;
(e) Each of the Seller, FCNB, the Servicer and the Issuer
shall furnish to the Administrative Agent promptly after known to such party,
information with respect to any action, suit or proceeding involving such party
or any of its Affiliates (other than, in the case of the Seller, Servicer, FCNB
and the Issuer) by or before any court or any Governmental Authority which, if
adversely determined, would be reasonably likely to result in a material and
adverse effect on such party or the transactions contemplated by, or such
party's ability to perform its obligations under, this Agreement or the Related
Documents;
(f) From the Closing Date until the Termination Date, each of
the Issuer, the Seller and the Servicer, as applicable, will, at any time and
from time to time during regular business hours, on at least five Business Days'
(or if a Series 2001-A Pay Out Event or event or condition which, with the
passage of time or the giving of notice, or both, would become a Series 2001-A
Pay Out Event has occurred, one Business Day's) notice to the Issuer, the Seller
or the Servicer, as the case may be, permit the Administrative Agent, or its
agents or representatives, at the Issuer's, the Seller's and the Servicer's, as
applicable, reasonable cost and expense if a Series 2001-A Pay Out Event has
occurred (and otherwise at the expense of the Administrative Agent),
-28-
(i) to examine all books, records and documents (including computer tapes and
disks) in the possession or under the control of the Issuer, the Seller or the
Servicer, as the case may be, relating to the Receivables (other than names of
account holders and strategic plans for the Servicer's credit card business and
other than any portion of such books, records and documents relating to other
outstanding Series), including the forms of Credit Card Agreements under which
such Receivables arise, and (ii) to visit the offices and properties of the
Issuer, the Seller or the Servicer, as applicable, for the purpose of examining
such materials described in clause (i) above. Any information obtained by the
Administrative Agent pursuant to this Section 5.1(f) shall be held in confidence
by the Administrative Agent in accordance with the provisions of Section 6.2
hereof, except that the Administrative Agent may disclose such information to
any Class C Purchaser which shall hold such information in accordance with the
provisions of Section 6.2 hereof;
(g) Except for New Issuances in accordance with Section 2.12
of the Indenture and modifications to Supplemental Indentures with respect to
Series other than Series 2001-A and except for terminations, amendments, waiver
and modifications of Related Documents otherwise permitted hereunder, none of
the Seller, FCNB, the Servicer or the Issuer shall take any action which, under
the terms of the Related Documents, requires the satisfaction of the Rating
Agency Condition, if such action would materially adversely affect the Class C
Purchasers, unless such action has been consented to by the Required Class C
Owners;
(h) Neither the Seller nor the Issuer shall reduce or withdraw
any Discount Percentage if the Early Amortization Commencement Date has
occurred. Neither the Seller nor the Issuer shall reduce or withdraw any
Discount Percentage unless it shall have delivered to the Administrative Agent
an Officer's Certificate of the Servicer stating that the Servicer reasonably
believes that such reduction or withdrawal will not (i) result in the occurrence
of a Series 2001-A Pay Out Event or (ii) cause the Portfolio Yield to be less
than the Base Rate;
(i) Neither the Seller nor FCNB shall amend the Collateral
Certificate, the Pooling and Servicing Agreement, the Collateral Series
Supplement or any other Related Document in any respect which could have a
material adverse effect on the Class C Purchasers without the prior written
consent of by the Required Class C Owners;
(j) Any determination to be made by the Seller, FCNB, the
Servicer or the Issuer pursuant to any Related Document that a matter does not
adversely or materially adversely affect (within the meaning of such Related
Document) the interests of Noteholders shall not be made unless such matter does
not adversely or materially adversely affect the interests of the Class C
Purchasers;
(k) The Issuer shall not exercise its optional right to repay
all Class C Notes pursuant to Section 7.1 of the Supplemental Indenture, unless
the Class C Purchasers and the Administrative Agent have been paid, or will be
paid upon such purchase or in connection with such optional repayment, the Class
C Note Principal Balance, all interest thereon and all other amounts owing
hereunder in full;
(l) The Servicer shall furnish to the Administrative Agent,
promptly after the occurrence of any Series 2001-A Pay Out Event, a certificate
of an appropriate officer of the Servicer setting forth the circumstances of
such Series 2001-A Pay Out Event and any action
-29-
taken or proposed to be taken by the Servicer, the Seller, FCNB or the Issuer
with respect thereto;
(m) Each of the Seller, the Issuer and the Servicer, as
applicable, shall not terminate (except in accordance with the terms thereof and
only if at the time of such termination none of the Class C Note Principal
Balance or other amount payable to the Administrative Agent and the Class C
Purchasers hereunder is unpaid), amend, waive or otherwise modify any
Transaction Document to which it is a party in any manner which, under the terms
of the Transaction Documents, requires the satisfaction of the Rating Agency
Condition without the prior written consent of the Administrative Agent, unless
the Seller, the Issuer or the Servicer, as applicable, delivers to the
Administrative Agent an Officer's Certificate, in form and substance
satisfactory to the Administrative Agent, to the effect that such amendment,
waiver or modification does not adversely affect the interest of the Class C
Purchasers in any material respect. Each of the Seller, the Issuer and the
Servicer, as applicable, shall not terminate (except in accordance with the
terms thereof and only if at the time of such termination none of the Class C
Note Principal Balance or other amount payable to the Administrative Agent and
the Class C Purchasers hereunder is unpaid), amend, waive or otherwise modify
the Indenture Supplement without the prior written consent of the Administrative
Agent;
(n) There shall be no Series of Notes other than Series 2001-A
included in Group One without the prior written consent of the Required Class C
Owners if after giving effect to the issuance of such Series the weighted
average coupon on the outstanding securities issued by First Consumers Master
Trust and the Issuer exceeds 9.00%. There shall be no Series of Notes paired
with Series 2001-A without the prior written consent of the Required Class C
Owners; and
(o) The Servicer shall furnish to the Rating Agencies,
promptly after the occurrence of any Cap Increase Event, written notice thereof.
-30-
ARTICLE 6 MUTUAL COVENANTS REGARDING CONFIDENTIALITY
6.1 Covenants. Each of the Seller, FCNB, the Servicer and the
---------
Issuer, severally and with respect to itself only, covenants and agrees to hold
in confidence, and not disclose to any Person, the terms of any fees payable in
connection with this Agreement or the identity of any CP Conduit which is an
agent, a purchaser or beneficial owner of Class C Notes under this Agreement,
except as the Administrative Agent or Class C Purchaser, as the case may be, may
have consented to in writing prior to any proposed disclosure and except it may
disclose such information (i) to its officers, directors, employees, agents,
counsel, accountants, auditors, advisors or representatives or (ii) to the
extent it should be (A) required by law, rule or regulation or in connection
with any legal or regulatory proceeding or (B) requested by any Governmental
Authority to disclose such information; provided, that, in the case of clause
--------
(ii)(A), the Seller, FCNB, the Servicer or the Issuer, as applicable, will use
all reasonable efforts to maintain confidentiality and will (unless otherwise
prohibited by law) notify the affected Administrative Agent or Class C Purchaser
of its intention to make any such disclosure prior to making such disclosure. It
is expressly hereby acknowledged that nothing contained in this paragraph be
deemed to prohibit disclosure of the identity of the Administrative Agent under
this Agreement by the Seller, FCNB, the Servicer or the Issuer.
6.2 Covenants of Class C Purchasers. The Administrative Agent
-------------------------------
and each Class C Purchaser, severally and with respect to itself only, covenants
and agrees that any nonpublic information obtained by it pursuant to this
Agreement shall be held in confidence (it being understood that documents
provided to the Administrative Agent or any Class C Purchaser hereunder may in
all cases be distributed to the Administrative Agent or to any Class C
Purchaser) except that the Administrative Agent or Class C Purchaser may
disclose such information (i) to its officers, directors, employees, agents,
counsel, accountants, auditors, advisors or representatives, (ii) to the extent
such information has become available to the public other than as a result of a
disclosure by or through the Administrative Agent or Class C Purchaser, (iii) to
the extent such information was available to the Administrative Agent or such
Class C Purchaser on a nonconfidential basis prior to its disclosure to the
Administrative Agent or any Class C Purchaser hereunder, (iv) with the consent
of the affected party, (v) to the extent permitted by Section 8.1 of this
Agreement, (vi) in the case of any Class C Purchaser that is a CP Conduit, to
placement agents and providers of liquidity and credit support who agree to hold
such information in confidence or to rating agencies, or (vii) to the extent the
Administrative Agent or such Class C Purchaser should be (A) required by law,
rule or regulation or in connection with any legal or regulatory proceeding or
(B) requested by any Governmental Authority to disclose such information;
provided, that in the case of clause (vii)(A), the Administrative Agent or Class
--------
C Purchaser, as the case may be, will use all reasonable efforts to maintain
confidentiality and will (unless otherwise prohibited by law) notify the
affected party of its intention to make any such disclosure prior to making any
such disclosure.
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ARTICLE 7 THE ADMINISTRATIVE AGENT
7.1 Appointment. Each Class C Purchaser hereby irrevocably
-----------
designates and appoints the Administrative Agent as the agent of such Class C
Purchaser under this Agreement, and each such Class C Purchaser irrevocably
authorizes the Administrative Agent, as the agent for such Class C Purchaser, to
take such action on its behalf under the provisions of the Related Documents and
to exercise such powers and perform such duties thereunder as are expressly
delegated to the Administrative Agent by the terms of the Related Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Class C
Purchaser, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against any Administrative Agent.
7.2 Delegation of Duties. The Administrative Agent may execute
--------------------
any of its duties under any of the Related Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
7.3 Exculpatory Provisions. Neither the Administrative Agent
----------------------
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) liable to any of the Class C Purchasers for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with any of the other Related Documents (except for its or such
Person's own gross negligence or willful misconduct) or (b) responsible in any
manner to any of the Class C Purchasers for any recitals, statements,
representations or warranties made by the Seller, FCNB, the Servicer, the Issuer
or the Indenture Trustee or any officer thereof contained in any of the other
Related Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under or
in connection with, any of the other Related Documents or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any of the other Related Documents or for any failure of the
Seller, FCNB, the Servicer, the Issuer or the Indenture Trustee to perform its
obligations thereunder. No Administrative Agent shall be under any obligation to
any Class C Purchaser to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, any of the
other Related Documents, or to inspect the properties, books or records of the
Seller, FCNB, the Servicer, the Issuer or the Indenture Trustee.
7.4 Reliance by Agents. The Administrative Agent shall be
------------------
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, written statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to the Administrative Agent),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent shall be fully justified in failing or refusing to take
any action under any of the Related Documents unless it shall first receive such
advice or concurrence of the Required Class C Owners as it deems appropriate or
it shall first be indemnified to its satisfaction by the Class C Purchasers
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to
-32-
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under any of the Related
Documents in accordance with a request of the Required Class C Owners, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all present and future Class C Purchasers.
7.5 Notices. The Administrative Agent shall not be deemed to
-------
have knowledge or notice of the occurrence of any breach of this Agreement or
the occurrence of any Series 2001-A Pay Out Event unless the Administrative
Agent has received notice from the Seller, the Issuer, the Servicer, the
Indenture Trustee or any Class C Purchaser, referring to this Agreement and
describing such event. In the event that the Administrative Agent receives such
a notice, it shall promptly give notice thereof to the Class C Purchasers. The
Administrative Agent shall take such action with respect to such event as shall
be reasonably directed by the Required Class C Owners; provided that unless and
--------
until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such event as it shall deem
advisable in the best interests of the Class C Purchasers.
7.6 Non-Reliance on Agent and Other Class C Purchasers. Each
--------------------------------------------------
Class C Purchaser expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereafter taken, including any review of the affairs of
the Seller, FCNB, the Servicer, the Issuer or the Indenture Trustee shall be
deemed to constitute any representation or warranty by the Administrative Agent
to any Class C Purchaser. Each Class C Purchaser represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Class C Purchaser, and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Seller, FCNB, the Servicer, the Issuer,
First Consumers Master Trust, the Collateral Certificate, the Accounts, the
Receivables and the Indenture Trustee and made its own decision to purchase its
interest in the Class C Notes hereunder and enter into this Agreement. Each
Class C Purchaser also represents that it will, independently and without
reliance upon the Administrative Agent or any other Class C Purchaser, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own analysis, appraisals and decisions in taking or not
taking action under any of the Related Documents, and to make such investigation
as it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Seller, FCNB, the
Servicer, the Issuer, First Consumers Master Trust, the Collateral Certificate,
the Accounts, the Receivables and the Indenture Trustee. Except for notices,
reports and other documents received by the Administrative Agent under Section 5
hereof, the Administrative Agent shall have any duty or responsibility to
provide any Class C Purchaser with any credit or other information concerning
the business, operations, property, condition (financial or otherwise),
prospects or creditworthiness of the Seller, FCNB, the Servicer, the Issuer,
First Consumers Master Trust, the Collateral Certificate, the Accounts, the
Receivables or the Indenture Trustee which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
7.7 Indemnification. The Purchasers (other than the CP
---------------
Conduits) agree to indemnify the Administrative Agent in its capacity as
such (without limiting the obligation (if
-33-
any) of the Seller, FCNB, the Servicer or the Issuer to reimburse the
Administrative Agent for any such amounts), ratably according to their
respective Percentage Interests from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including at any time following the payment of the obligations under this
Agreement, including the Class C Note Principal Balance) be imposed on, incurred
by or asserted against the Administrative Agent in any way relating to or
arising out of this Agreement, or any documents contemplated by or referred to
herein or the transactions contemplated hereby or any action taken or omitted by
the Administrative Agent under or in connection with any of the foregoing;
provided that no Class C Purchaser shall be liable for the payment of any
--------
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of the Administrative Agent
resulting from its own gross negligence or willful misconduct. The agreements in
this subsection shall survive the payment of the obligations under this
Agreement, including the Class C Note Principal Balance.
7.8 Agent in its Individual Capacity. The Administrative Agent
--------------------------------
and its Affiliates may make loans to, accept deposits from and generally engage
in any kind of business with the Seller, FCNB, the Servicer or the Issuer as
though the Administrative Agent were not an agent hereunder. In addition, the
Class C Purchasers acknowledges that DBNY may act (i) as administrator, sponsor
or agent for one or more CP Conduits and in such capacity acts and may continue
to act on behalf of each such CP Conduit in connection with its business, and
(ii) as the agent for certain financial institutions under the liquidity and
credit enhancement agreements relating to this Agreement to which any one or
more CP Conduits is party and in various other capacities relating to the
business of any such CP Conduit under various agreements. DBNY, in its capacity
as Administrative Agent, shall not, by virtue of its acting in any such other
capacities, be deemed to have duties or responsibilities hereunder or be held to
a standard of care in connection with the performance of its duties as the
Administrative Agent other than as expressly provided in this Agreement. Any
Person which is the Administrative Agent may act as the Administrative Agent
without regard to and without additional duties or liabilities arising from its
role as such administrator or agent or arising from its acting in any such other
capacity.
7.9 Successor Agent. The Administrative Agent may resign as
---------------
Administrative Agent upon thirty days' notice to the Class C Purchasers, the
Indenture Trustee, the Issuer, the Seller and the Servicer with such resignation
becoming effective upon a successor agent succeeding to the rights, powers and
duties of the Administrative Agent pursuant to this Section 7.9. If the
Administrative Agent shall resign as Administrative Agent under this Agreement,
then the Required Class C Owners shall appoint from among the Class C Purchasers
a successor administrative agent. Any successor administrative agent shall
succeed to the rights, powers and duties of resigning Administrative Agent, and
the term "Administrative Agent" shall mean such successor administrative agent
or agent effective upon its appointment, and the former Administrative Agent's
rights, powers and duties as Administrative Agent shall be terminated, without
any other or further act or deed on the part of such former Administrative Agent
or any of the parties to this Agreement. After the retiring Administrative
Agent's resignation as Administrative Agent, the provisions of this Section 7
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement.
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ARTICLE 8 SECURITIES LAWS; TRANSFERS
8.1 Transfers of Class C Notes.
--------------------------
(a) Each initial Class C Purchaser shall execute and deliver
to the Issuer on the Closing Date an Investment Letter substantially in the form
attached hereto as Exhibit B (an "Investment Letter"). Each Class C Owner agrees
--------- -----------------
that the beneficial interest in the Class C Notes purchased by it will be
acquired for investment only and not with a view to any public distribution
thereof, and that such Class C Owner will not offer to sell or otherwise dispose
of any Class C Note acquired by it (or any interest therein) in violation of any
of the requirements of the Securities Act or any applicable state or other
securities laws. Each Class C Owner acknowledges that it has no right to require
the Issuer to register, under the Securities Act of 1933, as amended, or any
other securities law, the Class C Notes (or the beneficial interest therein)
acquired by it pursuant to this Agreement or any Transfer Supplement. Each Class
C Owner hereby confirms and agrees that in connection with any transfer or
syndication by it of an interest in the Class C Notes, such Class C Owner has
not engaged and will not engage in a general solicitation or general advertising
including advertisements, articles, notices or other communications published in
any newspaper, magazine or similar media or broadcast over radio or television,
or any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
(b) Each initial purchaser of a Class C Note or any interest
therein and any Assignee thereof or Participant therein shall certify to the
Issuer, the Seller, the Servicer, the Indenture Trustee and the Administrative
Agent that it is either (i) a citizen or resident of the United States, (ii) a
corporation or other entity organized in or under the laws of the United States
or any political subdivision thereof or (iii) a person not described in (i) or
(ii) who is entitled to receive payments under this Agreement and with respect
to the Class C Notes without deduction or withholding of any United States
federal income taxes and whose ownership of any interest in a Class C Note will
not result in any withholding obligation with respect to any payments with
respect to the Class C Notes by any Person (other than withholding, if any,
under Section 1446 of the Code) and who will furnish to the Issuer, the Seller,
the Servicer, the Indenture Trustee, the Administrative Agent and to the Class C
Owner making the Transfer the forms described in subsection 2.4(c).
(c) Any sale, transfer, assignment, participation, pledge,
hypothecation or other disposition (a "Transfer") of a Class C Note or any
--------
interest therein may be made only in accordance with this Section 8.1. Any
Transfer of an interest in a Class C Note shall be in respect of, at least
$5,000,000 in the aggregate. Any Transfer of an interest in a Class C Note
otherwise permitted by this Section 8.1 will be permitted only if it consists of
a pro rata percentage interest in all payments made with respect to the Class C
Purchaser's beneficial interest in such Class C Note. No Class C Note or any
interest therein may be Transferred by Assignment or Participation to any Person
(each, a "Transferee") unless the Transferee is a Permitted Transferee and prior
----------
to the transfer the Transferee shall have executed and delivered to the
Administrative Agent and the Issuer an Investment Letter.
Each of the Seller, FCNB, the Servicer and the Issuer
authorizes each Class C Purchaser to disclose to any Transferee and Support
Party and any prospective Transferee or Support Party any and all confidential
information in the Class C Purchaser's
-35-
possession concerning this Agreement or the Related Documents or concerning the
Accounts, the Receivables or such party which has been delivered to any Class C
Purchaser pursuant to this Agreement or the Related Documents (including
information obtained pursuant to rights of inspection granted hereunder) or
which has been delivered to such Class C Purchaser by or on behalf of the
Seller, FCNB, the Servicer or the Issuer in connection with such Class C
Purchaser's credit evaluation of First Consumers Master Trust, the Collateral
Certificate, the Accounts, the Receivables, the Seller, FCNB, the Servicer or
the Issuer prior to becoming a party to, or purchasing an interest in this
Agreement or the Class C Notes; provided that prior to any such disclosure, such
--------
Transferee or Support Party or prospective Transferee or Support Party shall
have entered into a confidentiality agreement substantially in the form of
Exhibit C hereto.
---------
(d) Each Class C Purchaser may, in accordance with applicable
law, at any time grant participations in all or part of its interest in the
Class C Notes, including the payments due to it under this Agreement and the
Related Documents (each, a "Participation"), to any Permitted Transferee (each,
-------------
a "Participant"); provided, however, that no Participation shall be granted to
----------- -------- -------
any Person unless and until the Administrative Agent shall have consented
thereto and the conditions to Transfer specified in this Agreement, including in
subsection 8.1(c) hereof, shall have been satisfied and that such Participation
consists of a pro rata percentage interest in all payments made with respect to
--- ----
such Class C Purchaser's beneficial interest (if any) in the Class C Notes. In
connection with any such Participation, the Administrative Agent shall maintain
a register of each Participant and the amount of each related Participation.
Each Class C Purchaser hereby acknowledges and agrees that (A) any such
Participation will not alter or affect such Class C Purchaser's direct
obligations hereunder, and (B) neither the Indenture Trustee, the Seller, the
Issuer nor the Servicer shall have any obligation to have any communication or
relationship with any Participant. Each Class C Purchaser and each Participant
shall comply with the provisions of subsection 2.4(c) of this Agreement. No
Participant shall be entitled to Transfer all or any portion of its
Participation, without the prior written consent of the Administrative Agent.
Each Participant shall be entitled to receive additional amounts and
indemnification pursuant to Sections 2.3, 2.4 and 2.5 hereof as if such
Participant were a Class C Purchaser and such Sections applied to its
Participation; provided, in the case of Section 2.4, that such Participant has
--------
complied with the provisions of subsection 2.4(c) hereof as if it were a Class C
Purchaser. Each Class C Purchaser shall give the Administrative Agent notice of
the consummation of any sale by it of a Participation.
(e) Each Class C Purchaser may, with the consent of the
Administrative Agent and in accordance with applicable law, sell or assign
(each, an "Assignment"), to any Permitted Transferee (each, an "Assignee") all
---------- --------
or any part of its interest in the Class C Notes and its rights and obligations
under this Agreement and the Related Documents pursuant to an agreement
substantially in the form attached hereto as Exhibit D hereto (a "Transfer
--------- --------
Supplement"), executed by such Assignee and the Class C Purchaser and delivered
----------
to the Administrative Agent for its acceptance and consent; provided, however,
-------- -------
that (i) no such assignment or sale shall be effective unless and until the
conditions to Transfer specified in this Agreement, including in subsection
8.1(c) hereof, shall have been satisfied, and (ii) in no event shall the consent
of the Administrative Agent be required in the case of an assignment by a CP
Conduit of its interest in the Class C Notes and its rights and obligations
under this Agreement and the Related Documents to any one or more of its Support
Parties. From and after the effective date determined pursuant to such Transfer
Supplement, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Transfer Supplement, have the rights
-36-
and obligations of a Class C Purchaser hereunder as set forth therein and (y)
the transferor Class C Purchaser shall, to the extent provided in such Transfer
Supplement, be released from its obligations under this Agreement; provided,
--------
however, that after giving effect to each such Assignment, the obligations
-------
released by any such Class C Purchaser shall have been assumed by an Assignee or
Assignees. Such Transfer Supplement shall be deemed to amend this Agreement to
the extent, and only to the extent, necessary to reflect the addition of such
Assignee and the resulting adjustment of Percentage Interests arising from the
Assignment. Upon its receipt and acceptance of a duly executed Transfer
Supplement, the Administrative Agent shall on the effective date determined
pursuant thereto give notice of such acceptance to the Seller, the Issuer, the
Servicer and the Indenture Trustee.
Upon instruction to register a transfer of a Class C Purchaser's
beneficial interest in the Class C Notes (or portion thereof) and surrender for
registration of transfer of such Class C Purchaser's Class C Note(s) (if
applicable) and delivery to the Issuer and the Indenture Trustee of an
Investment Letter, executed by the registered owner (and the beneficial owner if
it is a Person other than the registered owner), and receipt by the Indenture
Trustee of a copy of the duly executed related Transfer Supplement and such
other documents as may be required under this Agreement, such beneficial
interest in the Class C Notes (or portion thereof) shall be transferred in the
records of the Indenture Trustee and the Administrative Agent and, if requested
by the Assignee, new Class C Notes shall be issued to the Assignee and, if
applicable, the transferor Class C Purchaser in amounts reflecting such Transfer
as provided in the Indenture. To the extent of any conflict between the
provisions of this Section 8.1 and any provisions of Section 2.05 of the Master
Indenture applicable to Transfers of Class C Notes (or interests therein), the
provisions of this Section 8.1 shall control. Successive registrations of
Transfers as aforesaid may be made from time to time as desired, and each such
registration of a transfer to a new registered owner shall be noted on the Note
Register.
(f) Each Class C Purchaser may pledge its interest in the Class
C Notes to any Federal Reserve Bank as collateral in accordance with applicable
law.
(g) Any Class C Purchaser shall have the option to change its
Investing Office, provided that such Class C Purchaser shall have prior to such
--------
change in office complied with the provisions of subsection 2.4(c) hereof and
provided further that such Class C Purchaser shall not be entitled to any
-------- -------
amounts otherwise payable under Section 2.3 or 2.4 hereof resulting solely from
such change in office unless such change in office was mandated by applicable
law or by such Class C Purchaser's compliance with the provisions of this
Agreement.
(h) Each Affected Party shall be entitled to receive additional
payments and indemnification pursuant to Sections 2.3, 2.4 and 2.5 hereof as
though it were a Class C Purchaser and such Section applied to its interest in
or commitment to acquire an interest in the Class C Notes; provided that such
--------
Affected Party shall not be entitled to additional payments pursuant to (i)
Section 2.3 by reason of Regulatory Changes which occurred prior to the date it
became an Affected Party or (ii) Section 2.4 attributable to its failure to
satisfy the requirements of subsection 2.4(c) as if it were a Class C Purchaser,
and provided further, that unless such Affected Party has been consented to by
-------- -------
the Seller, such Affected Party shall be entitled to receive additional amounts
pursuant to Sections 2.3 or 2.4 only to the extent that its related CP Conduit
would have been entitled to receive such amounts in the absence of the
commitment and Support Advances from such Affected Party.
-37-
(i) Each Affected Party claiming increased amounts described
in Sections 2.3 or 2.4 hereof shall furnish, through its related CP Conduit, to
the Seller, the Issuer, the Servicer, the Indenture Trustee and the
Administrative Agent a certificate setting forth the basis and amount of each
request by such Affected Party for any such amounts referred to in Sections 2.3
or 2.4, such certificate to be conclusive with respect to the factual
information set forth therein absent manifest error.
8.2 Tax Characterization. It is the intention of the parties
--------------------
hereto that the Class C Notes be treated for tax purposes as indebtedness, and
the parties hereto agree to so treat the Class C Notes (to the extent permitted
by law).
ARTICLE 9 MISCELLANEOUS
9.1 Amendments and Waivers. This Agreement may not be amended,
----------------------
supplemented or modified nor may any provision hereof be waived except in
accordance with the provisions of this Section 9.1. With the written consent of
the Required Class C Owners, the Administrative Agent, the Issuer, the Seller
and the Servicer may, from time to time, enter into written amendments,
supplements, waivers or modifications hereto for the purpose of adding any
provisions to this Agreement or changing in any manner the rights of any party
hereto or waiving, on such terms and conditions as may be specified in such
instrument, any of the requirements of this Agreement; provided, however, that
-------- -------
no such amendment, supplement, waiver or modification shall (i) reduce the
amount or extend the maturity of any Class C Note or reduce the rate or extend
the time of payment of interest thereon, or reduce or alter the timing of any
other amount payable to any Class C Owner hereunder or under the Indenture, in
each case without the consent of the Class C Owner affected thereby, (ii) amend,
modify or waive any provision of this Section 9.1, or, if such amendment would
have a material adverse effect on the Class C Purchasers, the definition of
"Class C Note Principal Balance", or reduce the percentage specified in the
definition of Required Class C Owners, in each case without the written consent
of all Class C Owners or (iii) amend, modify or waive any provision of Section 7
of this Agreement without the written consent of the Administrative Agent. Any
waiver of any provision of this Agreement shall be limited to the provisions
specifically set forth therein for the period of time set forth therein and
shall not be construed to be a waiver of any other provision of this Agreement.
No such amendment, supplement, waiver or modification which would have a
material, adverse effect on the Class C Purchasers shall be effective unless the
Rating Agency Condition shall have been satisfied; it being understood that
amendments, supplements, waivers and modifications of the type set forth in
Section 10.1(a) of the Indenture shall not require satisfaction of the Rating
Agency Condition. The Servicer shall give the Rating Agencies prior notice of
any amendment, supplement, waiver or modification of this Agreement.
The Administrative Agent may cast any vote or give any consent
or direction under the Indenture or other Related Documentation on behalf of the
Class C Noteholders Group if it has been directed to do so by the Required Class
C Owners.
9.2 Notices.
-------
(a) All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or, in
-38-
the case of mail or telecopy notice, when received, addressed as follows or,
with respect to an Agent or Class C Purchaser, as set forth on the signature
pages hereto or in its respective Transfer Supplement, or to such other address
as may be hereafter notified by the respective parties hereto:
Issuer: First Consumers Credit Card Master Note Trust
c/o Bankers Trust Company, as Owner Trustee
Four Albany ▇▇▇▇▇▇--▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust and Agency Services
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with separate copies to FCNB.
Seller: First Consumers Credit Corporation
▇▇▇ ▇▇▇▇ ▇/▇▇/ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
with separate copies to FCNB.
FCNB, Servicer: First Consumers National Bank
▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a separate copy to:
Spiegel, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
-39-
Indenture Trustee: The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Administrative Deutsche Bank AG, New York Branch
Agent: ▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) All payments to be made to the Administrative Agent or any Class
C Purchaser hereunder shall be made in United States dollars and in immediately
available funds not later than 2:00 p.m., New York City time, on the date
payment is due, and, unless otherwise specifically provided herein, shall be
made to the Administrative Agent, for the account of one or more of the Class C
Purchasers or for its own account, as the case may be. Unless otherwise directed
by the Administrative Agent, all payments to it shall be made by federal wire to
the Administrative Agent, at its account (account number 104636460008; and
account name - TTI) maintained at DBNY (ABA #026-003-780), reference FCNB Credit
Card Master Note Trust Series 2001-A, with telephone notice (including federal
wire number) to the Structured Finance Department of the Administrative Agent
(212-469-4653), or such other account as the Administrative Agent may designate
in writing to the Issuer. Unless otherwise directed by an Agent or Class C
Purchaser, all payments to it shall be made by federal wire to the account
specified on the signature pages hereto or in the Transfer Supplement by which
it became a party hereto (provided, in the case of an account specified in a
Transfer Supplement, that the Administrative Agent, the Seller, the Issuer, the
Servicer or the Indenture Trustee, as the case may be, shall have received
notice thereof).
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of any party hereto, any right, remedy, power
or privilege under any of the Related Documents shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege under any of the Related Documents 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 in the Related Documents
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the Issuer, the Seller, the Servicer, the Administrative
Agent, the Class C Purchasers, any Transferee and their respective successors
and permitted assigns, and, to the extent provided herein, to each Indemnitee,
Participant and Support Party and their respective successors and assigns;
provided that, except as provided in Section 9.5, the Issuer, the Seller and the
--------
Servicer may not assign or transfer any of their respective rights or
obligations under this Agreement without the prior written consent of the
Required Class C Owners; provided, further, that (i) in connection with any such
-------- -------
assignment the assignee shall expressly agree in writing to
-40-
assume all the obligations of the Issuer, the Seller or the Servicer, as
applicable, hereunder and (ii) no such assignment made without the prior written
consent of the Required Class C Owners shall relieve the Issuer, the Seller or
the Servicer, as applicable, of any of its obligations hereunder and provided
--------
further that no assignment permitted hereunder shall relieve the Issuer, the
-------
Seller or the Servicer, as applicable, from any obligations arising hereunder
prior to such assignment (including obligations with respect to breaches of
representations and warranties made herein).
9.5 Successors to Servicer. In the event that a transfer of servicing
----------------------
occurs under Section 7.2 of the Transfer and Servicing Agreement, (i) from and
after the effective date of such transfer, the Successor Servicer shall be the
successor in all respects to the Servicer and shall be responsible for the
performance of all functions to be performed by the Servicer from and after such
date, except as provided in the Transfer and Servicing 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, and (ii) as of the date of such transfer, the Successor Servicer shall
be deemed to have made with respect to itself the representations and warranties
made in Section 4.2 hereof (in the case of subsection 4.2(a) with appropriate
factual changes); provided, however, that the references to the Servicer
-------- -------
contained in Section 5.1 of this Agreement shall be deemed to refer to the
Servicer with respect to responsibilities, duties and liabilities arising out of
an act or acts, or omission, or an event or events giving rise to such
responsibilities, duties and liabilities and occurring during such time that the
Servicer was Servicer under this Agreement and shall be deemed to refer to the
Successor Servicer with respect to responsibilities, duties and liabilities
arising out of an act or acts, or omission, or an event or events giving rise to
such responsibilities, duties and liabilities and occurring during such time
that the Successor Servicer acts as Servicer under this Agreement; provided,
--------
however, to the extent that an obligation to indemnify Indemnitees under Section
-------
2.5 hereof arises as a result of any act or failure to act of any Successor
Servicer in the performance of servicing obligations under the Transfer and
Servicing Agreement, such indemnification obligation shall be of the Successor
Servicer and not its predecessor.
9.6 Counterparts. This Agreement may be executed by one or more of
------------
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
9.7 Severability. Any provisions of this Agreement which are
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provisions in any other jurisdiction.
9.8 Integration. This Agreement, the Supplemental Spread Account
-----------
Letter and the Supplemental Fee Letter represent the agreement of the Seller,
the Issuer, FCNB (as Servicer), the Administrative Agent and the Class C
Purchasers with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by any party hereto relative to
subject matter hereof not expressly set forth or referred to herein or therein
or in the Related Documents.
-41-
9.9 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
-------------
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ITS CONFLICTS OF LAW PROVISIONS.
9.10 Jurisdiction; Consent to Service of Process. Each of the parties
-------------------------------------------
hereto hereby irrevocably and unconditionally (i) submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court in New
York County or federal court of the United States of America for the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment arising out of or relating to this Agreement; (ii)
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law,
federal court; (iii) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law; (iv) consents that
any such action or proceeding may be brought in such courts and waives any
objection it may now or hereafter have to the laying of venue of any such action
or proceeding in any such court and any objection it may now or hereafter have
that such action or proceeding was brought in an inconvenient court, and agrees
not to plead or claim the same; (v) consents to service of process in the manner
provided for notices in Section 9.2 of this Agreement (provided that, nothing in
-------- ----
this Indenture shall affect the right of any such party to serve process in any
other manner permitted by law); and (vi) waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any such action
or proceeding any special, exemplary, punitive or consequential damages.
9.11 Termination. This Agreement shall remain in full force and effect
-----------
until the earlier to occur of (a) payment in full of the Class C Note Principal
Balance and all other amounts payable to the Class C Purchasers and the
Administrative Agent hereunder and the termination of all Commitments and (b)
the Series 2001-A Final Maturity Date; provided, that the provisions of Sections
--------
2.3, 2.4, 2.5, 6.1, 6.2, 7.7, 8.2, 9.10, 9.12 and 9.14 shall survive termination
of this Agreement and any amounts payable to the Administrative Agent, Class C
Purchasers or any Affected Party thereunder shall remain payable thereto.
9.12 Limited Recourse; No Proceedings.
--------------------------------
(a) The obligations of the Seller, the Issuer and FCNB under this
Agreement or any other agreement, instrument, document or certificate executed
and delivered or issued by the Seller, the Issuer in connection herewith are
solely the corporate obligations of the Seller, the Issuer and FCNB. Except as
expressly provided for in the Trust Agreement, no recourse shall be had for the
payment of any fee or any other obligations or claim arising out of or based
upon this Agreement or any other agreement, instrument, document or certificate
executed and delivered or issued by the Seller, the Issuer or FCNB in connection
herewith against any holder of a Trust Certificate, employee, officer, director,
incorporator, agent or trustee of the Seller, the Issuer, FCNB or any Affiliate
of the Seller, the Issuer or FCNB.
(b) It is expressly understood and agreed by the parties hereto that
(i) this Agreement is executed and delivered by Bankers Trust Company, not
individually or personally but solely as the Owner Trustee of the Issuer under
the Trust Agreement, in the exercise of the powers and authority conferred and
vested in it, (ii) each of the representations, undertakings and
-42-
agreements herein made on the part of the Issuer is made and intended not as
personal representations, undertakings and agreements by Bankers Trust Company
but is made and intended for the purpose of binding only the Issuer, (iii)
nothing herein contained shall be construed as creating any liability on Bankers
Trust Company, individually or personally, to perform any covenant either
expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties hereto and by any Person claiming by, through or
under the such parties and (iv) under no circumstances shall Bankers Trust
Company be personally liable for the payment of any indebtedness or expenses of
the Issuer or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Issuer under this
Indenture or the other Transaction Documents.
(c) The Administrative Agent and each Class C Purchaser covenants and
agrees that it shall 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.
(d) Each of the Issuer, the Seller, the Servicer, the Administrative
Agent, and each Class C Purchaser hereby agrees that it shall not institute or
join against any CP Conduit any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding under any federal or
state bankruptcy or similar law, for one year and a day after the latest
maturing commercial paper note, medium term note or other debt security issued
by such CP Conduit is paid.
(e) Each of the Issuer, the Servicer, the Administrative Agent and
each Class C Purchaser covenants and agrees that it shall 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.
9.13 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement, the purchase of the Class C Notes hereunder and
the termination of this Agreement.
9.14 Waiver of Jury Trial. EACH OF THE ISSUER, THE SELLER, THE
--------------------
SERVICER, THE ADMINISTRATIVE AGENT, AND THE CLASS C PURCHASERS HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT, THE CLASS C NOTEHOLDERS' INTEREST OR ANY OTHER
DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF
THE ISSUER, THE SELLER, THE SERVICER, THE ADMINISTRATIVE AGENT, AND THE CLASS C
PURCHASERS. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING
INTO THIS AGREEMENT AND FOR CLASS C PURCHASERS PURCHASING AN INTEREST IN THE
CLASS C NOTEHOLDERS' INTEREST DESCRIBED HEREIN AND THE ADMINISTRATIVE AGENT
AGREEING TO ACT AS SUCH HEREUNDER.
-43-
9.15 Ongoing Obligations of FCNB All obligations of FCNB , as Seller,
---------------------------
made in the Existing Purchase Agreement with respect to any date prior to the
date of this Agreement, shall remain in full force and effect. On and after the
date of this Agreement, FCNB shall be relieved of all of its obligations as
Seller under the Existing Purchase Agreement, other than obligations arising
under the Existing Purchase Agreement prior to the date of this Agreement.
-44-
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Class C Note Purchase Agreement to be duly executed by their respective
officers as of the day and year first above written.
FIRST CONSUMERS CREDIT CARD MASTER NOTE
TRUST
By: Bankers Trust Company, not in its individual
capacity but solely as Owner Trustee under the
Trust Agreement dated as of March 1, 2001
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FIRST CONSUMERS NATIONAL BANK, as Servicer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
FIRST CONSUMERS CREDIT CORPORATION, as Seller
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
-45-
Address for Notices:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance
Department/Securitization
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
GEMINI SECURITIZATION CORP.
(formerly known as Twin Towers Inc.),
as Class C Purchaser
Commitment: $36,000,000 By:_______________________________________
Name:
Title:
Address for Notices and Investing Office:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Payment Instructions:
Deutsche Bank AG, New York Branch
Account number 104636460008
Account name - TTI
ABA #026-003-780)
Reference FCNB Master Note Business Trust Series
2001-A
Telephone notice (including federal wire number) to
the Structured Finance Department (212-469-4653)
-46-
EXHIBIT B
---------
FORM OF INVESTMENT LETTER
-------------------------
[Date]
First Consumers Credit Card Master Note Trust
c/o Bankers Trust Company, as Owner Trustee
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust and Agency Services
[Name and address of Administrative Agent]
Re First Consumers Credit Card Master Note Trust
Class C Series 2001-A Floating Rate Asset Backed Notes
------------------------------------------------------
Ladies and Gentlemen:
This letter (the "Investment Letter") is delivered by the
undersigned (the "Purchaser") pursuant to subsection 8.1(a) of the Amended and
Restated Class C Note Purchase Agreement dated as of December 31, 2001 (as in
effect, the "Note Purchase Agreement"), among First Consumers Credit Card Master
Note Trust, First Consumers Credit Corporation, First Consumers National Bank,
the Class C Purchasers parties thereto and Deutsche Bank AG, New York Branch, as
Administrative Agent. Capitalized terms used herein without definition shall
have the meanings set forth in the Note Purchase Agreement. The Purchaser
represents to and agrees with the Issuer as follows:
(a) The Purchaser is authorized [to enter into the Note
Purchase Agreement and to perform its obligations thereunder and to
consummate the transactions contemplated thereby] [to purchase a
participation in obligations under the Note Purchase Agreement].
(b) The Purchaser has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of its investment in the Class C Notes and is able to
bear the economic risk of such investment. The Purchaser has been
afforded the opportunity to ask such questions as it deems necessary to
make an investment decision, and has received all information it has
requested in connection with making such investment decision. The
Purchaser has, independently and without reliance upon the
Administrative Agent or any other Class C Purchaser, and based on such
documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Accounts, the
Receivables, First Consumers Master Trust, the Collateral Certificate,
the Issuer, the Seller, the Servicer, and the Indenture Trustee and
made its own decision to purchase its interest in the Class C Notes,
and will, independently and without reliance upon the Administrative
Agent or any other Class C
-1-
Purchaser, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis, appraisals
and decisions in taking or not taking action under the Note Purchase
Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and
other condition and creditworthiness of the Accounts, the Receivables,
First Consumers Master Trust, the Collateral Certificate, the Issuer,
the Seller, the Servicer and the Indenture Trustee.
(c) The Purchaser is an "accredited investor", as defined in
Rule 501, promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), or is a sophisticated institutional investor. The
Purchaser understands that the offering and sale of the Class C Notes
has not been and will not be registered under the Securities Act and
has not and will not be registered or qualified under any applicable
"Blue Sky" law, and that the offering and sale of the Class C Notes has
not been reviewed by, passed on or submitted to any federal or state
agency or commission, securities exchange or other regulatory body.
(d) The Purchaser is acquiring an interest in Class C Notes
without a view to any distribution, resale or other transfer thereof
except, with respect to any Class C Purchaser Interest or any interest
or participation therein, as contemplated in the following sentence.
The Purchaser will not resell or otherwise transfer any interest or
participation in the Class C Purchaser Interest, except in accordance
with Section 8.1 of the Note Purchase Agreement and (i) in a
transaction exempt from the registration requirements of the Securities
Act of 1933, as amended, and applicable state securities or "blue sky"
laws; (ii) to the Issuer or any affiliate of the Issuer; or (iii) to a
person who the Purchaser reasonably believes is a qualified
institutional buyer (within the meaning thereof in Rule 144A under the
Securities Act) that is aware that the resale or other transfer is
being made in reliance upon Rule 144A. In connection therewith, the
Purchaser hereby agrees that it will not resell or otherwise transfer
the Class C Notes or any interest therein unless the purchaser thereof
provides to the addressee hereof a letter substantially in the form
hereof.
(e) The Purchaser agrees (for the benefit of the
Administrative Agent, the Issuer, the Indenture Trustee, the Seller,
the servicer and the Class C Noteholders) to provide those forms
required to be provided by subsections 2.4(c) of the Note Purchase
Agreement at the time and in the manner described therein, and to
comply with all applicable U.S. laws and regulations with regard to the
related withholding tax exemptions. The Purchaser further certifies,
represents and warrants that unless the Seller has otherwise consented,
as of the date hereof, the Purchaser is entitled to receive payments
under the Note Purchase Agreement and with respect to the Class C Notes
without deduction of withholding of any United States federal income
taxes and it is entitled to an exemption from United States backup
withholding tax.
(f) This Investment Letter has been duly executed and
delivered and constitutes the legal, valid and binding obligation of
the Purchaser, enforceable against the Purchaser in accordance with its
terms, except as such enforceability may be limited
-2-
by bankruptcy, insolvency, reorganization, moratorium or similar laws
or equitable principles affecting the enforcement of creditors' rights
generally and general principles of equity.
Very truly yours,
[NAME OF PURCHASER]
By:_________________________
Name:
Title:
cc: First Consumers National Bank, as Administrator
-3-
EXHIBIT C
---------
FORM OF CONFIDENTIALITY AGREEMENT
[date]
[Name and address]
Attention:
Ladies and Gentlemen:
First Consumers National Bank (the "Company") will be providing
information to you in connection with a transaction (the "Transaction") to which
the Company will be a party; and in connection therewith you have requested that
the Company furnish or otherwise make available to you certain information
concerning the Company. As a condition to our furnishing such information to
you, we are requiring that you agree, as set forth below, to treat
confidentially such information and any other information that the Company, its
agents or its representatives (including attorneys and financial advisors)
furnishes to you or your partners, officers, directors, employees, attorneys,
accountants, agents, advisors, affiliates or representatives of your agents or
advisors (all of the foregoing collectively referred to as "your
Representatives"), whether furnished before or after the date of this Agreement,
and all notes, analyses, compilations, studies or other documents, whether
prepared by you or others, which contain, is derived from, or otherwise reflect
such information (all of such information collectively referred to as the
"Confidential Information").
The term "Confidential Information" does not include information which
(i) becomes generally available to the public other than as a result of a
disclosure by you or your Representatives, or (ii) was available to you on a
non-confidential basis prior to its disclosure to you by the Company, its
representatives or its agents, or (iii) becomes available to you on a
non-confidential basis from a source other than the Company, its representatives
or its agents, provided that such source is not bound by a confidentiality
agreement with the Company or otherwise prohibited from transmitting the
information to you or your Representatives by a contractual, legal or fiduciary
obligation, or (iv) has been independently developed by you without use of any
information furnished by the Company.
It is understood that you may disclose any of the Confidential
Information to those of your Representatives who require such material for the
purpose of evaluating, or providing advice to you with respect to the
Transaction and the defense, protection and enforcement of your rights and
remedies in the agreements related to the Transaction and otherwise as provided
by law (provided that such Representatives shall be informed by you of the
confidential nature of the Confidential Information). You agree that the
Confidential Information will be kept confidential by you and your
Representatives and, except with the specific prior written consent
-1-
of the Company or as expressly otherwise permitted by the terms hereof, will not
be disclosed by you or your Representatives, except to any person which has
executed a confidentiality agreement in form and substance similar to this
Agreement (and to the Representatives of such person). You further agree that
you and your Representatives will not use any of the Confidential Information
for any reason or purpose other than to evaluate the Transaction and to defend,
protect and enforce your rights and remedies thereunder.
The obligations of confidentiality and nondisclosure contained herein
shall not apply to the extent disclosure of the Confidential Information is
required by law or is requested by any regulatory authority or, solely with
respect to any Transaction documents, any rating agency; provided, however, in
any case in which the disclosure is so required or requested, you shall disclose
only that portion of the Confidential Information required or requested to be
disclosed. The term "person" as used in this Agreement shall be broadly
interpreted to include without limitation any corporation, company, partnership
and individual.
The obligations of confidentiality and nondisclosure contained herein
shall not apply in the event that you or any of your Representations are
requested or required (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar
process) to disclose any of the Confidential Information, provided it is agreed
that you or such Representative, as the case may be, will provide the Company
with notice of such request for disclosure as may be legally permissible and
reasonably practicable under the circumstances so that the Company may seek an
appropriate protective order or other appropriate remedy and/or waive your or
such Representative's compliance with the provisions of this Agreement. In the
event that such protective order or other remedy is not obtained, or that the
Company grants a waiver hereunder, you or such Representative may furnish that
portion (and only that portion) of the Confidential Information which you are
legally compelled to disclose or which has been waived; provided, however, you
may disclose any Confidential Information under circumstances where you
reasonably believe that the failure to disclose such information could have a
material adverse effect on your business or condition (financial or otherwise).
Although you understand that the Company has endeavored to include in
the Confidential Information known to it which it believes to be relevant for
the purpose of the Transaction, you further understand that neither the Company
nor its agents or its representatives makes any representation or warranty as to
the accuracy or completeness of the Confidential Information except such as is
made to you or your affiliates in definitive written documentation related to
the Transaction, subject to such limitations and restrictions as may be
specified therein. You agree that neither the Company nor its agents or its
representatives shall have any liability to you or any of your Representatives
resulting from the use of the Confidential Information by you or such
Representatives other than in connection with such documentation. The agreements
set forth in this Agreement may be modified or waived only by a separate writing
signed by the Company and you expressly so modifying or waiving such agreements.
You hereby agree to be responsible for any damage, loss, cost or
liability directly arising out of a breach by you or your Representatives of
this Agreement. You also acknowledge that money damages would be both
incalculable and an insufficient remedy for any breach of this Agreement by you
or your Representatives and that any such breach would cause the Company
irreparable harm. Accordingly, you also agree that in the event of any breach or
threatened
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breach of this Agreement, the Company, in addition to any other remedies at law
or in equity it may have, shall be entitled, without the requirement of posting
a bond or other security, to equitable relief, including injunctive relief and
specific performance.
It is understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege
hereunder.
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provisions of this
Agreement, which shall remain in full force and effect.
This Agreement and the rights and obligations of the parties set forth
herein shall be governed by the laws of the State of New York.
[Applicable to CP Conduit: The Company hereby agrees that it shall not
institute or join against any you any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding under any federal or
state bankruptcy or similar law, for one year and a day after the latest
maturing commercial paper note, medium term note or other debt security issued
by you is paid. The Company further agrees that any of your monetary obligations
arising under this letter are payable only to the extent you have excess funds
available for the payment thereof after repayment of your commercial paper
notes, liquidity loans and other senior debt, and otherwise shall not constitute
a "claim" (as defined in Section 101(5) of the Bankruptcy Code) against you. No
recourse shall be had for the payment of any amount owing hereunder or any other
obligation of, or claim against, you arising out of or based upon this letter,
against any of your stockholders, employees, officers, agents, directors or
incorporators or any affiliate thereof.]
If you are in agreement with the foregoing, please sign and return one
copy of this Agreement, which thereupon will constitute our agreement with
respect to the subject matter hereof.
Very truly yours,
FIRST CONSUMERS NATIONAL BANK
By: _________________________________________
Name:
Title:
-3-
Confirmed and agreed to as of
the date first above written:
[______________________________]
By: __________________
Name:
Title:
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EXHIBIT D
---------
FORM OF TRANSFER SUPPLEMENT
TRANSFER SUPPLEMENT, dated as of the date set forth in Item 1 of
Schedule I hereto, between the Seller Class C Purchaser set forth in Item 2 of
Schedule I hereto (the "Seller Class C Purchaser"), and the Purchasing Class C
------------------------
Purchaser set forth in Item 3 of Schedule I hereto (the "Purchasing Class C
------------------
Purchaser").
---------
W I T N E S S E T H:
WHEREAS, this Supplement is being executed and delivered in
accordance with subsection 8.1(e) of the Amended and Restated Class C Note
Purchase Agreement, dated as of December 31, 2001, among First Consumers Credit
Card Master Note Trust, First Consumers Credit Corporation, First Consumers
National Bank, the Class C Purchasers parties thereto and Deutsche Bank AG, New
York Branch, as Administrative Agent (as from time to time amended, supplemented
or otherwise modified in accordance with the terms thereof, the "Note Purchase
-------------
Agreement"; unless otherwise defined herein, terms defined in the Note Purchase
---------
Agreement are used herein as therein defined);
WHEREAS, the Purchasing Class C Purchaser (if it is not already a
Class C Purchaser party to the Note Purchase Agreement) wishes to become a Class
C Purchaser party to the Note Purchase Agreement and the Purchasing Class C
Purchaser wishes to acquire and assume from the Seller Class C Purchaser,
certain of the rights, obligations and commitments under the Note Purchase
Agreement; and
WHEREAS, the Seller Class C Purchaser wishes to sell and assign to
the Purchasing Class C Purchaser, certain of its rights and obligations under
the Note Purchase Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
(a) Upon receipt by the Administrative Agent of five counterparts
of this Supplement, to each of which is attached a fully completed Schedule I
and Schedule II, each of which has been executed by the Seller Class C
Purchaser, the Purchasing Class C Purchaser and the Administrative Agent, the
Administrative Agent will transmit to the Servicer, the Issuer, the Seller, the
Indenture Trustee, the Seller Class C Purchaser and the Purchasing Class C
Purchaser a Transfer Effective Notice, substantially in the form of Schedule III
to this Supplement (a "Transfer Effective Notice"). Such Transfer Effective
-------------------------
Notice shall be executed by the Administrative Agent and shall set forth, inter
-----
alia, the date on which the transfer effected by this Supplement shall become
----
effective (the "Transfer Effective Date"). From and after the Transfer Effective
-----------------------
Date the Purchasing Class C Purchaser shall be a Class C Purchaser party to the
Note Purchase Agreement for all purposes.
(b) At or before 12:00 Noon, local time of the Seller Class C
Purchaser, on the Transfer Effective Date, the Purchasing Class C Purchaser
shall pay to the Seller Class C
Purchaser, in immediately available funds, an amount equal to the purchase
price, as agreed between the Seller Class C Purchaser and such Purchasing Class
C Purchaser (the "Purchase Price"), of the portion set forth on Schedule II
--------------
hereto being purchased by such Purchasing Class C Purchaser of the outstanding
Class C Note Principal Balance under the Class C Note owned by the Seller Class
C Purchaser (such Purchasing Class C Purchaser's "Purchaser Percentage") and
--------------------
other amounts owing to the Seller Class C Purchaser under the Note Purchase
Agreement or otherwise in respect of the Class C Notes. Effective upon receipt
by the Seller Class C Purchaser of the Purchase Price from the Purchasing Class
C Purchaser, the Seller Class C Purchaser hereby irrevocably sells, assigns and
transfers to the Purchasing Class C Purchaser, without recourse, representation
or warranty, and the Purchasing Class C Purchaser hereby irrevocably purchases,
takes and assumes from the Seller Class C Purchaser, the Purchasing Class C
Purchaser's Purchaser Percentage of (i) the presently outstanding Class C Note
Principal Balance under the Class C Notes owned by the Seller Class C Purchaser
and other amounts owing to the Seller Class C Purchaser in respect of the Class
C Notes, together with all instruments, documents and collateral security
pertaining thereto, and (ii) the Purchasing Class C Purchaser's Purchaser
Percentage of the Purchaser Percentage of the Seller Class C Purchaser and the
other rights and duties of the Seller Class C Purchaser under the Note Purchase
Agreement. This Supplement is intended by the parties hereto to effect a
purchase by the Purchasing Class C Purchaser and sale by the Seller Class C
Purchaser of interests in the Class C Notes, and it is not to be construed as a
loan or a commitment to make a loan by the Purchasing Class C Purchaser to the
Seller Class C Purchaser. The Seller Class C Purchaser hereby confirms that the
amount of the Class C Note Principal Balance is $____________ and its Percentage
Interest thereof is ___%, which equals $______________ as of __________, 200_.
Upon and after the Transfer Effective Date (until further modified in accordance
with the Note Purchase Agreement), the Purchaser Percentage of the Seller Class
C Purchaser and the Purchasing Class C Purchaser shall be as set forth in
Schedule II to this Supplement.
(c) The Seller Class C Purchaser has made arrangements with the
Purchasing Class C Purchaser with respect to (i) the portion, if any, to be
paid, and the date or dates for payment, by the Seller Class C Purchaser to the
Purchasing Class C Purchaser of any fees heretofore received by the Seller Class
C Purchaser pursuant to the Note Purchase Agreement prior to the Transfer
Effective Date and (ii) the portion, if any, to be paid, and the date or dates
for payment, by the Purchasing Class C Purchaser to the Seller Class C Purchaser
of fees or interest received by the Purchasing Class C Purchaser pursuant to the
Note Purchase Agreement or otherwise in respect of the Class C Notes from and
after the Transfer Effective Date.
(d) (i) All principal payments that would otherwise be payable
from and after the Transfer Effective Date to or for the account of the Seller
Class C Purchaser in respect of the Class C Notes shall, instead, be payable to
or for the account of the Seller Class C Purchaser and the Purchasing Class C
Purchaser, as the case may be, in accordance with their respective interests as
reflected in this Supplement.
(ii) All interest, fees and other amounts that would otherwise
accrue for the account of the Seller Class C Purchaser from and after the
Transfer Effective Date pursuant to the Note Purchase Agreement or in respect of
the Class C Notes shall, instead, accrue for the account of, and be payable to
or for the account of, the Seller Class C Purchaser and the Purchasing Class C
Purchaser, as the case may be, in accordance with their respective interests
-2-
as reflected in this Supplement. In the event that any amount of interest, fees
or other amounts accruing prior to the Transfer Effective Date was included in
the Purchase Price paid by the Purchasing Class C Purchaser, the Seller Class C
Purchaser and the Purchasing Class C Purchaser will make appropriate
arrangements for payment by the Seller Class C Purchaser to the Purchasing Class
C Purchaser of such amount upon receipt thereof from the Administrative Agent.
(e) Concurrently with the execution and delivery hereof, the
Purchasing Class C Purchaser will deliver to the Administrative Agent and the
Issuer an executed Investment Letter in the form of Exhibit A to the Note
Purchase Agreement and the forms, if any, required by subsection 2.4(c) of the
Note Purchase Agreement.
(f) Each of the parties to this Supplement agrees and acknowledges
that (i) at any time and from time to time upon the written request of any other
party, it will execute and deliver such further documents and do such further
acts and things as such other party may reasonably request in order to effect
the purposes of this Supplement, and (ii) the Administrative Agent shall apply
each payment made to it under the Note Purchase Agreement, whether in its
individual capacity or as Administrative Agent, in accordance with the
provisions of the Note Purchase Agreement, as appropriate.
(g) By executing and delivering this Supplement, the Seller
Class C Purchaser and the Purchasing Class C Purchaser confirm to and agree with
each other, the Administrative Agent and the Class C Purchasers as follows: (i)
other than the representation and warranty that it is the legal and beneficial
owner of the interest being assigned hereby free and clear of any adverse claim,
the Seller Class C Purchaser makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Note Purchase Agreement or the Related
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Note Purchase Agreement or any other instrument or
document furnished pursuant thereto; (ii) the Seller Class C Purchaser makes no
representation or warranty and assumes no responsibility with respect to the
Trust, the financial condition of the Receivables, the Accounts, First Consumers
Master Trust, the Collateral Certificate, the Seller, the Issuer, FCNB or the
Indenture Trustee, or the performance or observance by the Seller, the Issuer,
FCNB or the Indenture Trustee of any of their respective obligations under the
Note Purchase Agreement or any Related Document or any other instrument or
document furnished pursuant hereto; (iii) each Purchasing Class C Purchaser
confirms that it has received a copy of such documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Supplement; (iv) each Purchasing Class C Purchaser will, independently and
without reliance upon the Administrative Agent, the Seller Class C Purchaser or
any other Class C Purchaser and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Note Purchase Agreement or the Related
Documents; (v) the Purchasing Class C Purchaser appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Note Purchase Agreement and the Related Documents as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, all in accordance with Section 7 of
the Note Purchase Agreement; and (vi) each Purchasing Class C Purchaser agrees
(for the benefit of the Seller Class C Purchaser, the Administrative Agent, the
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Class C Purchasers, the Indenture Trustee, the Servicer, the Seller and the
Issuer) that it will perform in accordance with their terms all of the
obligations which by the terms of the Note Purchase Agreement are required to be
performed by it as a Class C Purchaser.
(h) Schedule II hereto sets forth the revised Purchaser Percentage
of the Seller Class C Purchaser and the Purchaser Percentage of the Purchasing
Class C Purchaser, as applicable, and the initial Investing Office of the
Purchasing Class C Purchaser, as well as administrative information with respect
to the Purchasing Class C Purchaser.
(i) THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement
to be executed by their respective duly authorized officers on Schedule I hereto
as of the date set forth in Item 1 of Schedule I hereto.
-4-
SCHEDULE I TO
TRANSFER SUPPLEMENT
-------------------
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Re: Amended and Restated Class C Note Purchase Agreement, dated as of
December 31, 2001, among First Consumers Credit Card Master Note
Trust, First Consumers Credit Corporation, First Consumers National
Bank, the Class C Purchasers parties thereto and Deutsche Bank AG,
New York Branch, as Administrative Agent
Item 1: Date of Transfer Supplement:
Item 2: Seller Class C Purchaser:
Item 3: Purchasing Class C Purchaser:
Item 4: Signatures of Parties to Agreement:
______________________________________
as Seller Class C Purchaser
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
as Purchasing Class C Purchaser
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
CONSENTED TO AND ACCEPTED BY:
[If applicable:]
-▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇ BRANCH, as Administrative Agent
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
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SCHEDULE II TO
TRANSFER SUPPLEMENT
-------------------
LIST OF INVESTING OFFICES, ADDRESSES
FOR NOTICES, ASSIGNED INTERESTS AND
PURCHASE AND COMMITMENT PERCENTAGES
-----------------------------------
[Seller Class C Purchaser]
A. Type of Purchaser: CP Conduit: Yes/No
B. Purchaser Percentage:
Seller Class C Purchaser Purchaser Percentage
Prior to Sale: _____%
Purchaser Percentage Sold: _____%
Purchaser Percentage Retained: _____%
C. Class C Note Principal Balance:
------------------------------
Seller Class C Purchaser
Class C Note Principal Balance Prior to Sale: $________
Class C Note Principal Balance Sold: $________
Class C Note Principal Balance Retained: $________
[Purchasing Class C Purchaser]
----------------------------
A. Type of Purchaser: CP Conduit: Yes/No
B. Purchaser Percentage:
--------------------
Transferee Class C Purchaser Purchaser Percentage
After Sale: _____%
C. Class C Note Principal Balance:
Transferee Class C Purchaser
Class C Note Principal Balance After Sale: $________
Address for Notices:
-------------------
Investing Office:
----------------
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SCHEDULE III TO
TRANSFER SUPPLEMENT
-------------------
Form of
Transfer Effective Notice
-------------------------
To: [Name and address of Issuer, Seller,
Servicer, Indenture Trustee, Administrative
Agent, Seller Class C Purchaser and
Purchasing Class C Purchaser]
The undersigned, as Administrative Agent under the Amended and
Restated Class C Note Purchase Agreement, dated as of December 31, 2001, among
First Consumers Credit Card Master Note Trust, First Consumers Credit
Corporation, First Consumers National Bank, the Class C Purchasers and Deutsche
Bank AG, New York Branch, as Administrative Agent, acknowledges receipt of five
executed counterparts of a completed Transfer Supplement. [Note: attach copies
of Schedules I and II from such Agreement.] Terms defined in such Supplement are
used herein as therein defined.
Pursuant to such Supplement, you are advised that the Transfer
Effective Date will be _____________, ____.
Very truly yours,
[NAME OF AGENT], as Administrative Agent
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
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