Exhibit 4.8
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This SELLER SUBSTITUTION AMENDMENT AGREEMENT, dated as of December 31,
2001 (this "Agreement"), is made among (i) First Consumers National Bank, a
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national banking association ("FCNB"), as a Seller and as Servicer, (ii) First
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Consumers Credit Corporation, a Delaware corporation ("SPE"), (iii) Spiegel
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Credit Corporation III ("SCCIII"), a Delaware corporation, as a Seller, (iv)
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Spiegel, Inc., a Delaware corporation ("Spiegel") and (v) JPMorgan Chase Bank,
as Administrative Agent.
Background
A. The FCCCMNT Trust and the SCCMNT Trust have issued the Class A Notes
pursuant to (i) the FCCCMNT Indenture, (ii) the FCCCMNT Indenture
Supplement, (iii) the SCCMNT Indenture, and (iv) the SCCMNT Indenture
Supplement.
B. FCNB, SCCIII, Spiegel, the Administrative Agent and the Conduit Purchasers,
Bank Purchasers and Conduit Managing Agents named therein are party to a
Note Purchase Agreement, dated as of October 17, 2001 (the "Note Purchase
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Agreement"), relating to the purchase of the Class A Notes.
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C. FCNB wishes to substitute SPE for FCNB as the Seller with respect to the
FCMT Trust and the FCCCMNT Trust.
D. Subject to the terms and conditions set forth herein, SCCIII, Spiegel, the
Conduit Purchasers, Bank Purchasers and the Conduit Managing Agents are
willing to consent to such substitution.
Agreement
1. Substitution. Subject to the satisfaction of the conditions precedent
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specified in Section 9.9 of the Note Purchase Agreement, SPE is hereby
substituted for FCNB as a party to the Note Purchase Agreement in the
capacity of "Seller," and any and all provisions of the Note Purchase
Agreement that refer to or assume FCNB's status as a national banking
association are hereby amended, insofar as they relate to FCNB as a Seller,
to reflect the fact that SPE, the new Seller, is instead a corporation
formed under the laws of the State of Delaware. FCNB hereby assigns all of
its rights and obligations in its capacity as "Seller" under or in
connection with the Note Purchase Agreement to SPE and SPE hereby assumes
and agrees to perform all obligations of FCNB in its capacity as "Seller"
under or in connection with the Note Purchase Agreement.
To the extent that they have the power and authority to do so, without
the consent of the other parties to the Note Purchase Agreement, the parties
to this Agreement hereby amend and restate the final sentence of Section
15.7 of the Note Purchase Agreement to read in its entirety as follows:
"Each Spiegel Party (other than each Seller as to itself) and each Financing
Party agrees that so long as any Investor Notes issued under the FCCCMNT
Trust or the SCCMNT Trust or any Investor Certificates issued under the FCMT
Trust shall be outstanding or there shall not have elapsed one year plus one
day since the last day on which such Investor Notes or Investor Certificates
shall have been outstanding, it shall not file, or join in the filing of, a
petition against SCC III (in the case of the SCCMNT Trust) or the other
Seller (in the case of the FCCCMNT Trust or the FCMT Trust) under the
Bankruptcy Code,
or join in the commencement of any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar proceeding against SCC III (in the
case of the SCCMNT Trust) or the other Seller (in the case of the FCCCMNT
Trust or the FCMT Trust).". Each of the parties hereto further agrees not
to execute any future amendment, extension or other modification of the
Note Purchase Agreement unless that amendment, extension or other
modification (or a prior amendment, extension or modification executed by
all of the parties to the Note Purchase Agreement) contains a ratification
of the foregoing amendment.
2. Non-Petition. The parties to this Agreement hereby covenant and agree that
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they will not at any time institute against SPE, or join in instituting
against SPE, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other proceeding under any United States federal
or state bankruptcy or similar law.
3. Miscellaneous. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
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ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO
ITS CONFLICT OF LAW PROVISIONS. EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY AGREES TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING
JURISDICTION TO REVIEW THE JUDGMENTS THEREOF. EACH OF THE PARTIES HEREBY
WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO
VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED
COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS
DEEMED APPROPRIATE BY SUCH COURT.
[Signature page follows]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.
SPIEGEL CREDIT CORPORATION III, as Seller
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Treasurer
FIRST CONSUMERS NATIONAL BANK, as a Seller and
as Servicer
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Treasurer
SPIEGEL, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Treasurer
JPMORGAN CHASE BANK,
as Administrative Agent
By: /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
Vice President
FIRST CONSUMERS CREDIT CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Treasurer
