Exhibit 10.32
RECEIVABLES PURCHASE AGREEMENT
among
SPIEGEL CREDIT CORPORATION III,
Buyer,
and
FIRST CONSUMERS NATIONAL BANK
and
SPIEGEL ACCEPTANCE CORPORATION,
RPA Sellers,
Dated as of October 17, 2001
Table of Contents
Page
ARTICLE I DEFINITIONS....................................................1
Section 1.1 Definitions...............................................1
Section 1.2 Other Definitional Provisions.............................1
ARTICLE II PURCHASE AND CONVEYANCE OF RECEIVABLES.........................2
Section 2.1 Purchase..................................................2
Section 2.2 Addition of Additional Accounts...........................3
Section 2.3 Sellers of Receivables....................................4
ARTICLE III CONSIDERATION AND PAYMENT......................................4
Section 3.1 Purchase Price............................................4
Section 3.2 Payment of Purchase Price.................................4
Section 3.3 Adjustments to Purchase Price.............................5
Section 3.4 Settlement................................................5
ARTICLE IV REPRESENTATIONS AND WARRANTIES.................................5
Section 4.1 RPA Seller's Representations and Warranties...............5
Section 4.2 RPA Sellers' Representations and Warranties Regarding
Additional Accounts.......................................8
Section 4.3 Representations and Warranties of Buyer...................9
Section 4.4 Other Matters............................................10
ARTICLE V COVENANTS OF RPA SELLERS AND BUYER............................10
Section 5.1 RPA Seller Covenants.....................................10
Section 5.2 Buyer Covenants Regarding Nondisclosure; Inspection......13
ARTICLE VI REPURCHASE OBLIGATION.........................................14
Section 6.1 Mandatory Repurchase.....................................14
Section 6.2 Optional Repurchases.....................................15
Section 6.3 Conveyance of Repurchased Receivables....................16
Section 6.4 Sole Remedy..............................................16
Section 6.5 Selection of Removed Accounts............................16
Section 6.6 Assignment of Repurchase Rights and Obligations..........16
ARTICLE VII CONDITIONS PRECEDENT..........................................17
Section 7.1 Conditions to Buyer's Obligations Regarding Initial
Receivables..............................................17
Section 7.2 Conditions to Buyer's Obligations Regarding Supplemental
Conveyances..............................................17
Section 7.3 Conditions Precedent to RPA Sellers' Obligations.........18
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Table of Contents
(continued)
Page
ARTICLE VIII TERM & TERMINATION............................................19
Section 8.1 Term.....................................................19
Section 8.2 Effect of Termination....................................19
ARTICLE IX MISCELLANEOUS PROVISIONS......................................20
Section 9.1 Amendment................................................20
Section 9.2 Governing Law............................................20
Section 9.3 Notices..................................................20
Section 9.4 Severability of Provisions...............................20
Section 9.5 Assignment...............................................20
Section 9.6 Acknowledgment and Agreement of RPA Sellers..............21
Section 9.7 Further Assurances.......................................21
Section 9.8 No Waiver; Cumulative Remedies...........................21
Section 9.9 Counterparts.............................................21
Section 9.10 Binding Effect; Third-Party Beneficiaries................21
Section 9.11 Merger and Integration...................................21
Section 9.12 Headings.................................................22
Section 9.13 Schedules and Exhibits...................................22
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RECEIVABLES PURCHASE AGREEMENT, dated as of October 17, 2001, (this
"Agreement") among FIRST CONSUMERS NATIONAL BANK, a national banking association
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("FCNB"), SPIEGEL ACCEPTANCE CORPORATION, a Delaware corporation ("SAC"; FCNB
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and SAC are collectively referred to herein as the "RPA Sellers"), and SPIEGEL
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CREDIT CORPORATION III, a Delaware corporation ("Buyer").
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W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Buyer desires to purchase from time to time certain Receivables
arising under certain specified preferred charge accounts of FCNB; and
WHEREAS, RPA Sellers desire to sell from time to time and assign such
Receivables to Buyer upon the terms and conditions hereinafter set forth; and
WHEREAS, it is contemplated that the Receivables purchased hereunder will
be transferred by Buyer to the Issuer in connection with the issuance of certain
Notes; and
WHEREAS, Buyer will grant to the Indenture Trustee a security interest in
Buyer's rights relating to the Receivables under this Agreement, and RPA Sellers
agree that the covenants and agreements made by RPA Sellers herein shall also be
for the benefit of the Owner Trustee, the Indenture Trustee and all holders of
the Notes;
NOW, THEREFORE, it is hereby agreed among the parties hereto as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms used herein and not otherwise
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defined herein are defined in Annex A to the Master Indenture, dated as of
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December 1, 2000, between Spiegel Credit Card Master Note Trust and The Bank of
New York (the "Indenture").
---------
Section 1.2 Other Definitional Provisions. All terms defined directly or by
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reference in this Agreement shall have the defined meanings when used in any
certificate or other document delivered pursuant hereto unless otherwise defined
therein. For purposes of this Agreement and all such certificates and other
documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in this
Agreement to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles; (b) terms defined in
Article 9 of the UCC as in effect in the State of Illinois and not otherwise
defined in this Agreement are used as defined in that Article; (c) any reference
to each Rating Agency shall only apply to any specific rating agency if such
rating agency is then rating any outstanding Series; (d) references to any
amount as on deposit or outstanding on any particular date means such amount at
the close of business on such day; (e) the words "hereof," "herein" and
"hereunder" and words of similar import refer to this Agreement (or the
certificate or other document in which they are used) as a whole and not to any
particular provision of this Agreement (or such certificate or document); (f)
references to any Section, Schedule or Exhibit are references to Sections,
Schedules and Exhibits in or to this Agreement (or the certificate or other
document in which the reference is made), and
references to any paragraph, Section, clause or other subdivision within any
Section or definition refer to such paragraph, subsection, clause or other
subdivision of such Section or definition; (g) the term "including" means
"including without limitation"; (h) references to any law or regulation refer to
that law or regulation as amended from time to time and include any successor
law or regulation; (i) references to any Person include that Person's successors
and assigns; and (j) headings are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.1 Purchase. (a) Subject to and upon the terms and conditions
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hereinafter set forth, each RPA Seller (i) hereby sells, transfers, conveys, and
assigns to Buyer, without recourse, all of such RPA Seller's right, title, and
interest in, to, and under the Receivables existing at the opening of business
on the SMT Termination Date (excluding Receivables in respect of Defaulted
Accounts), and thereafter created in respect of each Account listed on
Schedule 1 identified by account number and by Receivable balance as of the SMT
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Termination Date (the "Accounts"), together with all monies due or to become due
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with respect thereto (including all Finance Charge Receivables), all
Collections, Recoveries and other proceeds thereof and Insurance Proceeds
relating thereto, and (ii) subject to the provisions of Section 2.2, on each
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Addition Date each RPA Seller shall sell, transfer, convey and assign to Buyer,
without recourse, all of such RPA Seller's rights, titles, and interests in, to,
and under the Receivables then existing or thereafter created in respect of each
Additional Account designated in a Supplemental Conveyance effective on the
Addition Date therefor, together with all monies due or to become due with
respect thereto (including all Finance Charge Receivables), all Collections,
Recoveries and other proceeds thereof and Insurance Proceeds relating thereto.
(b) In connection with such sale and conveyance, each RPA Seller shall, at
its own expense, on or prior to the SMT Termination Date (i) indicate or cause
to be indicated in its computer files relating to the Receivables that
Receivables created in connection with the Accounts have been sold to Buyer in
accordance with this Agreement and transferred to the Issuer pursuant to the
Transfer and Servicing Agreement for the benefit of the Noteholders and (ii)
deliver or cause to be delivered to Buyer (or to the Owner Trustee, if Buyer so
directs) a computer file or microfiche list containing a true and complete list
of all such Accounts, identified by account number and by the Receivables
balance as of the SMT Termination Date.
(c) In connection with such sale and conveyance, each RPA Seller agrees (i)
to record and file, at its own expense, any financing statement for the purchase
of accounts (as defined in Section 9-102 of the UCC as in effect in any state
where such RPA Seller's chief executive offices or books and records relating to
the Receivables are located) with respect to the Receivables now existing and
hereafter created in respect of each Account (including Receivables in
Additional Accounts), meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect the sale of the
Receivables from such RPA Seller to Buyer, and (ii) to deliver a file-stamped
copy of such financing statements or other evidence of such filings (which may,
for purposes of this Section 2.1, consist of telephone
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confirmations of such filings) to Buyer (or to the Owner Trustee, if Buyer so
directs) on or prior to the SMT Termination Date.
(d) On the SMT Termination Date, RPA Sellers shall deposit in the
Collection Account an amount equal to the amount that Buyer is required to
deposit therein pursuant to Section 8.4 of the Indenture.
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(e) If the arrangements with respect to the Receivables hereunder shall
constitute a loan and not a purchase and sale of such Receivables, it is the
intention of the parties hereto that this Agreement shall constitute a security
agreement under applicable law, and that each RPA Seller shall be deemed to have
granted to Buyer a first priority perfected security interest in all of such RPA
Seller's right, title, and interest, whether owned on the SMT Termination Date
or thereafter acquired, in, to and under the Receivables conveyed by such RPA
Seller, and all money, accounts, general intangibles, chattel paper,
instruments, documents, goods, investment property, deposit accounts,
certificates of deposit, letters of credit, and advices of credit consisting of,
arising from or related to the Receivables, to secure its obligations hereunder.
Section 2.2 Addition of Additional Accounts. (a) If from time to time,
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Buyer becomes obligated to designate Additional Accounts pursuant to Section
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2.6(a) of the Transfer and Servicing Agreement (or any other provision thereof
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calling for compliance with the procedures set forth in such Section 2.6(a)),
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then Buyer shall give RPA Sellers written notice thereof on or before the Notice
Date prior to the Addition Date therefor and RPA Sellers shall on or before the
Addition Date designate sufficient Eligible Accounts to be included as
Additional Accounts so that after the inclusion thereof Buyer will be in
compliance with the requirements of said Section 2.6(a). Additionally, subject
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to the limitations, if any, on Buyer's ability to add Additional Accounts under
Section 2.6(b) of the Transfer and Servicing Agreement, from time to time
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Eligible Accounts may be designated to be included as Additional Accounts, upon
the mutual agreement of Buyer and RPA Sellers. In either event, RPA Sellers
shall have responsibility for selecting the Additional Accounts and shall on or
prior to the Addition Date therefore execute and deliver a Supplemental
Conveyance identifying the Additional Accounts by account number and Receivables
balance and Principal Receivables balance as of the Addition Date, which
Supplemental Conveyance shall be effective upon receipt by Buyer.
(b) On or before each Addition Date with respect to Additional Accounts
added pursuant to Section 2.2(a), FCNB (i) shall indicate or cause to be
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indicated in its books and records and in the computer files of the Receivables
that the Receivables created in connection with such Additional Accounts have
been sold to Buyer in accordance with this Agreement and transferred by Buyer to
the Issuer pursuant to the Transfer and Servicing Agreement, and (ii) shall
deliver or cause to be delivered to Buyer a computer file or microfiche list
containing a true and complete list of all Additional Accounts designated in the
respective Supplemental Conveyance or, if Buyer shall so direct, such computer
file or microfiche list shall be delivered to the Owner Trustee pursuant to the
Transfer and Servicing Agreement. FCNB's failure to deliver or cause to be
delivered the list prior to termination shall not be deemed to render such
transfer executory or uncompleted.
(c) At any time that Receivables in an Eligible Account are required to be
transferred to the Issuer pursuant to Section 2.6(e) of the Transfer and
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Servicing Agreement, such Eligible
3
Account shall, until notice from FCNB or Buyer to the other parties hereto to
the contrary, automatically be designated to be included as an Account effective
as of the date specified in Section 2.6(e) of the Transfer and Servicing
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Agreement. FCNB shall on or before five Business Days after the first day of
each calendar month next succeeding the Monthly Period of such conveyance
execute a Supplemental Conveyance solely for the purposes of confirming the
transfer and assignment of such included Accounts under this Section 2.2(c) and
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identifying all such included Accounts so designated during the preceding
Monthly Period, by account number and the aggregate amount of the Receivables
and the aggregate amount of Principal Receivables in such included Accounts as
of such fifth Business Day.
(d) On or before five Business Days after the first day of the Monthly
Period next succeeding the calendar month in which Accounts were included
pursuant to Section 2.2(c), FCNB (i) shall indicate or cause to be indicated in
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its books and records and in the computer files of the Receivables that the
Receivables created in connection with such included Accounts have been sold to
Buyer in accordance with this Agreement and transferred by Buyer to the Issuer
pursuant to the Transfer and Servicing Agreement and (ii) shall deliver or cause
to be delivered to Buyer a computer file or microfiche list containing a true
and complete list of all such included Accounts identified in the respective
Supplemental Conveyance, or, if Buyer shall so direct, such computer file or
microfiche list shall be delivered to the Owner Trustee pursuant to the Transfer
and Servicing Agreement.
Section 2.3 Sellers of Receivables. The parties acknowledge and agree that
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Eligible Receivables arising under Additional Accounts prior to the applicable
Addition Date may on each Addition Date be transferred to Buyer hereunder by
either RPA Seller, as the RPA Sellers may agree between themselves without the
necessity of any consent or approval of any other Person, but that in any event
Eligible Receivables arising under Additional Accounts on or after the
applicable Addition Date and which are to be transferred to Buyer hereunder
shall be so transferred by FCNB.
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1 Purchase Price. Except as provided in Section 3.2, the Purchase
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Price for all Receivables (including Receivables in Additional Accounts)
conveyed to the Buyer under this Agreement shall be a dollar amount equal to the
total recorded unpaid balance of such Receivables (including Principal
Receivables and Finance Charge Receivables) on the date conveyed to Buyer
hereunder.
Section 3.2 Payment of Purchase Price. The Purchase Price for Receivables
-------------------------
shall be paid or provided for on the SMT Termination Date, each Addition Date
and each Settlement Date, as the case may be, in either of the following ways
(or any combination thereof) as Buyer and the appropriate RPA Seller may
mutually agree from time to time: (i) by payment in cash in immediately
available funds; or (ii) by the sale, transfer, and assignment from Buyer to the
appropriate RPA Seller of an undivided participation in the Seller Interest,
entitling such seller to receive a portion of all payments made to the holder of
the Seller Interest in the proportion that the principal amount of the purchased
Receivables not paid for in cash as provided in clause (i)
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4
above bears to the Principal Receivables evidenced by the Seller Interest. In
the absence of any agreement to the contrary, any portion of the Purchase Price
not paid in cash on the SMT Termination Date, any Addition Date (other than
Addition Dates arising under Section 2.2), or Settlement Date shall
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automatically be deemed the purchase of a participation in the Seller Interest
in accordance with the terms of this Section 3.2 in an amount equal to the
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unpaid portion of the Purchase Price payable on such date, which participation
interest shall be evidenced by the Settlement Statement as provided in
Section 3.4.
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Section 3.3 Adjustments to Purchase Price. The Purchase Price payable to
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each RPA Seller shall be adjusted on a monthly basis to reflect any Credit
Adjustment.
Section 3.4 Settlement. On each Determination Date under the Transfer and
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Servicing Agreement (herein, a "Settlement Date"), FCNB shall deliver or cause
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to be delivered to Buyer a Settlement Statement in substantially the form of
Exhibit C, showing the aggregate amount of Receivables conveyed by each RPA
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Seller from the previous Settlement Date (or from the SMT Termination Date in
the case of the first Settlement Date) to such date, the amount of all payments
of the Purchase Price received by each RPA Seller prior to such Settlement Date
in respect of such Receivables, any Credit Adjustments to be made pursuant to
Section 3.4, and the settlements of the remaining Purchase Price for such
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Receivables to be made as of such Settlement Date between Buyer and each RPA
Seller in accordance with Section 3.3. The balance due, if any, from Buyer to an
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RPA Seller as reflected in immediately available funds, or, unless otherwise
agreed, shall automatically be deemed an assignment of an interest in the Seller
Interest in accordance with Section 3.3 in an amount equal to the unpaid portion
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of the Purchase Price then due and payable, which participation shall be
evidenced by the Settlement Statement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 RPA Seller's Representations and Warranties. Each RPA Seller,
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but only as to itself and as to those Receivables, if any, transferred by it
hereunder, hereby severally (and not jointly) represents and warrants to, and
agrees with, Buyer as of the SMT Termination Date that:
(a) Organization, Good Standing, and Qualification. SAC is a corporation
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duly organized and validly existing in good standing under the laws of the State
of Delaware, and has full corporate power, authority, and right to own its
properties and to 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. FCNB is a national banking association
duly organized and validly existing and in good standing under the laws of the
United States of America, and has full corporate power, authority, and right to
own its properties and to 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. Such RPA Seller is duly qualified
to do business and is in good standing in each State of the United States where
the nature of its business requires it to be so qualified.
5
(b) Due Authorization. The execution and delivery of this Agreement, any
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Supplemental Conveyance, the Transfer and Servicing Agreement, or any other
document or instrument delivered pursuant hereto or thereto (the "Conveyance
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Papers"), to the extent that such RPA Seller is party thereto, and the
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consummation of the transactions provided for in this Agreement or any such
other Conveyance Paper, have been duly authorized by all necessary corporate
action on the part of such RPA Seller.
(c) No Conflict. The execution and delivery of the Conveyance Papers, the
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performance of the transactions contemplated by the Conveyance Papers, and the
fulfillment of the terms of the Conveyance Papers will not conflict with, result
in any breach of any of the material terms and provisions of, or constitute
(with or without notice or lapse of time or both) a material default under, any
Indenture, contract, agreement, mortgage, deed of trust, or other instrument to
which such RPA Seller is a party or by which it or any of its properties are
bound.
(d) No Violation. The execution and delivery of the Conveyance Papers, the
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performance of the transactions contemplated by the Conveyance Papers, and the
fulfillment of the terms of the Conveyance Papers will not conflict with or
violate any material Requirements of Law applicable to such RPA Seller.
(e) No Proceedings. There are no proceedings or investigations pending or,
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to the best knowledge of such RPA Seller, threatened against such RPA Seller,
before any Governmental Authority (i) asserting the invalidity of the Conveyance
Papers, (ii) seeking to prevent the consummation of any of the transactions
contemplated by the Conveyance Papers, (iii) seeking any determination or ruling
that, in the reasonable judgment of such RPA Seller, would materially and
adversely affect the performance by such RPA Seller of its obligations under the
Conveyance Papers, or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of the Conveyance
Papers.
(f) All Consents Required. All approvals, licenses, authorizations,
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consents, orders, or other actions of any Person or of any Governmental
Authority required in connection with the execution and delivery of the
Conveyance Papers by such RPA Seller, the performance by such RPA Seller of the
transactions contemplated by the Conveyance Papers, and the fulfillment by such
RPA Seller of the terms of the Conveyance Papers, have been obtained.
(g) Identification of Accounts and Receivables. As of the SMT Termination
------------------------------------------
Date, FCNB or SAC, as appropriate, has (i) indicated or caused to be indicated
in its books and records and in the computer files of the Receivables that
Receivables created in respect of the Accounts have been sold to Buyer in
accordance with this Agreement and transferred to the Issuer pursuant to the
Transfer and Servicing Agreement for the benefit of Noteholders and (ii) has
delivered or caused to be delivered to Buyer (or to the Owner Trustee, if so
directed by Buyer) a computer file or microfiche list containing a true and
complete list of all such Accounts, identified by account number and by the
Receivable balance as of the SMT Termination Date.
(h) Existing Financing Statements. There is no financing statement or
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similar statement or instrument of registration naming such RPA Seller as
"debtor", "transferor" or similar party (other than those, if any, which have
been released or terminated or the scope of which has otherwise been effectively
limited) under the law of any jurisdiction now on file or
6
registered in any public office covering any interest of any kind in the
Accounts or Receivables, or intended so to be, and such RPA Seller will not
execute or authorize there to be on file in any public office any financing
statement or similar statement or instrument of registration under the laws of
any jurisdiction relating to the Accounts or Receivables, except (i) any
financing statements or assignments to be filed in respect of and covering any
security or other interest of Buyer or the Indenture Trustee pursuant to this
Agreement or the Transfer and Servicing Agreement, and (ii) any financing
statements filed against FCNB with respect to its regular transfers of
receivables to SAC.
(i) Filings. All filings and recordings required to perfect the title of
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Buyer to the Receivables purchased hereunder have been or will have been
accomplished by the SMT Termination Date and each Addition Date and are in full
force and effect, and such RPA Seller shall at its expense perform all acts and
execute all documents reasonably requested by Buyer at any time to evidence,
perfect, maintain, and enforce the title of Buyer in such Receivables and the
transfer thereof to the Issuer. Such RPA Seller will, at the reasonable request
of Borrower, execute and file additional financing statements reasonably
satisfactory in form and substance to Buyer. All filings and recordings required
to perfect the title of SAC the Receivables to be transferred by it to Buyer
pursuant to Sections 2.3(a)(i) and 2.3(b) have been accomplished and are in full
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force and effect.
(j) Binding Obligations. The Conveyance Papers to which such RPA Seller is
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party constitute legal, valid and binding obligations of such RPA Seller,
enforceable against such RPA Seller in accordance with their terms, except as
such enforceability may be limited by Debtor Relief Laws and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(k) Valid Conveyance. As of the SMT Termination Date, the Conveyance Papers
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then in existence constitute a valid sale, assignment, and conveyance to Buyer
of all right, title and interest of such seller in, to, and under the
Receivables then existing and thereafter created in the Accounts (other than
Receivables in the Additional Accounts), all monies due or to become due with
respect thereto (including all Finance Charge Receivables), together with all
Collections, Recoveries and other proceeds of such Receivables and Insurance
Proceeds relating thereto, and such property will be owned free and clear of any
Lien of any Person claiming through or under such RPA Seller and its Affiliates,
except for Liens permitted under Section 5.1(d).
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(l) Eligibility of Receivables. Such RPA Seller hereby represents and
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warrants to Buyer as of the SMT Termination Date that (i) as of the SMT
Termination Date, Schedule 1 to this Agreement and the computer file or
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microfiche list delivered pursuant to Section 2.1(b) is an accurate and complete
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listing in all material respects of all the Accounts as of the SMT Termination
Date and the information contained therein with respect to the identity of such
Accounts and the Receivables existing thereunder is true and correct in all
material respects as of the SMT Termination Date, (ii) each Receivable then
existing is an Eligible Receivable, (iii) each Receivable then existing has been
conveyed to Buyer free and clear of any Lien of any Person and in compliance, in
all material respects, with all Requirements of Law applicable to such RPA
Seller and (iv) with respect to each Receivable then existing, all consents,
licenses, approvals, or authorizations of or registrations or declarations with
any Governmental Approval
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required to be obtained, effected or given by such RPA Seller in connection with
the transfer of such Receivable to Buyer have been duly obtained, effected, or
given and are in full force and effect. On each day on which any new Receivable
is conveyed by such RPA Seller to Buyer hereunder, such RPA Seller shall be
deemed to represent and warrant to Buyer that (i) each Receivable conveyed on
such day is an Eligible Receivable, (ii) each Receivable conveyed on such day
has been conveyed to Buyer free and clear of any Lien of any Person and in
compliance, in all material respects, with all Requirements of Law applicable to
such RPA Seller, (iii) with respect to each such Receivable, all consents,
licenses, approvals or authorizations of or registrations or declarations with,
any Governmental Authority required to be obtained, effected, or given by such
RPA Seller in connection with the conveyance of such Receivable to the Issuer
have been duly obtained, effected or given and are in full force and effect, and
(iv) the representations and warranties set forth in Sections 4.1(j) and (k) are
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true and correct with respect to each Receivable transferred on such day as if
made on such day.
(m) Security Interest Receivables. The representations, warranties and
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covenants contained in Schedule 3 to this Agreement are true and correct as of
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the date hereof.
(n) Eligible Accounts. As of the SMT Termination Date, each Account (other
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than Additional Accounts) is an Eligible Account.
(o) Selection Procedures. No selection procedures believed by such RPA
--------------------
Seller to be materially adverse to the interests of Buyer or its successors and
assigns were utilized by such RPA Seller in selecting the Accounts.
(p) FDIC Insurance. FCNB's deposits are insured by the Federal Deposit
--------------
Insurance Corporation ("FDIC").
----
Section 4.2 RPA Sellers' Representations and Warranties Regarding
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Additional Accounts. Each RPA Seller, but only as to itself and as to those
-------------------
Receivables, if any, transferred by it hereunder, hereby severally (and not
jointly) represents and warrants, and agrees with Buyer, as of each Addition
Date, that:
(a) Reconfirmation of Representations and Warranties. All representations
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and warranties made by such RPA Seller pursuant to Section 4.1 remain true and
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correct in all respects as of such Addition Date as if made on such date.
(b) Identification of Accounts and Receivables. FCNB has, as of the
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Addition Date with respect to Additional Accounts added pursuant Section 2.2(a),
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and will have, as of the fifth Business Day after the first day of the calendar
month occurring after any Addition Date occurring under Section 2.2(c), (i)
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indicated or caused to be indicated in its books and records and in the computer
files of the Receivables that Receivables created in respect of the Additional
Accounts have been sold to Buyer in accordance with this Agreement and
transferred to the Issuer pursuant to the Transfer and Servicing Agreement for
the benefit of the Noteholders and (ii) delivered or caused to be delivered to
Buyer (or to the Owner Trustee, if so directed by Buyer) a computer file or
microfiche list containing a true and correct list of all such Additional
Accounts, identified by account number and by the Receivable balance as of the
Addition Date for Additional Accounts added pursuant to Section 2.2(a) and as of
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such fifth Business Day of a
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calendar month with respect to Additional Accounts added pursuant to Section
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2.2(b) and any such computer file or microfiche list is or will be an accurate
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and complete listing in all material respects of all the Additional Accounts as
of the Addition Date or as of such fifth Business Day and the information
contained therein with respect to the identity of such Additional Accounts and
the Receivables existing thereunder is true and correct in all material respects
as of such date.
(c) Eligibility of Accounts. Each Additional Account is, as of the Addition
-----------------------
Date, an Eligible Account.
(d) Selection Procedures. The Additional Accounts were assigned randomly to
--------------------
Cycles by FCNB. No selection procedures believed by such RPA Seller to be
materially adverse to the interests of Buyer or its successors and assigns were
utilized by such RPA Seller in selecting the Additional Accounts from available
Eligible Accounts.
(e) Insolvency. Such RPA Seller is not insolvent as of the Addition Date.
----------
(f) Bankruptcy Proceeding. Such RPA Seller has not filed a voluntary
---------------------
proceeding under the Debtor Relief Laws and has no knowledge of the filing of
any involuntary proceeding against it under such laws.
(g) Valid Conveyance. As of each Addition Date, a valid sale, assignment
----------------
and conveyance to Buyer of all right, title, and interest of such RPA Seller in,
to, and under the Receivables then existing and thereafter created in respect of
the Additional Accounts, all monies due or to become due with respect thereto
(including all Finance Charge Receivables), together with all proceeds of such
Receivables and Insurance Proceeds relating thereto, has been consummated and
such property will be held free and clear of any Lien of any Person claiming
through or under such RPA Seller and its Affiliates, except for Liens permitted
under Section 5.1(d).
--------------
Section 4.3 Representations and Warranties of Buyer. As of the SMT
---------------------------------------
Termination Date, and each Addition Date, Buyer hereby represents and warrants
to, and agrees with, the RPA Sellers that:
(a) Organization and Good Standing. Buyer is a corporation duly organized
------------------------------
and validly existing in good standing under the laws of the State of Delaware
and has full corporate power, authority, and right to own its properties and to
conduct its business as such properties are presently owned and such business is
presently conducted, and to execute, deliver, and perform its obligations under
the Conveyance Papers.
(b) Due Qualification. Buyer is neither required to qualify, nor to
-----------------
register, as a foreign corporation in any state in order to conduct its
business, and has obtained all necessary licenses and approvals with respect to
Buyer required under federal and Delaware law.
(c) Due Authorization. The execution and delivery of the Conveyance Papers
-----------------
and the consummation of the transactions provided for in the Conveyance Papers
have been duly authorized by Buyer by all necessary corporate action on the part
of Buyer.
9
(d) No Conflict. The execution and delivery of the Conveyance Papers, the
-----------
performance of the transactions contemplated by the Conveyance Papers and the
fulfillment of the terms of the Conveyance Papers will not conflict with, result
in any breach of any of the material terms and provisions of, or constitute
(with or without notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust, or other instrument to
which Buyer is a party or by which it or any of its properties are bound.
(e) No Violation. The execution and delivery of the Conveyance Papers, the
------------
performance of the transactions contemplated by the Conveyance Papers, and the
fulfillment of the terms of the Conveyance Papers will not conflict with or
violate any Requirements of Law applicable to Buyer.
(f) No Proceedings. There are no proceedings or investigations pending or,
--------------
to the best knowledge of Buyer, threatened against Buyer, before any
Governmental Authority (i) asserting the invalidity of the Conveyance Papers,
(ii) seeking to prevent the consummation of any of the transactions contemplated
by the Conveyance Papers, (iii) seeking any determination or ruling that, in the
reasonable judgment of Buyer, would materially and adversely affect the Papers,
or (iv) seeking any determination or ruling that would materially and adversely
affect the validity or enforceability of the Conveyance Papers.
(g) All Consents Required. All approvals, authorizations, licenses,
---------------------
consents, orders, or other actions of any Person or of any Governmental
Authority required in connection with the execution and delivery of the
Conveyance Papers, the performance of the transactions contemplated by the
Conveyance Papers, and the fulfillment of the terms of the Conveyance Papers
have been obtained.
Section 4.4 Other Matters.
-------------
(a) The representations and warranties set forth in this Article IV shall
----------
survive the conveyance of the Receivables to Buyer, and termination of the
rights and obligations of the Buyer and RPA Sellers under this Agreement. Upon
discovery by Buyer or an RPA Seller of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others.
(b) In no event shall Buyer be liable to either RPA Seller on account of
breach of any representation or warranty of Buyer set forth herein.
ARTICLE V
COVENANTS OF RPA SELLERS AND BUYER
Section 5.1 RPA Seller Covenants. Each RPA Seller, but only as to itself
--------------------
and as to those Receivables, if any, transferred by it hereunder, hereby
severally (and not jointly) covenants and agrees with Buyer as follows:
(a) Charge Account Agreements and Charge Account Guidelines. FCNB shall
-------------------------------------------------------
comply with and perform its obligations under the Charge Account Guidelines,
except insofar as
10
any failure to so comply or conform would not materially and adversely affect
the rights of the Indenture Trustee and Noteholders under the Transfer and
Servicing Agreement or under the Notes. In that regard, except as aforesaid, and
so long as such changes are made applicable to comparable segments of the charge
accounts originated by FCNB which have characteristics the same as, or
substantially similar to, the Accounts pursuant to which the Receivables were
created, FCNB shall be free to change the terms and provisions of such Charge
Account Agreements or the Charge Account Guidelines in any respect (including
the calculation of the amount, the timing, or charge-offs), and shall notify the
Rating Agencies for changes that lower minimum payment terms, lower Finance
Charge rates, change terms from fixed- to floating-rate, and any changes to
delinquency and charge-off policies.
(b) Finance Charges and Other Fees. Except (i) as otherwise required by any
------------------------------
Requirements of Law or (ii) as is consistent with the provisions of the Transfer
and Servicing Agreement and all Supplements thereto and as is deemed by FCNB to
be advisable for the charge account program based on a good faith assessment by
FCNB of the various factors impacting the use of FCNB charge accounts, FCNB
shall not reduce at any time (x) the Finance Charges assessed in respect of any
Accounts or (y) any other fees charged on any of the Accounts, if as a result of
any such reduction, FCNB's reasonable expectation of the Portfolio Yield as of
such date would be less than the highest of the Base Rates for the Notes then
outstanding.
(c) Receivables Not to be Evidenced by Promissory Notes. FCNB will take no
---------------------------------------------------
action to cause any Receivable to be evidenced by any instrument.
(d) Security Interests. Except for the conveyances hereunder, (i) such RPA
------------------
Seller will not sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist any Lien on any Receivable, whether now
existing or hereafter created, or any interest therein; (ii) such RPA Seller
will immediately notify Buyer and the Indenture Trustee of the existence of any
Lien on any Receivable; and (iii) such RPA Seller shall defend the right, title,
and interest of Buyer and its successors and assigns in, to, and under the
Receivables, whether now existing or hereafter created, against all claims of
third parties claiming through or under such RPA Seller; provided, however, that
-------- -------
nothing in this Section 5.1(d) shall prevent or be deemed to prohibit such RPA
--------------
Seller from suffering to exist upon any of the Accounts or Receivables any Liens
for municipal or other local taxes if such taxes shall not at the time be due
and payable or if such RPA Seller shall concurrently be contesting the validity
thereof in good faith by appropriate proceedings and shall have set aside on its
books adequate reserves with respect thereto.
(e) Chief Executive Office; State of Organization. Each RPA Seller's chief
---------------------------------------------
executive office and state of organization is identified on Schedule 2. Neither
----------
RPA Seller will relocate its chief executive office or state of organization,
unless such RPA Seller shall have given to Buyer not less than 15 days' written
notice of its intention to do so, clearly describing the new location or state
of organization. If as a result of such relocation, the applicable provisions of
the UCC or any other applicable law require the filing of any amendment to any
previously-filed financing or continuation statement or the filing of a new
financing statement, the appropriate RPA Seller shall file such financing
statement or amendment as may be necessary with respect to the transfer of
accounts (as defined in Section 9-102 of the UCC in effect in the State of
Illinois).
11
Additionally, FCNB shall clearly and unambiguously identify or cause to be
identified each Account (including any Additional Account designated pursuant to
Section 2.2) in its computer records relating to the Receivables, to reflect
-----------
that the Receivables arising in such Account have been sold to Buyer and
transferred by Buyer to the Issuer pursuant to the Transfer and Servicing
Agreement. Such RPA Seller shall, prior to the sale or transfer to a third party
of any receivable owned by such RPA Seller or held in its custody, examine its
books and records, including any computer records, to determine that such
receivable is not a Receivable.
(f) Change of Name or Corporate Structure. Within 30 days after such RPA
-------------------------------------
Seller makes any change in its name, identity, or corporate structure which
would make any financing statement or continuation statement filed in accordance
with Section 2.1 above seriously misleading within the meaning of Section 9-508
-----------
of the UCC as in effect in the state where such financing statement or
continuation statement was filed, such RPA Seller shall file such financing
statements or amendments as may be necessary with respect to the transfer of
Accounts.
(g) Further Assurances. Such RPA Seller will make, execute or endorse,
------------------
acknowledge, and file or deliver to Buyer from time to time such schedules,
confirmatory assignments, conveyances, transfer endorsements, powers of
attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Receivables and other rights covered by this
Agreement, as Buyer may request and reasonably require.
(h) Indemnification. Such RPA Seller agrees to indemnify, defend and hold
---------------
Buyer harmless from and against any and all loss, liability, damage, judgment,
claim, deficiency, or expense (including interest, penalties, reasonable
attorneys' fees and amounts paid in settlement) to which Buyer may become
subject insofar as such loss, liability, damage, judgment, claim, deficiency, or
expense arises out of or is based upon (i) a breach by such RPA Seller of its
warranties and covenants contained in Section 4.1 (provided, however, with
----------- -------- -------
respect to the representations and warranties contained in Sections 4.1(1) and
---------------
(m) above the indemnification provided for herein shall apply only to a breach
---
involving a material amount of Accounts or Receivables) or (ii) the
representations of such RPA Seller contained in Section 4.2, or any information
-----------
certified in any Schedule delivered by such RPA Seller hereunder, being untrue
in any material respect at any time. The obligations of the RPA Sellers under
this Section 5.1(h) shall be considered to have been relied upon by Buyer and
--------------
shall survive the execution, delivery, and performance of this Agreement
regardless of any investigation made by Buyer or on its behalf.
(i) Municipal and Local Taxes. FCNB or the Servicer shall be responsible
-------------------------
for collecting all state, local, and municipal taxes associated with the
Accounts and Receivables and for remitting the same to the appropriate
Governmental Authority, together with all tax returns, reports, or affidavits
required by such Governmental Authority in connection therewith.
(j) Conveyance of Accounts. Such RPA Seller shall not convey, assign,
----------------------
exchange, or otherwise transfer the Accounts to any Person prior to termination
of this Agreement, and the Transfer and Servicing Agreement.
12
(k) Non-Petition. Each RPA Seller hereby covenants and agrees that prior to
------------
the date which is one year and one day after the Scheduled Trust Termination
Date, it will not institute against, or join any other person in instituting
against, Buyer any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any federal or state bankruptcy or similar law;
provided, however, that, while the Notes are outstanding, the agreement of the
-------- -------
RPA Sellers set forth in this sentence will terminate and be of no force and
effect if the absence of such agreement would not in and of itself result in the
lowering, suspension or withdrawal by Standard and Poor's, if such rating agency
then rates the Notes, or by Moody's, if such rating agency then rates the Notes,
of their respective ratings of the Notes. Nothing in this Section 5.1(1) shall
--------------
preclude, or be deemed to estop, either RPA Seller (a) from taking or omitting
to take any action prior to such date (i) in any case or proceeding voluntarily
filed or commenced by or on behalf of Buyer under or pursuant to any such law or
(ii) except for joining in the involuntary petition, in any involuntary case or
proceeding pertaining to Buyer which is filed or commenced by or on behalf of a
Person other than an RPA Seller (or any Person to which an RPA Seller shall have
assigned, transferred or otherwise conveyed any part of its obligations
hereunder) under or pursuant to any such law or (b) from commencing or
prosecuting any legal action which is not an involuntary case or proceeding
under or pursuant to any such law against Buyer or any of its properties.
(l) Merger; Consolidation. FCNB shall not consolidate with or merge into
---------------------
any other Person or convey or transfer its properties and assets substantially
as an entirety to any Person, unless:
(i) the Person formed by such consolidation or into which FCNB is
merged or the Person which acquires by conveyance or transfer the
properties and assets of FCNB substantially as an entirety shall be, if
FCNB is not the surviving entity, organized and existing under the laws of
the United States of America or any State or the District of Columbia, and
shall be a national banking association, federal savings association, state
banking corporation or state savings association which is not subject to
the bankruptcy laws of the United States of America and shall expressly
assume, by an agreement supplemental hereto, executed and delivered to the
Buyer, in form satisfactory to the Buyer, the performance of every covenant
and obligation of FCNB, as applicable hereunder, and shall benefit from all
the rights granted to FCNB, as applicable hereunder. To the extent that any
right, covenant or obligation of FCNB, as applicable hereunder, is
inapplicable to the successor entity, such successor entity shall be
subject to such covenant or obligation, or benefit from such right, as
would apply to the extent practicable, to such successor entity;
(ii) FCNB shall have delivered to the Buyer an Officer's Certificate
and an Opinion of Counsel, each, in form and substance reasonably
acceptable to the Buyer, stating that such consolidation, merger,
conveyance or transfer and such supplemental agreement comply with this
Agreement and that all conditions precedent herein provided for relating to
such transaction have been complied with and, in the case of the Opinion of
Counsel, that such supplemental agreement is legal, valid and binding with
respect to FCNB; and
13
(iii) FCNB shall have notified the Rating Agencies of such actions in
writing.
Section 5.2 Buyer Covenants Regarding Nondisclosure; Inspection. Buyer
---------------------------------------------------
hereby covenants and agrees with the RPA Sellers (and agrees to cause the Owner
Trustee) not to disclose to any Person any of the account numbers or other
information contained in the computer files or microfiche lists delivered to
Buyer (or to Owner Trustee if buyer so directs) pursuant to Sections 2.1 and
------------
2.2, and Section 4.2(b), 7.1(c) and 7.2(c), except (i) as is required in
--- -------------- ------ ------
connection with the performance of the Owner Trustee's duties under the Transfer
and Servicing Agreement or in enforcing the rights of the Noteholders and (ii)
such disclosures as are required upon appointment of a successor Servicer under
the Transfer and Servicing Agreement. Buyer agrees (and shall cause the Owner
Trustee) to take such measures as shall be reasonably requested by either RPA
Seller to protect and maintain the security and confidentiality of such
information, and in connection therewith, shall allow the RPA Sellers to inspect
the applicable security and confidentiality arrangements from time to time in
normal business hours. Buyer shall (and shall cause the Owner Trustee to) give
the RPA Sellers five days prior written notice of any disclosure pursuant to
this Section 5.2.
-----------
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.1 Mandatory Repurchase.
--------------------
(a) Ineligible Receivables. Each RPA Seller agrees that all representations
----------------------
and warranties made by it with respect to any Account or Receivable pursuant to
Section 4.1 and 4.2 of the Amended and Restated Receivables Purchase Agreement
----------- ---
dated as of December 13, 1994 shall be deemed for all purposes to have been made
pursuant to this Agreement as of the day when each was made or deemed made, as
if this Agreement had been in effect on that day. Except as hereinafter
provided, in the event of a breach by an RPA Seller of any representation and
warranty of such RPA Seller set forth in Section 4.1(1), within 60 days (or with
--------------
the prior written consent of Buyer, such longer period specified in such
consent) of the earlier to occur of the discovery of such breach by such RPA
Seller, or receipt by such RPA Seller of written notice of such breach given by
Buyer, such RPA Seller shall repurchase and Buyer shall convey, without
recourse, representation, or warranty, all of Buyer's right, title, and interest
in each Principal Receivable to which such breach relates (an "Ineligible
----------
Receivable") on the terms and conditions set forth below; provided, however,
---------- -------- -------
that no such repurchase shall be required to be made with respect to such
Ineligible Receivable if, on any day within such 60-day period (or such longer
period as may be specified in the consent), either (i) the representations and
warranties of such RPA Seller in the second sentence of Section 4.1(1) with
--------------
respect to such Ineligible Receivable shall then be true and correct in all
material respects with respect to such Ineligible Receivable as if such
Ineligible Receivable had been conveyed to Buyer on such day, or (ii) the
aggregate amount of Ineligible Receivables outstanding at any time and with
respect to which such representations and warranties continue to be incorrect in
any material respect does not in the sole reasonable judgment of an officer of
Buyer have a material adverse effect on the interest of the Issuer in the
Receivables as a whole, including the ability of the Servicer in its sole
reasonable judgment to collect the Receivables. Notwithstanding anything
contained in this
14
Section 6.1(a) to the contrary, in the event of breach of any representation and
--------------
warranty of an RPA Seller set forth in Section 4.1(1) with respect to (x) each
--------------
Receivable existing as of the SMT Termination Date or an Addition Date, as
applicable, and (y) each new Receivable acquired by Buyer hereunder, having been
conveyed to Buyer free and clear of any Lien of any Person claiming through or
under such RPA Seller and its Affiliates and in compliance in all material
respects with all Requirements of Law applicable to such RPA Seller, immediately
upon the earlier to occur of the discovery of such breach by such RPA Seller, or
receipt by such RPA Seller of written notice of such breach given by Buyer, such
RPA Seller shall repurchase and Buyer shall convey, without recourse,
representation or warranty, all of Buyer's right, title and interest in each
Ineligible Receivable affected by such breach.
(b) Breach. In the event of a breach of the representations and warranties
------
of an RPA Seller set forth in Sections 4.1(j) and (k), Buyer may give such RPA
--------------- ---
Seller written notice directing such RPA Seller to repurchase all of the
Principal Receivables transferred by such RPA Seller hereunder within 45 days
after such notice (or within such longer period as may be specified in such
notice); whereupon, such RPA Seller shall repurchase and Buyer shall convey to
such RPA Seller, without recourse, representation, or warranty, all of Buyer's
right, title and interest in all of the Principal Receivables transferred by
such RPA Seller, on a Settlement Date first occurring after such applicable
period on the terms and conditions set forth below; provided, however, that no
-------- -------
such repurchase by an RPA Seller shall be required to be made if, at any time
during such applicable period the representations and warranties of such RPA
Seller contained in Sections 4.1(j) and (k) shall then be true and correct in
--------------- ---
all material respects.
(c) Repurchase Price. The Repurchase Price for the Principal Receivables
----------------
shall be an amount equal to: (i) for Ineligible Receivables repurchased pursuant
to Section 6.1(a), the aggregate face amount of each such Ineligible Receivable
--------------
on the date of repurchase, and (ii) for Principal Receivables repurchased
pursuant to Section 6.1(b), an amount equal to the "deposit amount" paid
--------------
pursuant to Section 2.4(e) of the Transfer and Servicing Agreement. Payment of
--------------
the Repurchase Price may be made, at the option of the repurchasing RPA Seller:
(i) in immediately available funds; (ii) as a reduction in such RPA Seller's
interest in and to any participation interest in the Seller Interest in an
amount equal to the unpaid portion of the Repurchase Price; or (iii) any
combination of the foregoing; provided, however, that such RPA Seller must make
-------- -------
payment of a sufficient portion of the Repurchase Price in immediately available
funds to enable Buyer to make any cash payment to the Issuer then required under
the Transfer and Servicing Agreement.
Section 6.2 Optional Repurchases. (a) Buyer shall have the option to
--------------------
require either RPA Seller to repurchase all of Buyer's rights, titles, and
interests in, to, and under all Receivables transferred by such RPA Seller
hereunder and created pursuant to certain Accounts designated by Buyer (the
"Removed Accounts"); provided that, Buyer shall only be entitled to require such
---------------- -------- ----
repurchase (i) if Buyer is able to effect a retransfer of such Receivables from
the Issuer in compliance with Section 2.7 of the Transfer and Servicing
-----------
Agreement, (ii) if Buyer and both RPA Sellers mutually agree as to the
designation of the Removed Accounts, and (iii) the repurchasing RPA Seller shall
deliver an Opinion of Counsel reasonably acceptable to Buyer and the Indenture
Trustee that such repurchase would not constitute a fraudulent conveyance by
such RPA Seller. On or before the fifth Business Day (the "Repurchase Notice
-----------------
Date") prior to the date on which the Removed Accounts will be designated by
----
Buyer, Buyer shall give the repurchasing
15
RPA Seller or RPA Sellers (as the case may be) written notice of its election to
require such RPA Seller or RPA Sellers to so repurchase the Receivables of the
Removed Accounts on the date specified in such notice (the "Repurchase Date").
---------------
The Repurchase Price for an optional repurchase effected pursuant to this
Section 6.2(a) shall be for Receivables purchased pursuant to Section 2.7 of the
-------------- -----------
Transfer and Servicing Agreement, an amount equal to the total recorded unpaid
balance of such repurchased Receivables (including Principal Receivables and
Finance Charge Receivables) on the Repurchase Date. Upon execution and delivery
of any Reconveyance effecting any repurchase as contemplated in this Section
-------
6.2(a), Buyer shall have no further right, title, or interest in any Receivables
-----
from the Removed Accounts.
(b) Payment of the Repurchase Price as specified in Section 6.2(a) above
--------------
shall be made in any manner provided for in Section 6.1; provided, however, that
----------- -------- -------
the repurchasing RPA Seller must make payment of a sufficient portion of the
Repurchase Price in immediately available funds to enable Buyer to make any cash
payment to the Issuer then required under the Transfer and Servicing Agreement.
Section 6.3 Conveyance of Repurchased Receivables. On or prior to the date
-------------------------------------
that an RPA Seller is required to repurchase Receivables under Section 6.1, or
-----------
on the date an RPA Seller is permitted to purchase any Receivables under Section
-------
6.2, or on any Repurchase Date, as the case may be, Buyer shall execute and
---
deliver to the repurchasing RPA Seller a Reconveyance substantially in the form
and upon the terms of Exhibit B, pursuant to which Buyer conveys to such RPA
---------
Seller all of Buyer's right, title, and interest in the Receivables to be
repurchased by such seller and, with respect to repurchases effected pursuant to
Section 6.2, within three Business Days thereafter, a computer file or
-----------
microfiche list containing a true and complete list of all Removed Accounts
identified by account number and the aggregate Receivable balances to be
repurchased by such RPA Seller in such Removed Accounts as of the Repurchase
Notice Date. Buyer shall (and shall cause the Indenture Trustee to) execute such
other documents or instruments of conveyance or take such other actions as the
repurchasing RPA Seller may reasonably require to effect any repurchase of
Receivables pursuant to this Article VI.
----------
Section 6.4 Sole Remedy. The obligation of an RPA Seller to repurchase
-----------
Ineligible Receivables pursuant to Section 6.1 shall constitute the sole remedy
-----------
available to Buyer, the Indenture Trustee, any Noteholder, any Servicer, any
Enhancement Provider or any other Person respecting any breach of the
representations and warranties set forth in Sections 4.1(j), (k), (l) and (m)
--------------- --- --- ---
with respect to such Receivables.
Section 6.5 Selection of Removed Accounts. By giving the written notice on
-----------------------------
the Repurchase Notice Date as required in Section 6.2 and by acceptance of the
-----------
Reconveyance, an RPA Seller represents and warrants that no selection procedures
believed by such RPA Seller to be materially adverse to the interests of Buyer
or the holders of the Notes were utilized in selecting the Removed Accounts.
Section 6.6 Assignment of Repurchase Rights and Obligations. The RPA
-----------------------------------------------
Sellers may elect (between themselves, and without the necessity of any consent
or approval of any other Person) that any repurchase of Receivables required or
permitted to be effected by an RPA Seller (the "Assignor RPA Seller") under
-------------------
Section 6.1 or Section 6.2 may be effected by the other RPA Seller (the
----------- -----------
"Assignee RPA Seller"), with such election to be made by the RPA Sellers'
-------------------
delivery
16
to Buyer of notice, not more than two Business Days prior to the date of such
repurchase (or such later time as to which Buyer may consent) of such election,
which notice shall identify the Receivables subject to such election. Upon
delivery of such notice all rights and obligations of the Assigner RPA Seller in
respect of such repurchase shall be automatically assigned to the Assignee RPA
Seller, the Assignor RPA Seller shall have no rights, liabilities or obligations
in respect of such repurchase, and such repurchase shall thereupon be
consummated by and in the name of the Assignee RPA Seller.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions to Buyer's Obligations Regarding Initial
---------------------------------------------------
Receivables. The obligations of Buyer to purchase the Receivables in Accounts on
-----------
the SMT Termination Date shall be subject to the satisfaction of the following
conditions:
(a) All representations and warranties of the RPA Sellers contained in this
Agreement shall be true and correct on the SMT Termination Date with the same
effect as though such representations and warranties had been made on such date;
(b) All information concerning the Accounts provided to Buyer shall be true
and correct as of the SMT Termination Date in all material respects;
(c) FCNB shall have delivered or caused to be delivered to Buyer a computer
file or microfiche list containing a true and complete list of all Accounts
identified by account number and by the Receivables balance as of the SMT
Termination Date, and the RPA Sellers shall have substantially performed all
other obligations required to be performed by the provisions of this Agreement;
(d) Each RPA Seller shall have recorded and filed, at its expense, any
financing statement with respect to the Receivables (other than Receivables in
Additional Accounts) now existing and hereafter created for the transfer of
accounts (as defined in Section 9-102 of the UCC as in effect in the State of
Illinois) meeting the requirements of applicable state law in such manner and in
such jurisdictions as are necessary to perfect the sale of the Receivables to
Buyer, and shall have delivered a file-stamped copy of such financing statements
or other evidence of such filings (which may, for purposes of this paragraph,
consist of telephone confirmations of such filings) to Buyer;
(e) On or before the SMT Termination Date, the Transfer and Servicing
Agreement shall have been duly executed and delivered by the parties thereto and
the initial closing under the Transfer and Servicing Agreement shall take place
simultaneously with the initial closing hereunder; and
(f) All corporate and legal proceedings and all instruments in connection
with the transactions contemplated by this Agreement shall be satisfactory in
form and substance to Buyer, and Buyer shall have received from the RPA Sellers
copies of all documents (including records of corporate proceedings) relevant to
the transactions herein contemplated as Buyer may reasonably have requested.
17
Section 7.2 Conditions to Buyer's Obligations Regarding Supplemental
--------------------------------------------------------
Conveyances. The obligations of Buyer to purchase any Receivables created under
-----------
any Additional Accounts shall be subject to the satisfaction of the following
conditions:
(a) All representations and warranties of the RPA Sellers contained in this
Agreement shall be true and correct on the Addition Date with the same effect as
though such representations and warranties had been made on such date;
(b) All information concerning the Additional Accounts provided or to be
provided to Buyer shall be true and correct in all material respects as of the
Addition Date with respect to Additional Accounts added pursuant to Section
-------
2.2(a) and as of the fifth Business Day after the first day of the calendar
-----
month occurring after any Addition Date arising under Section 2.2(c);
--------------
(c) On or before each Addition Date with respect to Additional Accounts
added pursuant to Section 2.2(a) and on or before the fifth Business Day after
--------------
the first day of the Monthly Period occurring after any Addition Date arising
under Section 2.2(c): (i) FCNB shall have indicated or caused to be indicated in
--------------
the computer files of the Receivables that Receivables created in respect of the
Additional Accounts have been sold to Buyer in accordance with this Agreement
and transferred to the Issuer pursuant to the Transfer and Servicing Agreement
for the benefit of the Noteholders; (ii) FCNB shall have delivered or caused to
be delivered to Buyer (or to the Owner Trustee, if so directed by Buyer) a
computer file or microfiche list containing a true and correct list of all such
Additional Accounts, identified by account number and by the Receivable balance
as of the Addition Date for Additional Accounts added pursuant to Section 2.2(a)
--------------
or as of such fifth Business Day of a Monthly Period with respect to Additional
Accounts added pursuant to Section 2.2(c); and (iii) the RPA Seller shall have
--------------
substantially performed all other obligations required to be performed by the
provisions of this Agreement;
(d) The appropriate RPA Seller or RPA Sellers shall have executed and
delivered a Supplemental Conveyance in conform with the requirement of Section
-------
2.2; and
---
(e) Each RPA Seller shall have recorded and filed, at its expense, any
financing statement with respect to the Receivables in such Additional Accounts
now existing and hereafter created in connection with the transfer of accounts
(as defined in Section 9-102 of the UCC as in effect in the State of Illinois)
meeting the requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect the sale of the Receivables to Buyer,
and shall have delivered a file-stamped copy of such financing statements or
other evidence of such filings (which may, for purposes of this paragraph,
consist of telephone confirmations of such filings) to Buyer.
Section 7.3 Conditions Precedent to RPA Sellers' Obligations. The
------------------------------------------------
obligations of an RPA Seller to sell Receivables on the SMT Termination Date and
on any Addition Date shall be subject to the satisfaction of the following
conditions:
(a) All representations and warranties of Buyer contained in this Agreement
shall be true and correct with the same effect as though such representations
and warranties had been made on such date;
18
(b) Payment or provision for payment of the Purchase Price shall have been
made in accordance with the provisions of Sections 3.3 and 3.4.
------------- ---
(c) All corporate and legal proceedings and all instruments in connection
with the transactions contemplated by this Agreement shall be satisfactory in
form and substance to the RPA Sellers, and the RPA Sellers shall have received
from Buyer copies of all documents (including records of corporate proceedings)
relevant to the transactions herein contemplated as the sellers may reasonably
have requested.
ARTICLE VIII
TERM & TERMINATION
Section 8.1 Term. This Agreement shall commence as of the date of execution
----
and delivery hereof and shall continue in full force and effect until: (a) the
Issuer terminates; or (b) upon the occurrence of any of the following events:
Buyer or either RPA Seller shall (i) become insolvent, (ii) fail to pay its
debts generally as they become due, (iii) voluntarily seek, consent to, or
acquiesce in the benefit or benefits of any Debtor Relief Law, (iv) become a
party to (or be made the subject of) any proceeding provided for by any Debtor
Relief Law, other than as a creditor or claimant, and, in the event such
proceeding is involuntary, (1) within 10 Business Days after Buyer or such RPA
Seller, as applicable, has knowledge of such proceeding or the filing thereof
either (x) the petition instituting same has not been dismissed or (y) an order
has not been entered by the court having jurisdiction which allows continued
transfer to the Issuer or Buyer, as applicable, of Principal Receivables, in the
case of an RPA Seller's involuntary petition with no adverse effect to either
Buyer, the Issuer or the Noteholders, and in the case of Buyer's involuntary
petition with no adverse effect to either the Issuer or the Noteholders, or (2)
an order as contemplated in (1)(y) above having previously been entered, is no
longer in effect other than by reason of the termination of such proceeding;
provided, however, that Buyer shall have no duty to continue to purchase
-------- -------
Receivables or accept designation of Additional Accounts from and after the
filing of an involuntary petition but prior to dismissal; or (v) become unable
for any reason to convey or reconvey Receivables in accordance with the
provisions of this Agreement; provided, however, that the termination of this
--------- ------
Agreement pursuant to this Section 8.1(b) shall not discharge any Person from
--------------
any obligations incurred prior to such termination, including any obligations
with respect to Receivables sold prior to such termination. Notwithstanding
anything contained herein to the contrary, upon any termination of this
Agreement, Buyer shall not purchase Receivables created or accept Additional
Accounts designated on or after the date of such termination.
Section 8.2 Effect of Termination. No termination or rejection or failure
---------------------
to assume the executory obligations of this Agreement upon the bankruptcy of
either RPA Seller or Buyer shall be deemed to impair or affect the obligations
pertaining to any executed sale or executed obligations, including
pre-termination breaches of representations and warranties by either RPA Seller
or Buyer. Without limiting the foregoing, prior to termination, neither the
failure of FCNB to deliver or cause to be delivered computer records of
Additional Accounts or Settlement Statements, nor the failure of Buyer to pay a
Settlement Statement shall render such transfer or obligation executory, nor
shall the continued duties of the parties pursuant to Section 5 or Section 9.1
--------- -----------
of this Agreement render an executed sale executory.
19
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Amendment. This Agreement and the other Conveyance Papers and
---------
the rights and obligations of the parties hereunder may not be changed orally,
but only by an instrument in writing signed by Buyer and the RPA Sellers, with
prior notice to the Rating Agencies, in accordance with this Section 9.1. This
-----------
Agreement and any other Conveyance Papers may be amended from time to time by
Buyer and the RPA Sellers to correct or supplement any provisions herein or in
any other Conveyance Papers which may be inconsistent with any other provisions
herein or to add any other provisions with respect to matters or questions
arising under this Agreement or any other Conveyance Papers which shall not be
inconsistent with the provisions of this Agreement or any other Conveyance
Papers; provided, however, that such action shall not adversely affect in any
-------- -------
material respect the interests of the Indenture Trustee for the benefit of the
Notes, unless the Indenture Trustee shall consent thereto. Any Supplemental
Conveyance or Reconveyance executed in accordance with the provisions hereof
shall not be considered amendments to this Agreement. Any amendment that
modifies the Purchase Price or any obligation of Buyer or RPA Sellers must
satisfy the Rating Agency Condition.
Section 9.2 Governing Law. This Agreement and the other Conveyance Papers
-------------
shall be construed in accordance with the laws of the State of Illinois, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
Section 9.3 Notices. All demands, notices and communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to (a) in
the case of FCNB, First Consumers National Bank, ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attn: President, (b) in the case of SAC, Spiegel
Acceptance Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ Attn: President, and (c) in the case of Buyer, Spiegel Credit Corporation
III, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇
▇▇▇▇▇▇, Treasurer; or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party.
Section 9.4 Severability of Provisions. If any one or more of the
--------------------------
covenants, agreements, provisions or terms of this Agreement or any other
Conveyance Paper shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions, or terms of this Agreement or any
other Conveyance Paper and shall in no way affect the validity or enforceability
of the other provisions of this Agreement or of any other Conveyance Paper.
Section 9.5 Assignment. Notwithstanding anything to the contrary contained
----------
herein, other than Buyer's assignment of its rights, title, and interests in,
to, and under this Agreement to the Indenture Trustee for the benefit of the
Noteholders as contemplated by the Transfer and Servicing Agreement and Section
-------
9.6, and the RPA Sellers' limited assignment rights set forth in Section 6.6,
--- -----------
this Agreement and all other Conveyance Papers may not be assigned by the
parties hereto.
20
Section 9.6 Acknowledgment and Agreement of RPA Sellers. By execution
-------------------------------------------
below, the RPA Sellers expressly acknowledge and agree that all of Buyer's
rights, titles and interest in, to and under this Agreement, including all of
Buyer's rights, titles and interests in and to the Receivables purchased
pursuant to this Agreement, shall be assigned by Buyer to the Indenture Trustee
for the benefit of the Noteholders, and the RPA Sellers consent to such assent.
Section 9.7 Further Assurances. Buyer and the RPA Sellers agree to do and
------------------
perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the other party more fully to
effect the purposes of this Agreement and the other Conveyance Papers, including
the execution of any financing statements or continuation statements or
equivalent documents relating to the Receivables for filing under the provisions
of the UCC or other law of any applicable jurisdiction.
Section 9.8 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of Buyer and either RPA Seller, any right,
remedy, power or privilege hereunder, shall operate a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 9.9 Counterparts. This Agreement and all other Conveyance Papers
------------
may be executed in two or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
Section 9.10 Binding Effect; Third-Party Beneficiaries. This Agreement and
-----------------------------------------
the other Conveyance Papers will inure to the benefit of and be binding upon the
parties hereto, and their respective successors and permitted assigns. The
Indenture Trustee shall be considered a third-party beneficiary of this
Agreement.
Section 9.11 Merger and Integration. Except as specifically stated
----------------------
otherwise herein, this Agreement and all the other Conveyance Papers set forth
the entire understanding of the parties relating to the subject matter hereof,
and all prior understandings, written or oral, are superseded by this Agreement
and all the other Conveyance Papers. This Agreement and the other Conveyance
Papers may not be modified, amended, waived or supplemented except as provided
herein.
Section 9.12 Headings. The headings herein are for purposes of reference
--------
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
Section 9.13 Schedules and Exhibits. The schedules and exhibits attached
----------------------
hereto and referred to herein shall constitute a part of this Agreement and are
incorporated into this Agreement for all purposes.
21
IN WITNESS WHEREOF, Buyer and RPA Sellers have caused this Agreement to be
duly executed by their respective officers as of the day and year first written
above.
SPIEGEL CREDIT CORPORATION III
Name: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
FIRST CONSUMERS NATIONAL BANK
Name: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
SPIEGEL ACCEPTANCE CORPORATION
Name: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
S-1
2
SCHEDULE ONE
TO
RECEIVABLES PURCHASE AGREEMENT
Accounts
--------
As contained on an appropriately Labeled Computer Record
Delivered Contemporaneously with this Agreement.
Aggregate Receivables as of the SMT Termination Date: $
-------------------
Aggregate Principal Balance as of the SMT Termination Date: $
-------------------
SCHEDULE TWO
TO
RECEIVABLES PURCHASE AGREEMENT
SAC's Chief Executive Office:
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FCNB's Chief Executive Office:
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Locations Of Books And Records:
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SCHEDULE THREE
to
RECEIVABLES PURCHASE AGREEMENT
PERFECTION REPRESENTATIONS, WARRANTIES
AND COVENANTS
(a) In addition to the representations, warranties and covenants contained
in the Receivables Purchase Agreement, each RPA Seller, but only as to itself
and as to those Receivables, if any, transferred by it under the Receivables
Purchase Agreement, hereby represents, warrants and covenants to Buyer as
follows as of October 17, 2001:
(i) The Receivables Purchase Agreement creates either (A) a valid
transfer to Buyer of all right, title and interest of RPA Seller in, to and
under the Receivables conveyed to Buyer pursuant to Section 2.1 of the
Receivables Purchase Agreement, and such property will be held by Buyer
free and clear of any Lien, except for Liens permitted pursuant to
paragraph (a) (iii) below, or (B) a valid and continuing security interest
-------------------
(as defined in the applicable Uniform Commercial Code) in the Receivables
in favor of Buyer, which is enforceable with respect to existing
Receivables in the Accounts on October 17, 2001, and, with respect to
Receivables thereafter arising in the Accounts at the time such Receivables
arise. If the Receivables Purchase Agreement constitutes the grant of a
security interest to Buyer in the Receivables, such security interest is,
and in the case of Receivables created after October 17, 2001, upon the
creation thereof will be, prior to all other Liens (other than Liens
permitted pursuant to paragraph (a) (iii) below).
-------------------
(ii) The Receivables constitute "accounts" within the meaning of the
applicable Uniform Commercial Code.
(iii) Immediately prior to the conveyance of the Receivables pursuant
to the Receivables Purchase Agreement, RPA Seller owns and has good and
marketable title to, or has a valid security interest in, the Receivables
free and clear of any Lien, claim or encumbrance of any Person; provided
--------
that nothing in this paragraph (a) (iii) shall prevent or be deemed to
-------------------
prohibit RPA Seller from suffering to exist upon any of the Receivables any
Liens for any taxes if such taxes shall not at the time be due and payable
or if RPA Seller shall currently be contesting the validity thereof in good
faith by appropriate proceedings and shall have set aside on its books
adequate reserves with respect thereto.
(iv) RPA Seller has caused the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions
under applicable law in order to perfect the security interest granted to
Buyer under the Receivables Purchase Agreement in the Receivables arising
in the Accounts.
(v) Other than the transfer of the Receivables to Buyer pursuant to
the Receivables Purchase Agreement, RPA Seller has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Receivables. RPA Seller has not
authorized the filing of and is not aware of any financing statements
against RPA Seller that include a description of collateral covering the
Receivables, except for any financing statements or assignments filed
pursuant to the Receivables Purchase Agreement or the Transfer and
Servicing Agreement.
(vi) RPA Seller is not aware of any judgment, ERISA or tax lien
filings against Seller.
(vii) Notwithstanding any other provision of the Receivables Purchase
Agreement, the representations and warranties set forth in this Schedule 3
----------
shall be continuing, and remain in full force and effect, until such time
as all Notes have been finally and fully paid. Buyer shall not, without
satisfying the Rating Agency Condition, waive a breach of any
representation or warranty set forth in this Schedule 3.
----------
(b) RPA Seller and Servicer covenant that, in order to evidence the
interests of RPA Seller and Buyer under the Receivables Purchase Agreement, RPA
Seller and Servicer shall take such action, or execute and deliver such
instruments (other than effecting a Filing (as defined below), unless such
Filing is effected by Servicer in accordance with this paragraph (b)) as may be
necessary or advisable (including, without limitation, such actions as are
requested by Indenture Trustee) to maintain and perfect, as a first priority
interest, Buyer's security interest in the Receivables. Servicer shall, from
time to time and within the time limits established by law, prepare and present
to Indenture Trustee for Indenture Trustee to authorize (based in reliance on
the Opinion of Counsel hereinafter provided for) the Servicer to file, all
financing statements, amendments, continuations, initial financing statements in
lieu of a continuation statement, terminations, partial terminations, releases
or partial releases or any other filings necessary or advisable to continue,
maintain and perfect as a first-priority interest (each a "Filing"). The
------
Servicer shall present each such Filing to the Indenture Trustee together with
(x) an Opinion of Counsel to the effect that such Filing (i) is consistent with
the grant of the security interest to the Buyer pursuant to the Receivables
Purchase Agreement, (ii) satisfies all requirements and conditions to such
Filing in the Receivables Purchase Agreement and (iii) satisfies the
requirements for a Filing of such type under the Uniform Commercial Code in the
applicable jurisdiction (or if the Uniform Commercial Code does not apply, the
applicable statute governing the perfection of security interests), and (y) a
form of authorization for Indenture Trustee's signature. Upon receipt of such
Opinion of Counsel and form of authorization, Indenture Trustee shall promptly
authorize in writing Servicer to, and Servicer shall, effect such Filing under
the Uniform Commercial Code without the signature of RPA Seller or Buyer where
allowed by applicable law. Notwithstanding anything else in the Receivables
Purchase Agreement to the contrary, the Servicer shall not have any authority to
effect a Filing without obtaining written authorization from the Indenture
Trustee in accordance with this paragraph (b).
-------------
(c) Notwithstanding paragraph (b) of this Schedule Three, the Indenture
Trustee hereby consents to, and no further authorization or approval from the
Indenture Trustee is necessary with respect to, the following Filings made in
connection with the execution of this Agreement:
New Financing Statements:
------------------------
1. Financing statements naming Buyer as secured party and FCNB as
debtor, in Oregon and the District of Columbia, covering receivables sold
by FCNB to Buyer pursuant to this Agreement.
2. Financing statement naming Buyer as secured party and SAC as
debtor, in Delaware, covering receivables sold by SAC to Buyer pursuant to
this Agreement.
Termination Statements:
----------------------
3. Financing statement naming Buyer as secured party and FCNB as
debtor, in Oregon, and in lieu of continuation statement, in the District
of Columbia covering receivables sold by FCNB to Buyer pursuant to the
Amended and Restated Receivables Purchase Agreement dated as of December
13, 1994.
4. Financing statements naming Buyer as secured party and SAC as
debtor, in Delaware and Illinois, covering receivables sold by SAC to Buyer
pursuant to the Amended and Restated Receivables Purchase Agreement dated
as of December 13, 1994.
EXHIBIT A
TO
RECEIVABLES PURCHASE AGREEMENT
FORM OF SUPPLEMENTAL CONVEYANCE
-------------------------------
SUPPLEMENTAL CONVEYANCE No. OF RECEIVABLES IN ADDITIONAL ACCOUNTS (the
---
"Supplemental Conveyance"), dated as of , 20 , by and among
----------------------- --------------- --
FIRST CONSUMERS NATIONAL BANK, a national banking association ("FCNB"), SPIEGEL
----
ACCEPTANCE CORPORATION III, a Delaware corporation ("SAC"; FCNB and SAC are
---
collectively referred to herein as the "RPA Sellers"), and SPIEGEL CREDIT
-----------
CORPORATION III, a Delaware corporation ("Buyer"), pursuant to the Receivables
-----
Purchase Agreement referred to below.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Buyer and RPA Sellers are parties to the Receivables Purchase
Agreement, dated as of October 17, 2001 ( the "Purchase Agreement");
-------- ---------
WHEREAS, pursuant to Section 2.2 of the Purchase Agreement, (i) under
------- ---
certain conditions, RPA Sellers are required to sell Receivables in Additional
Accounts; or (ii) RPA Sellers may designate and sell Additional Accounts to be
included as Accounts; or (iii) under certain circumstances, an Eligible Account
is to be automatically included as an Additional Account;
WHEREAS, RPA Sellers now wish to sell the Receivables in the Additional
Accounts described on Schedule 1, whether now existing or hereafter created, to
----------
Buyer; and
WHEREAS, Buyer is willing to accept such sale and conveyance subject to the
terms and conditions hereof;
NOW THEREFORE, RPA Sellers and Buyer hereby agree as follows:
1. Defined Terms. Capitalized terms used in this Supplemental Conveyance
have their respective meanings set forth in the Purchase Agreement, except that
"Addition Date" means, with respect to the Additional Accounts added pursuant to
Section 2.2(a) of the Purchase Agreement and designated hereby, , 20 .
---------- --
"Notice Date" means, with respect to the Additional Accounts added pursuant
-----------
to Section 2.2 of the Purchase Agreement and designated hereby, , 20
----------- -------- --
(which shall be a date on or before the fifth Business Day prior to the Addition
Date).
2. Designation of Additional Accounts. On or prior to the Addition Date, in
respect of Additional Accounts added pursuant to Section 2.2 of the Purchase
Agreement and on or before five Business Days after the first day of the
calendar month next succeeding the calendar month in which Additional Accounts
were added pursuant to Section 2.2(c), FCNB shall have delivered or caused to be
delivered to Buyer (or to the Owner Trustee, if Buyer so directs) a
A-1
computer file or microfiche list containing a true and complete list of all
charge accounts which as of the Addition Date shall be deemed to be Additional
Accounts, such Additional Accounts being identified by account number and by
Receivable balance as of the Addition Date in respect of Additional Accounts
added pursuant to Section 2.2(a) of the Purchase Agreement or as of such fifth
Business Day of the month in respect of Additional Accounts added during the
preceding month pursuant to Section 2.2(c) of the Purchase Agreement. Such list
shall be marked as Schedule 1 to this Supplemental Conveyance, delivered to
Buyer as confidential and proprietary and, as of the Addition Date, shall be
incorporated into and made a part of this Supplemental Conveyance, the Purchase
Agreement, and any other Conveyance Paper.
3. Sale of Receivables. (a) For value received, each RPA Seller does hereby
sell, transfer, convey and assign to Buyer, without recourse, on and after the
Addition Date, all of such RPA Seller's right, title and interest in, to and
under the Receivables now existing or hereafter created in the Additional
Accounts designated on Schedule 1, all monies due or to become due with respect
thereto (including all Finance Charge Receivables), all Collections, Recoveries
and other proceeds hereof and Insurance Proceeds relating thereto.
(b) In connection with such sale and conveyance, each RPA Seller agrees (i)
to record and file at its own expense, any financing statement for the purchase
of accounts (as defined in Section 9-102 of the UCC as in effect in the State of
Illinois), with respect to the Receivables now existing and hereafter created in
the Additional Accounts designated hereby, meeting the requirements of
applicable state law and in such jurisdictions as are necessary to perfect the
sale of the Receivables from such RPA Seller to Buyer and the transfer of such
Receivables from Buyer to the Issuer, and (ii) to deliver a file-stamped copy of
such financing statements or other evidence of such filings (which may, for
purposes of this Section 3, consist of telephone confirmations of such filings)
---------
to Buyer (or to the Owner Trustee, if Buyer so directs) on or prior to the date
of this Supplemental Conveyance.
(c) In connection with such sale and conveyance, FCNB agrees, at its own
expense, on or prior to the date of this Supplemental Conveyance to indicate or
cause to be indicated in its books and records and in the computer files of the
Receivables as required by the Purchase Agreement that Receivables created in
connection with the Additional Accounts designated hereby have been sold to
Buyer in accordance with the Purchase Agreement and transferred by Buyer to the
Issuer for the benefit of the Noteholders.
(d) The parties acknowledge and agree that, as contemplated by Section 2.3
-----------
of the Purchase Agreement, the Receivables to be transferred hereunder to Buyer
on the Addition Date shall be so transferred to Buyer by [FCNB] [SAC], and that
Receivables in the Additional Accounts designated hereby which are to be
transferred to Buyer after the Addition Date, shall be so transferred by FCNB.
4. Acceptance by Buyer. Buyer hereby acknowledges its acceptance of all
right, title and interest previously held by RPA Sellers in, to and under the
Receivables sold and conveyed hereby. Buyer further acknowledges that, prior to
or simultaneously with the execution and delivery of this Supplemental
Conveyance, FCNB delivered or caused to be delivered to Buyer or to the Owner
Trustee the computer file or microfiche list described in Section 2 of this
Supplemental Conveyance.
A-2
5. Representations and Warranties of RPA Seller. Each RPA Seller, but only
as to itself and as to those Receivables, if any, transferred by it hereunder,
hereby severally (and not jointly) represents and warrants to Buyer as of the
Addition Date that:
(a) Legal, Valid and Binding Obligation. This Supplemental conveyance
-----------------------------------
constitutes a legal, valid, and binding obligation of such RPA Seller,
enforceable against such RPA Seller in accordance with its terms, except as such
enforceability may be limited by Debtor Relief Laws and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit or law or in equity);
(b) Schedule 1. Schedule 1 to this Supplemental Conveyance and the computer
----------- ----------
file or microfiche list delivered pursuant to Section 2 of this Supplemental
---------
Conveyance is an accurate and complete listing in all material respects of all
the Additional Accounts as of the Addition Date and the information contained
therein with respect to the identify of such Additional Accounts and the
Receivables existing thereunder is true and correct in all material respects as
of the Addition Date;
(c) Eligibility of Accounts. Each Additional Account designated hereby is
-----------------------
an Eligible Account;
(d) Selection Procedures. The Additional Accounts were assigned randomly to
--------------------
Cycles by FCNB and no selection procedures believed by such RPA Seller to be
materially adverse to the interests of Buyer or its successors and assigns were
utilized in selecting the Additional Accounts designated hereby from available
Eligible Accounts;
(e) Insolvency. Such RPA Seller is not insolvent; and, after giving effect
----------
to the conveyance set forth in Section 3 of this Supplemental Conveyance, will
---------
not be insolvent;
(f) Security Interest. This Supplemental Conveyance constitutes either (i)
-----------------
a valid sale, assignment, and conveyance or, in the case of Accounts added
pursuant to Section 2.2(c) of the Purchase Agreement, confirmation of a valid
--------------
sale, assignment, and conveyance to Buyer of all rights, title and assignment,
and conveyance to Buyer of all right, title and interest of such RPA Seller in,
to, and under the Receivables now existing and hereafter created in respect of
the Additional Accounts designated hereby, all monies due or to become due with
respect thereto (including all Finance Charge Receivables) together with all
Recoveries, Collections and other proceeds of such Receivables and Insurance
Proceeds relating thereto, or (ii) a grant of a security interest in such
Receivables, and such property will be held free and clear of any Lien of any
Person claiming through or under such RPA Seller except for Liens permitted
under Section 5.1(d) of the Purchase Agreement.
--------------
(g) Reconfirmation of Representations and Warranties. All representations
------------------------------------------------
and warranties made by such RPA Seller pursuant to Section 4.1 of the Purchase
-----------
Agreement remain true and correct in all respects as of the Addition Date as if
made on such date.
6. Conditions Precedent. (a) The acceptance of Buyer set forth in Section 4
------------------- ---------
above and the amendment of the Purchase Agreement set forth in Section 8 below
---------
are subject to the satisfaction by the RPA Sellers, on or prior to the Addition
Date, of the following conditions precedent:
A-3
(i) All information concerning the Additional Accounts provided or to
be provided to Buyer shall be true and correct in all material respects as
of the Addition Date with respect to Additional Accounts added pursuant to
Section 2.2 (a) of the Purchase Agreement and as of the fifth Business Day
---------------
after the first day of the calendar month occurring after any Additional
Date arising under Section 2.2(c) of the Purchase Agreement;
--------------
(ii) On or before each Addition Date with respect to Additional
Accounts added pursuant to Section 2.2(a) of the Purchase Agreement: (i)
--------------
FCNB shall have indicated or caused to be indicated in its books and
records and in the computer files of the Receivables that Receivables
created in respect of the Additional Accounts have been sold to Buyer in
accordance with this Agreement for the benefit of the Noteholders, (ii)
FCNB shall have delivered or caused to be delivered to Buyer (or to the
Owner Trustee, if so directed by Buyer) a computer file or microfiche list
containing a true and correct list of all such Additional Accounts,
identified by account number and by Receivable balance as of the Addition
Date, and (iii) the RPA Sellers shall have substantially performed all
other obligations required to be performed by the provisions of the
Purchase Agreement and this Supplemental Conveyance;
(iii) Each RPA Seller shall have recorded and filed, at its expense,
all financing statements required to comply with Section 3(b) of this
------------
Supplemental Conveyance.
(b) The sale by the RPA Sellers set forth in Section 3 and the amendment of
---------
the Purchase Agreement set forth in Section 8 are subject to the satisfaction by
---------
Buyer, on or prior to the Addition Date, of the following:
(i) All representations and warranties of Buyer contained in the
Purchase Agreement shall be true and correct with the same effect as though
such representations and warranties had been made on such date;
(ii) Payment or provisions for payment of the Purchase Price by Buyer
in accordance with the provisions of Section 3 of the Purchase Agreement;
---------
and
(iii) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Supplemental
Conveyance shall be satisfactory in form and substance to the RPA Sellers,
and the RPA Sellers shall have received from Buyer copies of all documents
(including records of corporate proceedings) relevant to the transactions
herein contemplated as the RPA Sellers may reasonably have requested.
7. Additional Information. Each RPA Seller shall have delivered to Buyer
such information as was reasonably requested by Buyer to satisfy itself as to
the accuracy of the representation and warranty set forth in Section 5(e) of
this Supplemental Conveyance.
8. Amendment of the Purchase Agreement. The Purchase Agreement is hereby
amended to provide that al references therein to the "Receivables Purchase
Agreement", to "this Agreement", and "herein" shall be deemed from and after the
Addition Date to be a dual reference to the Purchase Agreement a supplemented by
this Supplemental Conveyance. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants, and
A-4
conditions of the Purchase Agreement shall remain unamended and shall continue
to be, and shall remain, in full force and effect in accordance with its terms
and except as expressly provided herein shall not constitute or be deemed to
constitute a waiver of compliance with or a consent to noncompliance with any
term or provision of the Purchase Agreement.
9. Counterparts. This Supplemental Conveyance may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
10. Governing Law. This Supplemental Conveyance shall be construed in
accordance with the laws of the State of Illinois, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
A-5
IN WITNESS WHEREOF, the undersigned have caused this Supplemental
Conveyance to be duly executed and delivered by their respective duly authorized
officers on the day and year first above written.
SPIEGEL CREDIT CORPORATION III
By:
-------------------------------
Title:
FIRST CONSUMERS NATIONAL BANK
By:
-------------------------------
Title:
SPIEGEL ACCEPTANCE CORPORATION
By:
-------------------------------
Title:
A-6
SCHEDULE 1
ADDITIONAL ACCOUNTS
A-7
SCHEDULE 2
A-8
EXHIBIT B
TO
RECEIVABLES PURCHASE AGREEMENT
FORM OF RECONVEYANCE
--------------------
RECONVEYANCE No. OF RECEIVABLES (this "Reconveyance"), dated as of
---- ------------
, 20 , by and between SPIEGEL CREDIT CORPORATION III, a
---------------- --
Delaware corporation, ("SCCIII") and , a ("RPA Seller"),
------ ---------- ----------- ----------
pursuant to the Receivables Purchase Agreement referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, SCCIII, RPA Seller, [First Consumers National Bank] and [Spiegel
Acceptance Corporation] are parties to the Receivables Purchase Agreement, dated
as of October 17, 2001 (the "Purchase Agreement");
------------------
WHEREAS, pursuant to Section 6 of the Purchase Agreement (i) under certain
---------
conditions, RPA Seller is required to repurchase Receivables in certain
Accounts, or (ii) SCCIII may designate from time to time certain Accounts for
repurchase;
WHEREAS, pursuant to Section 6 of the Purchase Agreement SCIII wishes to
---------
sell and convey to RPA Seller the Receivables from the Accounts listed on
Schedule 1 (the "Removed Accounts"); and
---------- ----------------
WHEREAS, RPA Seller is willing to repurchase Receivables under the Removed
Accounts by payment, or provision for the payment, of the Repurchase Price
therefor pursuant to Section 6 of the Purchase Agreement;
---------
NOW THEREFORE, SCCIII and RPA Seller hereby agree as follows:
1. Defined Terms. Capitalized terms used in this Reconveyance have their
-------------
respective meanings set forth in the Purchase Agreement, except that "Repurchase
Date" means, with respect to the Removed Accounts designated hereby,
, 20
------------ --
2. Designation of Removed Accounts. Within three Business Days after the
-------------------------------
Repurchase Date, RPA Seller shall deliver or cause to be delivered to SCCIII a
computer file, microfiche or written list containing a true and complete list of
all Removed Accounts identified by account number and Receivable balance of such
Removed Accounts. Such list shall be marked as Schedule 1 to this Reconveyance
and shall be incorporated into and made a part of this Reconveyance as of the
Repurchase Date and of the Purchase Agreement and other Conveyance Papers.
3. Conveyance of Receivables. (a) For value received, SCCIII does hereby
-------------------------
sell, transfer, assign, and set-over to RPA Seller, without recourse, on and
after the Repurchase Date, all right, title and interest of SCCIII in, to, and
under the Receivables now existing and hereafter created in the Removed Accounts
designated hereby, all monies due or to become due with
B-1
respect thereto (including all Finance Charge Receivables), all proceeds thereof
and Insurance Proceeds relating thereto.
(b) In connection with such transfer, SCCIII agrees to (and agrees to cause
Indenture Trustee to) execute and deliver to RPA Seller on or prior to the date
of this Reconveyance, a termination statement or partial release with respect to
the Receivables now existing and hereafter created in the Removed Accounts
designated hereby evidencing the sale and conveyance of the Receivables in the
Removed Accounts and the release of all liens or security interests thereon,
which shall meet the requirements of applicable state law and shall be filed in
such manner and in such jurisdictions as are necessary to evidence such sale and
conveyance and remove such lien.
4. Acceptance by RPA Seller. RPA Seller hereby acknowledges that, prior to
------------------------
or simultaneously with the execution and delivery of this Reconveyance, SCCIII
delivered or caused to be delivered to RPA Seller the computer file or
microfiche list described in Section 2 of this Reconveyance.
5. Representations and Warranties of SCCIII. SCCIII hereby represents and
----------------------------------------
warrants to RPA Seller as of the Repurchase Date:
(a) Legal, Valid and Binding Obligation. This Reconveyance constitutes a
-----------------------------------
legal, valid, and binding obligation of SCCIII, enforceable against SCCIII in
accordance with its terms, except as such enforceability may be limited by
Debtor Relief Laws and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity); and
(b) Schedule 1. Schedule 1 to this Reconveyance and the computer file or
----------
microfiche list delivered pursuant to Section 2 of this Reconveyance is an
accurate and complete listing in all material respects of all the Removed
Accounts as of the Repurchase Date and the information contained therein with
respect to the identity of such Removed Accounts and the Receivables existing
thereunder is true and correct in all material respects as of the Repurchase
Date;
(c) Compliance with Transfer and Servicing Agreement. SCCIII has effected a
------------------------------------------------
retransfer from the Issuer of the Receivables now existing or hereafter arising
under the Removed Accounts in compliance with the provisions of the Transfer and
Servicing Agreement.
(d) Selection Procedures. In respect of Removed Accounts designated
--------------------
pursuant to Section 6.2 of the Purchase Agreement, SCCIII and RPA Seller have
-----------
mutually agreed as to the designation of the Removed Accounts.
(e) Insolvency. As of the Repurchase Notice Date and as of the Repurchase
----------
Date, SCCIII is not insolvent and, after giving effect to the conveyance set
forth in Section 3 of this Reconveyance, SCCIII will not be insolvent.
---------
6. Conditions Precedent. (a) The amendment of the Purchase Agreement set
forth in Section 7 is subject to the satisfaction by SCCIII, on or prior to the
Repurchase Date, of the following conditions precedent:
B-2
(i) All information concerning the Removed Accounts provided or to be
provided to RPA Seller shall be true and correct in all material respects
as of the Repurchase Date;
(ii) SCCIII shall have, and on or before the third Business Day after
the Repurchase Date: (i) delivered to RPA Seller a computer file or
microfiche list containing a true and correct list of all such Removed
Accounts, identified by account number and by Receivable balance as of the
Repurchase Date; and (ii) substantially performed all other obligations
required to be performed by the provisions of this Reconveyance.
(iii) SCCIII shall have delivered to RPA Seller the termination
statements and partial releases required to be delivered in Section 3(b) of
------------
this Reconveyance.
(b) The amendment of the Purchase Agreement set forth in Section 7 is
subject to payment or provision for payment of the Repurchase Price in
accordance with the provisions of Section 6 of the Purchase Agreement on or
prior to the Repurchase Date.
7. Amendment of the Purchase Agreement. The Purchase Agreement is hereby
-----------------------------------
amended to provide that all references therein to the "Receivables Purchase
Agreement", to "this Agreement" and "herein" shall be deemed from and after the
Repurchase Date to be a dual reference to the Purchase Agreement as supplemented
by this Reconveyance. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Purchase
Agreement shall remain unamended and shall continue to be, and shall remain, in
full force and effect in accordance with its terms and except as expressly
provided herein shall not constitute or be deemed to constitute a waiver of
compliance with or a consent to non-compliance with any term or provision of the
Purchase Agreement.
8. Counterparts. This Reconveyance may be executed in two or more
------------
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
9. Governing Law. This Reconveyance shall be construed in accordance with
-------------
the laws of the State of Illinois, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
B-3
IN WITNESS WHEREOF, the undersigned have caused this Reconveyance to be
duly executed and delivered by their respective duly authorized officers on the
day and year first above written.
SPIEGEL CREDIT CORPORATION III
By:
-------------------------------
Title:
[FIRST CONSUMERS NATIONAL BANK]
By:
-------------------------------
Title:
[SPIEGEL ACCEPTANCE CORPORATION]
By:
-------------------------------
Title:
B-4
SCHEDULE 1
REMOVED ACCOUNTS
----------------
B-5
EXHIBIT C
TO
RECEIVABLES PURCHASE AGREEMENT
FORM OF SETTLEMENT STATEMENT
SPIEGEL CREDIT CORPORATION III
RECEIVABLES PURCHASE AGREEMENT
Current Settlement Date: , 20
--------------- --
First Consumers National Bank ("FCNB"), Spiegel Acceptance Corporation ("SAC")
---- ---
and Spiegel Credit Corporation III ("Buyer"), pursuant to the Receivables
-----
Purchase Agreement (the "Purchase Agreement") dated as of October 17, 2001, by
------------------
and among FCNB, SAC and Buyer, do hereby agree and certify as follows:
1. Capitalized terms used in this Settlement
Statement have their respective meanings in the
Purchase Agreement. As used herein, the term
"Subject Period" means the Monthly Period
immediately preceding the calendar month in which
this Settlement Statement is delivered. This
Settlement Statement is being delivered pursuant
to Section 3.5 of the Purchase Agreement.
References hereto to certain sections are
references to the respective sections in the
Purchase Agreement.
2. The date of this Settlement Statement is a
Settlement Date under the Purchase Agreement
A. RECEIVABLES PURCHASED FROM FCNB AND PURCHASE PRICE FOR SUBJECT PERIOD
3. The aggregate unpaid balance of Receivables
conveyed to Buyer by FCNB and balance of
Receivables created in Accounts pursuant to the
Purchase Agreement during the Subject Period was
equal to..............................................$
-----------
4. The portion of the amount shown in item 3 paid in
cash during the Subject Period was equal to...........$
-----------
5. The portion of the amount shown in item 3 not paid
in cash during the Subject Period (item 3 minus
item 4) is equal to...................................$
-----------
B. RECEIVABLES PURCHASED FROM SAC AND PURCHASE PRICE FOR SUBJECT PERIOD
C-1
6. The aggregate unpaid balance of Receivables
conveyed to Buyer by SAC pursuant to the Purchase
Agreement during the Subject Period was equal to......$
-----------
7. The portion of the amount shown in item 6 paid in
cash during the Subject Period was equal to...........$
-----------
8. The portion of the amount shown in item 6 not paid
in cash during the Subject Period (item 6 minus
item 7) is equal to...................................$
-----------
C. RECEIVABLES REPURCHASED BY FCNB AND REPURCHASE PRICE FOR SUBJECT
PERIOD
9. The aggregate Repurchase Price of Receivables
repurchased by FCNB pursuant to Section 6.1 or 6.2
----------- ---
of the Purchase Agreement during the Subject
Period (the "FCNB Repurchased Receivables") was
----------------------------
equal to..............................................$
-----------
10. The portion of the Repurchase Price for the FCNB
Repurchased Receivables paid in cash during the
Subject Period was equal to...........................$
-----------
11. The portion of the Repurchase Price for the FCNB
Repurchased Receivables not paid in cash during
the Subject Period (item 9 minus item 10) is equal
to....................................................$
-----------
D. RECEIVABLES REPURCHASED BY SAC AND REPURCHASE PRICE FOR SUBJECT PERIOD
12. The aggregate Repurchase Price of Receivables
repurchased by SAC pursuant to Section 6.1 or 6.2
----------- ---
of the Purchase Agreement during the Subject
Period (the "SAC Repurchased Receivables") was
---------------------------
equal to..............................................$
-----------
13. The portion of the Repurchase Price for the SAC
Repurchased Receivables paid in cash during the
Subject Period was equal to...........................$
-----------
14. The portion of the Repurchase Price for the SAC
Repurchased Receivables not paid in cash during
the Subject Period (item 12 minus item 13) is
equal to..............................................$
-----------
C-2
In witness whereof, the undersigned have duly executed and delivered this
Settlement Statement this day of 20 .
-------- ---
SPIEGEL CREDIT CORPORATION III
By:
-------------------------------
Title:
FIRST CONSUMERS NATIONAL BANK
By:
-------------------------------
Title:
SPIEGEL ACCEPTANCE CORPORATION
By:
-------------------------------
Title:
C-3