FINGERHUT COMPANIES, INC.
Buyer
and
FINGERHUT NATIONAL BANK
Seller
BANK RECEIVABLES PURCHASE AGREEMENT
Dated as of January 12, 1997
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Definitions . . . . . . . . . . . . . 1
Section 1.2 Other Definitional Provisions . . . . 8
ARTICLE II
PURCHASE, CONVEYANCE AND SERVICING
OF RECEIVABLES . . . . . . . . . . . . . . . . . . . . . 8
Section 2.1 Sale . . . . . . . . . . . . . . . . . 8
ARTICLE III
CONSIDERATION AND PAYMENT . . . . . . . . . . . . . . . 10
Section 3.1 Purchase Price . . . . . . . . . . . 10
Section 3.2 Payment of Purchase Price . . . . . 11
Section 3.3 Daily Reports . . . . . . . . . . . 11
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . 11
Section 4.1 Seller's Representations and
Warranties . . . . . . . . . . . . . 11
Section 4.2 Seller's Representations and
Warranties Regarding Receivables . . 14
Section 4.3 Representations and Warranties of
the Buyer . . . . . . . . . . . . . 16
ARTICLE V
COVENANTS OF SELLER AND BUYER . . . . . . . . . . . . . 18
Section 5.1 Seller Covenants . . . . . . . . . . 18
Section 5.2 Buyer Covenant Regarding Sale
Treatment . . . . . . . . . . . . . 20
ARTICLE VI
OPTIONAL REPURCHASE . . . . . . . . . . . . . . . . . . 20
Section 6.1 Breach of Warranty . . . . . . . . . 20
Section 6.2 Conveyance of Reassigned Receivables 21
ARTICLE VII
CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . 21
Section 7.1 Conditions to the Buyer's
Obligations Regarding Receivables . 22
Section 7.2 Conditions Precedent to the Seller's
Obligations . . . . . . . . . . . . 22
ARTICLE VIII
TERM AND TERMINATION . . . . . . . . . . . . . . . . . 24
Section 8.1 Term . . . . . . . . . . . . . . . . 24
Section 8.2 Effect of Termination . . . . . . . 24
ARTICLE IX
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . 25
Section 9.1 Amendment . . . . . . . . . . . . . 25
Section 9.2 Governing Law . . . . . . . . . . . 25
Section 9.3 Notices . . . . . . . . . . . . . . 25
Section 9.4 Severability of Provisions . . . . . 26
Section 9.5 Further Assurances . . . . . . . . . 26
Section 9.6 No Waiver; Cumulative Remedies . . . 26
Section 9.7 Counterparts . . . . . . . . . . . . 26
Section 9.9 Merger and Integration. . . . . . 26
Section 9.10 Headings . . . . . . . . . . . . . . 27
Section 9.11 Schedules and Exhibits . . . . . . . 27
Section 9.12 Protection of Right, Title and
Interest to Receivables . . . . . . 27
Section 9.13 Assignment . . . . . . . . . . . . . 28
BANK RECEIVABLES PURCHASE AGREEMENT
BANK RECEIVABLES PURCHASE AGREEMENT, dated as
of January 12, 1997 (the "Agreement"), by and between
FINGERHUT COMPANIES, INC., a Minnesota corporation
("Fingerhut" or the "Buyer"), and FINGERHUT NATIONAL
BANK, a national banking association ("FNB" or the
"Seller").
W I T N E S S E T H :
WHEREAS, the Seller and the Buyer previously
entered into that certain Bank Receivables Purchase
Agreement dated as of November 11, 1996 and wish to
terminate such agreement as of the date of this
Agreement;
WHEREAS, the Buyer desires to purchase from
time to time certain installment loan contract
receivables and/or certain open-end or revolving credit
receivables (including private label credit card
receivables) generated on or after January 12, 1997 (the
"Closing Date") by the Seller in the normal course of its
business;
WHEREAS, the Seller desires to sell and assign
from time to time such receivables to the Buyer upon the
terms and conditions hereinafter set forth;
WHEREAS, the Buyer is an Affiliate of the
Seller;
WHEREAS, the Seller understands that the Buyer
may re-sell Receivables (as defined herein) to one or
more special purpose entities, which may in turn transfer
Receivables to master trusts pursuant to Pooling and
Servicing Agreements (as defined herein);
NOW, THEREFORE, it is hereby agreed by and
between the Buyer and the Seller as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For all purposes of
this Agreement, except as otherwise expressly provided
herein or unless the context otherwise requires,
capitalized terms used herein shall have the following
meanings assigned to them:
"Account" shall mean, with respect to each
Revolving Receivable, each private label credit card
account now existing or hereafter established pursuant to
a Contract between the Seller and any Person.
"Affiliate" means, with respect to a particular
Person, any Person that, directly or indirectly, is in
control of, is controlled by, or is under common control
with, such Person.
"Back End Customer" means with respect to any
date of determination a customer who has purchased at
least one previous product from Fingerhut Corporation and
has either paid for or on such date of determination is
current on payments for the initial purchase or the
related installment loan.
"Business Day" shall mean any day other than a
Saturday, a Sunday or a day on which banking institutions
in Minneapolis, Minnesota, or Sioux Falls, South Dakota
are authorized or obligated by law or executive order to
be closed.
"Closed End Receivables" shall mean with
respect to any Obligor, any right to payment of amounts
owed by that Obligor under a closed-end credit card
installment loan Contract for the financing of purchases
of merchandise, financial service products or services.
"Closing Date" shall mean January 12, 1997.
"Collections" shall mean all payments received
by the Seller in respect of the Receivables in the form
of cash, checks or any other form of payment in
accordance with the Contract in effect from time to time
on any Receivables, other than insurance premiums.
"Contract" means an agreement between the
Seller or an Affiliate thereof and another Person for the
extension of closed-end or revolving credit pursuant to a
credit card, in the form of a written contract, invoice,
closed-end installment loan agreement or revolving credit
agreement.
"Credit Adjustment" shall have the meaning set
forth in Section 3.2(b) hereof.
"Credit and Collection Policy" means those
credit, collection, customer relations and service
policies and practices in effect on the date hereof
relating to the Contracts and the Receivables as such may
be modified from time to time.
"Date of Processing" shall mean with respect to
any transaction, the date on which such transaction is
settled according to the Seller's computer master file of
closed-end or revolving credit accounts.
"Eligible Account" shall mean, as of the
Closing Date (or, with respect to Accounts established
after the Closing Date, as of the date the Receivables
arising in such Accounts are first sold to the Buyer),
each consumer credit card account owned by the Seller:
(a) which is not at the time of sale sold or
pledged to any other party and which does not have
Receivables, which at the time of sale, are sold or
pledged to any other party (provided that Receivables
which were sold or pledged prior to the Closing Date, but
repurchased free of all Liens or where all Liens were
released prior to the sale hereunder, shall not be
disqualified under this clause (a)); and
(b) the Receivables in which the Seller has
not charged off (or required to be charged off) in its
customary and usual manner for charging off Receivables
in such Accounts as of the Closing Date (or, with respect
to Accounts, as of the date the Receivables of such
Accounts are sold to the Buyer) unless such Account is
subsequently reinstated.
"Eligible Receivable" shall mean each
Receivable that satisfies each of the following criteria:
(a) with respect to each Revolving Receivable, it arises
under an Eligible Account, (b) it is payable in United
States dollars, (c) it is not sold or pledged to any
other party, (d) it constitutes an "account" or a
"general intangible" as each are defined in Article 9 of
the UCC as then in effect in the Relevant UCC State, (e)
it is at the time of its purchase by the Buyer the legal,
valid, and binding obligation of, or is guaranteed by, a
person who is competent to enter into a contract and
incur debt, and is enforceable against such person in
accordance with its terms, (f) it and the related
Contract do not contravene in any material respect, and
the Seller with respect to such Receivable is not in
violation of, any material laws, rules, or regulations
applicable thereto (including, without limitation, laws,
rules and regulations relating to truth in lending,
usury, fair credit billing, fair credit reporting, equal
credit opportunity and fair debt collection practices)
that could reasonably be expected to have an adverse
impact on the amount of collections thereunder, (g) all
material consents, licenses, or authorizations of, or
registrations with, any governmental authority required
to be obtained or given in connection with the creation
of such Receivable or the execution, delivery, creation,
and performance of the related Contract have been duly
obtained or given and are in full force and effect as of
the date of the creation of such Receivables, and (h) at
the time of its sale to the Buyer, the Seller or the
Buyer will have good and marketable title free and clear
of all liens and security interests arising under or
through the Seller (other than Permitted Liens).
"Finance Charge Receivables" shall mean the sum
of (x) all amounts billed from time to time to the
Obligors on any Account or Receivable in respect of (i)
with respect to any Account under which Revolving
Receivables are generated, the meaning set forth in the
Contract applicable to such Account for finance charges
(due to periodic rate) or any similar term, (ii) with
respect to Closed End Receivables, the amount set forth
in the Contract under which any such Receivable is
generated as the finance charge, (iii) overlimit fees,
(iv) late charges, (v) returned check fees, (vi) annual
membership fees and annual service charges, if any, (vii)
transaction charges, and (viii) similar fees and charges,
excluding fees and charges for insurance and insurance
type products, plus (y) Recoveries.
"Governmental Authority" shall mean the United
States of America, any state or other political
subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Ineligible Receivable" shall have the meaning
set forth in Section 6.1 hereof.
"Lien" shall mean any lien, security interest
or other encumbrance.
"Obligor" shall mean a Person obligated to make
payments with respect to a Receivable pursuant to a
Contract.
"Outstanding Balance" shall mean, with respect
to any Closed End Receivable on any day, the aggregate
amount owed by the Obligor thereunder (net of returns and
adjustments) assuming that the related Obligor has
selected the installment credit terms with respect to
such Receivable.
"Permitted Lien" shall mean with respect to the
Receivables: Liens that secure the payment of taxes,
assessments and governmental charges or levies, if such
taxes are either (a) not delinquent or (b) being
contested in good faith by appropriate legal or
administrative proceedings and as to which adequate
reserves in accordance with generally accepted accounting
principles shall have been established.
"Person" shall mean any legal person, including
any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated
organization, governmental entity or other entity of
similar nature.
"Pooling and Servicing Agreement" shall mean,
with respect to Closed End Receivables of Back End
Customers, the Amended and Restated Pooling and Servicing
Agreement, dated as of January 12, 1997, and as may be
amended from time to time, among Fingerhut National Bank,
as servicer, Fingerhut Receivables, Inc., as transferor
and The Bank of New York (Delaware), as Trustee or any
replacement thereof and, with respect to any other
Receivables, shall mean any similar pooling and servicing
agreement covering such Receivables.
"Principal Receivables" shall mean amounts
shown on the Seller's records as amounts payable by
Obligors with respect to Eligible Receivables other than
such amounts that are Finance Charge Receivables and
shall include, without limitation, amounts payable for
purchases of goods or services or cash advances. A
Principal Receivable shall be deemed to have been created
at the end of the day on the Date of Processing of such
Receivable. In calculating the aggregate amount of
Principal Receivables on any day, the amount of Principal
Receivables shall be reduced by the aggregate amount of
credit balances in the Accounts on such day.
"Purchase Agreement" shall mean, with respect
to Closed End Receivables of Back End Customers, the
Purchase Agreement, dated as of January 12, 1997, as may
be amended from time to time, between the Buyer and
Fingerhut Receivables, Inc. and, with respect to any
other Receivables, shall mean any similar purchase
agreement covering such Receivables.
"Purchase Price" shall have the meaning set
forth in Section 3.1 hereof.
"Receivable" shall mean, with respect to any
Obligor, all of the indebtedness of such Obligor and any
right to payment of amounts owed by that Obligor under a
Contract or an Account, including the right to receive
payment of any interest or finance charges and other
obligations of such Obligor with respect thereto. Each
Receivable includes, without limitation, all rights of
the Seller under the applicable Contract.
"Recoveries" shall mean any amounts received by
the Seller with respect to Receivables that previously
were charged off as uncollectible in accordance with the
Servicer's customary and usual servicing procedures.
"Relevant UCC State" shall mean each
jurisdiction in which the filing of a UCC financing
statement is necessary to perfect the ownership interest
and security interest of the Buyer pursuant to this
Agreement.
"Requirements of Law" for any Person shall mean
the certificate of incorporation or articles of
association and by-laws or other organizational or
governing documents of such Person, and any material law,
treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which
such Person is subject.
"Revolving Receivables" shall mean with respect
to any Obligor, any right to payment of amounts owed by
that Obligor under a revolving credit card account with
respect to the sale of merchandise, financial service
products or services.
"Sale Papers" shall have the meaning set forth
in Section 4.1(c) hereof.
"Secured Obligations" shall have the meaning
set forth in Section 2.1(d) hereof.
"Seller's Discount" shall mean, for any day on
which Receivables are conveyed hereunder, the discount
used to determine the Seller's accounting basis in the
Receivables on such day.
"Termination Date" shall have the meaning set
forth in Section 8.1 hereof.
"Transferred Account" shall mean an Account
with respect to which a new credit card account number
has been issued by the Seller under circumstances
resulting from a lost or stolen credit card and not
requiring standard application and credit evaluation
procedures under the Credit and Collection Policy.
"UCC" shall mean the Uniform Commercial Code,
as amended from time to time, as in effect in the
applicable jurisdiction.
Section 1.2 Other Definitional Provisions.
The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement or any Sale
Paper shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; and Section,
Subsection, Schedule and Exhibit references contained in
this Agreement are references to Sections, Subsections,
Schedules and Exhibits in or to this Agreement unless
otherwise specified.
[END OF ARTICLE I]
ARTICLE II
PURCHASE, CONVEYANCE AND SERVICING
OF RECEIVABLES
Section 2.1 Sale. (a) In consideration for
the Purchase Price and upon the terms and subject to the
conditions set forth herein, the Seller does hereby sell,
assign, transfer, set-over, and otherwise convey to the
Buyer, and the Buyer does hereby purchase from the
Seller, on the terms and subject to the conditions
specifically set forth herein, all of the Seller's right,
title and interest in, to and under (i) the Receivables
now existing and hereafter created, including, without
limitation, all accounts, general intangibles and other
obligations of any Obligor with respect to the
Receivables, now or hereafter existing, whether or not
arising out of or in connection with the sale or lease of
goods or the rendering of services, (ii) all monies and
investments due or to become due with respect thereto
(including, without limitation, the right to any Finance
Charge Receivables, including any Recoveries)and (iii)
all proceeds of such Receivables; provided, however, that
with respect to Receivables coming into existence after
the date hereof such sale, assignment, transfer and
conveyance shall occur on the second Business Day (or
such earlier day as specified in writing by the Seller to
the Buyer) following the date of creation of such
Receivables. The foregoing sale, transfer, assignment,
set-over and conveyance does not constitute and is not
intended to result in a creation or an assumption by the
Buyer of any obligation of the Seller in connection with
the Receivables or any agreement or instrument relating
thereto, including, without limitation, any obligation to
any Obligors.
(b) In connection with the foregoing sale, the
Seller agrees to record and file, at the Buyer's expense,
a financing statement or statements with respect to the
Receivables and the other property described in Section
2.1(a) sold by the Seller hereunder meeting the
requirements of applicable state law in such manner and
in such jurisdictions as are necessary to perfect and
protect the interests of the Buyer created hereby under
the applicable UCC against all creditors of and
purchasers from the Seller, and to deliver a file-stamped
copy of such financing statements or other evidence of
such filings to the Buyer.
(c) In connection with the sale and conveyance
hereunder, the Seller agrees, at the Buyer's expense, on
or prior to the Closing Date and on each Business Day
thereafter on which Receivables are sold hereunder, to
indicate or cause to be indicated clearly and
unambiguously in its accounting records that such
Receivables and the other property described in clauses
(i), (ii) and (iii) of Section 2.1(a) have been sold to
the Buyer pursuant to this Agreement as of the Closing
Date or such Business Day as applicable.
(d) It is the express intent of the Seller and
the Buyer that the conveyance of the Receivables by the
Seller to the Buyer pursuant to this Agreement be
construed as a sale of such Receivables by the Seller to
the Buyer. It is, further, not the intention of the
Seller and the Buyer that such conveyance be deemed a
grant of a security interest in the Receivables by the
Seller to the Buyer to secure a debt or other obligation
of the Seller. However, in the event that,
notwithstanding the intent of the parties, the
Receivables are held to continue to be property of the
Seller, then (i) this Agreement also shall be deemed to
be and hereby is a security agreement within the meaning
of the UCC; and (ii) the conveyance by the Seller
provided for in this Agreement shall be deemed to be and
the Seller hereby grants to the Buyer a security interest
in and to all of the Seller's right, title and interest
in (w) all Receivables outstanding on the Closing Date
and thereafter created by the Seller and all rights (but
not the obligations) relating to such Receivables,
including, without limitation, all "accounts" or "general
intangibles" (each as defined in the applicable UCC) with
respect to the Receivables outstanding on the Closing
Date and thereafter created by the Seller, and all rights
(but not the obligations) relating thereto, (x) all
monies due or to become due with respect thereto and (y)
all proceeds of the foregoing to secure (1) the
obligations of the Seller and (2) a loan to the Seller in
the amount of the Purchase Price as set forth in this
Agreement (the "Secured Obligations"). The Seller and
the Buyer shall, to the extent consistent with this
Agreement, take such actions as may be necessary to
ensure that, if this Agreement were deemed to create a
security interest in the Receivables, such security
interest would be deemed to be a perfected security
interest of first priority in favor of the Buyer under
applicable law and will be maintained as such throughout
the term of this Agreement.
[END OF ARTICLE II]
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1 Purchase Price. The Purchase
Price for the Receivables and related property conveyed
to the Buyer under this Agreement shall be a dollar
amount equal to, for (a) Revolving Receivables sold on
any date, the product of (i) the aggregate amount of all
Principal Receivables sold as of such date, and (ii) one
minus the then applicable Seller's Discount, and (b)
Closed End Receivables sold on any date, the product of
(i) the aggregate Outstanding Balance of all such Closed
End Receivables as of such date, and (ii) one minus the
then applicable Seller's Discount.
Section 3.2 Payment of Purchase Price. (a)
The Purchase Price for Receivables shall be paid or
provided for on the Closing Date with respect to the
Receivables existing on the Closing Date and on each
Business Day thereafter on which Receivables are
transferred hereunder, as the case may be, by payment in
immediately available funds.
(b) The Purchase Price shall be adjusted on a
daily basis (the "Credit Adjustment") if the Seller
adjusts downward the amount of any Receivable because of
a rebate, refund, unauthorized charge or billing error to
an Obligor, because such Receivable was created in
respect of merchandise which was refused or returned by
an Obligor, or if the Seller otherwise adjusts downward
the amount of any Receivable without receiving
Collections therefor or without charging off such amount
as uncollectible.
Section 3.3 Daily Reports. On each Business
Day on which Receivables are sold hereunder, the Seller
shall deliver to the Buyer a Daily Report (the "Daily
Report") showing the aggregate Purchase Price of
Receivables to be sold on such date, the aggregate
amount, if any, owing to the Buyer pursuant to Section
6.1 hereof and the aggregate net amount of cash owing for
Receivables to be sold on such Business Day.
[END OF ARTICLE III]
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Seller's Representations and
Warranties. The Seller represents and warrants to the
Buyer as of the Closing Date, and as of each subsequent
date Receivables are sold to the Buyer hereunder, that:
(a) Organization and Good Standing. The
Seller is a national banking association organized and
validly existing in good standing under the laws of the
United States and has the corporate power and authority
and legal right to own its property and conduct its
business as such properties are presently owned and as
such business is presently conducted and to execute,
deliver and perform its obligations under this Agreement
and each other document or instrument to be delivered by
the Seller hereunder (collectively, the "Sale Papers").
(b) Due Qualification. The Seller is duly
qualified to do business and is in good standing (or is
exempt from such requirements), as a foreign corporation
in any state required in order to conduct its business,
and has obtained all necessary licenses and approvals
with respect to the Seller required under applicable law;
provided that no representation or warranty is made with
respect to any qualifications, licenses or approvals
which the Buyer would have to obtain to do business in
any state in which the Buyer seeks to enforce any
Receivable.
(c) Due Authorization. The execution and
delivery of the Sale Papers, and the consummation of the
transactions provided for herein and therein have been
duly authorized by the Seller by all necessary corporate
action on its part.
(d) Binding Obligation. Each of the Sale
Papers, and the consummation of the transactions provided
for therein, constitutes a legal, valid and binding
obligation of the Seller, enforceable in accordance with
its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereinafter in
effect, affecting the enforcement of creditors' rights in
general and as such enforceability may be limited by
general principles of equity (whether considered in a
proceeding at law or in equity).
(e) No Conflicts. The execution and delivery
of the Sale Papers and the performance of the
transactions contemplated thereby, do not (i) contravene
the Seller's charter or by-laws or (ii) violate any
material provision of law applicable to it or require any
filing (except for the filings under the UCC),
registration, consent or approval under, any law, rule,
regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having
applicability to the Seller, except for such filings,
registrations, consents or approvals as have already been
obtained and are in full force and effect.
(f) Taxes. Except as provided on Schedule 1,
the Seller has filed all material tax returns required to
be filed and has paid or made adequate provision for the
payment of all material taxes, assessments and other
governmental charges due from the Seller or is contesting
any such tax, assessment or other governmental charge in
good faith through appropriate proceedings.
(g) No Violation. The execution and delivery
of the Sale Papers, the performance of the transactions
contemplated by the Sale Papers and the fulfillment of
the terms thereof, will not violate any Requirements of
Law applicable to the Seller, will not violate, 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 default under (i) any Requirement of Law
applicable to the Seller, or (ii) any material indenture,
contract, agreement, mortgage, deed of trust or other
material instrument to which the Seller is a party or by
which it or its properties are bound.
(h) No Proceedings. There are no proceedings
or investigations pending or, to the best knowledge of
the Seller, threatened against the Seller before any
Governmental Authority (i) asserting the invalidity of
the Sale Papers, (ii) seeking to prevent the consummation
of any of the transactions contemplated thereby, (iii)
seeking any determination or ruling that would materially
and adversely affect the performance by the Seller of its
obligations thereunder or (iv) seeking any determination
or ruling that would materially and adversely affect the
validity or enforceability thereof.
(i) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Governmental Authority required in connection with the
execution and delivery of the Sale Papers, the
performance of the transactions contemplated by the Sale
Papers and the fulfillment of the terms hereof and
thereof, have been obtained.
(j) Bona Fide Receivables. Each Receivable is
or will be an account receivable arising out of the
performance by the Seller in accordance with the terms of
the Contract giving rise to such Receivable. The Seller
has no knowledge of any fact which should have led it to
expect at the time of the classification of any
Receivable as an Eligible Receivable that such Receivable
would not be paid in full when due, and each Receivable
classified as an Eligible Receivable by the Seller in any
document or report delivered under this Agreement
satisfies the requirements of eligibility contained in
the definition of Eligible Receivable set forth herein.
(k) Place of Business. The principal
executive offices of the Seller are in Sioux Falls, South
Dakota and the offices where the Seller keeps its records
concerning the Receivables and related Contracts are in
Sioux Falls, South Dakota, Hennepin County, Minnesota and
St. Cloud, Minnesota.
(l) Use of Proceeds. No proceeds of the sale
of any Receivable hereunder received by the Seller will
be used by the Seller to purchase or carry any margin
stock.
(m) Not an Investment Company. The Seller is
not an "investment company" within the meaning of the
Investment Company Act, or is exempt from all provisions
of such Act.
The representations and warranties set forth in
this Section 4.1 shall survive the sale of the
Receivables to the Buyer. The Seller hereby represents
and warrants to the Buyer, that the representations and
warranties of the Seller set forth in Section 4.1 are
true and correct as of such date. Upon discovery by the
Seller or the Buyer of a material breach of any of the
foregoing representations and warranties, the party
discovering such breach shall give prompt written notice
thereof to the other.
Section 4.2 Seller's Representations and
Warranties Regarding Receivables.
(a) Valid Sale, etc. The Seller (x) hereby
represents and warrants as of the Closing Date, with
respect to the Receivables created on or prior to, and
outstanding on, such date and (y) shall be deemed to
represent and warrant as of the date of the creation and
transfer to the Buyer of any Receivables with respect to
such Receivables, that:
(i) This Agreement constitutes the legal,
valid and binding obligation of the Seller,
enforceable against the Seller in accordance with
its terms, except (A) as such enforceability may be
limited by applicable bankruptcy, receivership,
insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect, affecting
the enforcement of creditors' rights in general, and
(B) as such enforceability may be limited by general
principles of equity (whether considered in a suit
at law or in equity).
(ii) The transfer of Receivables by the
Seller to the Buyer under this Agreement constitutes
a valid sale, transfer, assignment, set-over and
conveyance to the Buyer of all right, title and
interest of the Seller in and to the Receivables,
whether then existing or thereafter created and
arising in connection with the Accounts, and such
Receivables will be held by the Buyer free and clear
of any Lien of any Person claiming through or under
the Seller or any of its Affiliates except for
Permitted Liens. This Agreement constitutes a valid
sale, transfer, assignment, set-over and conveyance
to the Buyer of all right, title and interest of the
Seller in and to the Receivables purported to be
sold hereunder, whether then existing or thereafter
created and the proceeds thereof.
(iii) The Seller is not insolvent and
will not be rendered insolvent upon sale of the
Receivables to the Buyer.
(iv) The Seller is (or, with respect to
Receivables arising after the date hereof, will be)
the legal and beneficial owner of all right, title
and interest in and to each Receivable and each
Receivable has been or will be transferred to the
Buyer free and clear of any Lien other than
Permitted Liens.
(v) All consents, licenses, approvals or
authorizations of or registrations or declarations
with any Governmental Authority required in
connection with the transfer of such Receivables to
the Buyer have been obtained.
(vi) Each Account classified as an
"Eligible Account" by the Seller in any document or
report delivered hereunder will satisfy the
requirements contained in the definition of Eligible
Account as of the date of such document or report
and each Receivable classified as an "Eligible
Receivable" by the Seller in any document or report
delivered hereunder will satisfy the requirements
contained in the definition of Eligible Receivable
as of the time of such document or report.
(vii) Each Receivable then existing has
been conveyed to the Buyer free and clear of any
Lien of any Person claiming through or under the
Seller or any of its Affiliates (other than
Permitted Liens) and in compliance, in all material
respects, with all Requirements of Law applicable to
the Seller.
(b) Daily Representations and Warranties. On
each day on which any new Receivable is created or sold
by the Seller to the Buyer hereunder, the Seller shall be
deemed to represent and warrant to the Buyer that (A)
each Receivable purchased by the buyer on such day has
been conveyed to the Buyer in compliance, in all material
respects, with all Requirements of Law applicable to the
Seller and free and clear of any Lien of any Person
claiming through or under the Seller or any of its
Affiliates (other than Permitted Liens) and (B) 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 the Seller in
connection with the conveyance of such Receivable to the
Buyer have been duly obtained, effected or given and are
in full force and effect.
(c) Notice of Breach. The representations and
warranties set forth in this Section 4.2 shall survive
the sale, transfer and assignment of the respective
Receivables to the Buyer. Upon discovery by the Seller
or the Buyer of a breach of any of the representations
and warranties set forth in this Section 4.2, the party
discovering such breach shall give prompt written notice
thereof to the other. The Seller agrees to cooperate
with the Buyer in attempting to cure any such breach.
Section 4.3 Representations and Warranties of
the Buyer. The Buyer hereby represents and warrants and
agrees with, as of the date hereof and as of the Closing
Date, the Seller and shall be deemed to represent and
warrant as of the date of the creation of any Receivable
sold to the Buyer hereunder that:
(a) Organization and Good Standing. The Buyer
is a corporation duly organized and validly existing in
good standing under the laws of the State of Minnesota
and has the corporate power and authority and legal right
to own its property and conduct its business as such
properties are presently owned and such business is
presently conducted and to execute, deliver, and perform
its obligations under the Sale Papers.
(b) Due Qualification. The Buyer is duly
qualified to do business and is in good standing (or is
exempt from such requirements) as a foreign corporation
in any state required in order to conduct business and
has obtained all necessary licenses and approvals with
respect to the Buyer required under federal and Minnesota
law.
(c) Due Authorization. The execution and
delivery of the Sale Papers and the consummation of the
transactions provided for in the Sale Papers have been
duly authorized by the Buyer by all necessary corporate
action on its part.
(d) No Conflicts. The execution and delivery
of the Sale Papers and the performance of the
transactions contemplated thereby do not (i) contravene
the Buyer's certificate of incorporation or by-laws or
(ii) violate any material provision of law applicable to
it, or require any filing (except for the filings under
the UCC), registration, consent or approval under, any
law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having
applicability to the Buyer, except for such filings,
registrations, consents or approvals as have already been
obtained and are in full force and effect.
(e) No Violation. The execution and delivery
of the Sale Papers, the performance of the transactions
contemplated by the Sale Papers, and the fulfillment of
the terms of the Sale Papers will not violate any
Requirements of Law applicable to the Buyer, will not
violate, 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 default under any
Requirement of Law applicable to the Buyer, or any
material indenture, contract, agreement, mortgage, deed
of trust or other material instrument to which the Buyer
is a party or by which it or its properties are bound.
(f) No Proceedings. There are no proceedings
or investigations pending or, to the best knowledge of
the Buyer, threatened against the Buyer, before any
Governmental Authority (i) asserting the invalidity of
the Sale Papers, (ii) seeking to prevent the consummation
of any of the transactions contemplated by the Sale
Papers, (iii) seeking any determination or ruling that
would materially and adversely affect the performance by
the Buyer of its obligations thereunder or (iv) seeking
any determination or ruling that would materially and
adversely affect the validity or enforceability of the
Sale Papers.
(g) All Consents Required. All approvals,
authorizations, consents, orders, or other actions of any
Governmental Authority required in connection with the
execution and delivery of the Sale Papers, the
performance of the transactions contemplated by the Sale
Papers, and the fulfillment of the terms of the Sale
Papers have been obtained.
The representations and warranties set forth in
this Section 4.3 shall survive the sale of the
Receivables to the Buyer. The Buyer hereby represents
and warrants to the Seller that the representations and
warranties of the Buyer set forth in Section 4.3 are true
and correct as of such date. Upon discovery by the Buyer
or the Seller of a breach of any of the foregoing
representations and warranties, the party discovering
such breach shall give prompt written notice to the
other.
[END OF ARTICLE IV]
ARTICLE V
COVENANTS OF SELLER AND BUYER
Section 5.1 Seller Covenants. The Seller
hereby covenants that:
(a) Receivables to be Accounts or General
Intangibles. The Seller will take no action to cause any
Receivable to be evidenced by any instrument (as defined
in the UCC as in effect in the Relevant UCC State),
except in connection with the enforcement or collection
of a Receivable. Except in such circumstances, the
Seller will take no action to cause any Receivable to be
anything other than an "account" or a "general
intangible" (each as defined in the UCC as in effect in
the Relevant UCC State).
(b) Security Interests. Except for the
conveyances hereunder, the 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; the Seller will immediately notify
the Buyer of the existence of any Lien on any Receivable;
and the Seller shall defend the right, title and interest
of the Buyer in, to and under the Receivables, whether
now existing or hereafter created, against all claims of
third parties claiming through or under the Seller;
provided, however, that nothing in this subsection 5.1(b)
shall prevent or be deemed to prohibit the Seller from
suffering to exist upon any of the Receivables any
Permitted Lien.
(c) Credit and Collection Policy and
Contracts. The Seller shall comply with and perform its
obligations under the Contracts and the Accounts and the
Credit and Collection Policy except insofar as any
failure so to comply or perform would not materially and
adversely affect the rights of the Trust or the
Certificateholders hereunder or under the Certificates
(as each such term is defined in the Pooling and
Servicing Agreement). Subject to compliance with all
Requirements of Law, the Seller may change the terms and
provisions of the Contracts or the Credit and Collection
Policy in any respect (including the calculation of the
amount, or the timing, of charge-offs and the Finance
Charge Receivables and other fees to be assessed thereon)
(i) if it would not, in the reasonable belief of the
Seller, materially impair the collectibility of any
Receivable or cause, immediately or with the passage of
time, a Pay Out Event (as defined in the Pooling and
Servicing Agreement) to occur and (ii) if such change (A)
(if it owns a comparable segment of receivables) is made
applicable to the comparable segment of the receivables
owned by the Seller, if any, which have characteristics
the same as, or substantially similar to, the Receivables
that are the subject of such change and (B) (if it does
not own such a comparable segment of receivables) will
not be made with the intent to materially benefit the
Seller over the Buyer or to materially adversely affect
the Buyer, except as otherwise restricted by an
endorsement, sponsorship, or other agreement between the
Seller and an unrelated third party or by the terms of
the Contracts.
(d) Delivery of Collections. In the event
that the Seller receives Collections, the Seller agrees
to forward to the Buyer or its designee such Collections
as soon as practicable after the receipt thereof, but in
no event later than the second Business Day following the
Date of Processing thereof.
(e) Notice of Liens. The Seller shall notify
the Buyer promptly after becoming aware of any Lien on
any Receivable other than Permitted Liens.
(f) Separate Business. The Seller shall
maintain separate corporate records and books of account
from those of the Buyer. The Seller will not conduct its
business in the name of the Buyer so as not to mislead
others as to the identity of the entity with which those
others are concerned.
Section 5.2 Buyer Covenant Regarding Sale
Treatment. The Buyer agrees to treat this conveyance for
all purposes (including, without limitation, tax and
financial accounting purposes) as a sale on all relevant
books, records, tax returns, financial statements and
other applicable documents.
[END OF ARTICLE V]
ARTICLE VI
OPTIONAL REPURCHASE
Section 6.1 Breach of Warranty. In the event
of a breach with respect to a Receivable of any of the
representations and warranties set forth in Section
4.1(j) or subsections 4.2(a)(iii) through (vii) or
4.2(b), or in the event that a Receivable is not an
Eligible Receivable on the date of its transfer to the
Buyer as a result of the failure to satisfy the
conditions set forth in the definition of Eligible
Receivable, at the sole option of the Buyer and upon
written notice to the Seller, such Receivable shall be
designated an "Ineligible Receivable" and the Seller
shall pay to the Buyer an amount in cash equal to the
purchase price paid for any such Ineligible Receivable by
the Buyer to the Seller. Such payment must be made by
the close of business on the thirtieth Business Day
following the day such Receivable has been designated an
Ineligible Receivable; provided, however, that such
amount may be offset against any amounts due from the
Buyer to the Seller with respect to the Purchase Price
for Receivables sold to the Buyer on such day. The
obligation of the Seller set forth in this Section shall
constitute the sole remedy respecting any breach of the
representations and warranties set forth in the above-
referenced Sections or failure to meet the conditions set
forth in the definition of Eligible Receivable with
respect to such Receivable available to the Buyer.
Section 6.2 Conveyance of Reassigned
Receivables. Upon the request of the Seller, the Buyer
shall execute and deliver to the Seller a reconveyance
substantially in such form and upon such terms as shall
be acceptable to the Seller, pursuant to which the Buyer
evidences the conveyance to the Seller of all of the
Buyer's right, title, and interest in any Receivables
reconveyed to the Seller pursuant to Section 6.1. The
Buyer shall execute such other documents or instruments
of conveyance or take such other actions as the Seller
may reasonably require to effect any repurchase of
Receivables pursuant to this Article VI.
Section 6.3 Sales are Non-Recourse. Other than
the obligation to repurchase Receivables under the
limited circumstances set forth in Section 6.1 hereof,
the sales of Receivables under this Agreement shall be
without recourse to the Seller.
[END OF ARTICLE VI]
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions to the Buyer's
Obligations Regarding Receivables. The obligations of
the Buyer to purchase the Receivables on any Business Day
shall be subject to the satisfaction of the following
conditions:
(a) All representations and warranties of the
Seller contained in this Agreement shall be true and
correct on the Closing Date and on the day of creation of
any Receivable created thereafter with the same effect as
though such representations and warranties had been made
on such date;
(b) All information concerning the Receivables
provided to the Buyer shall be true and correct in all
material respects as of the Closing Date, in the case of
Receivables sold to the Buyer on the Closing Date, or the
applicable Date of Processing, in the case of Receivables
created after the Closing Date;
(c) At the Closing Date, the Seller shall have
substantially performed all other obligations required to
be performed by the provisions of this Agreement;
(d) With respect to Receivables sold to the
Buyer on the Closing Date, the Seller shall have filed
the financing statement(s) required to be filed pursuant
to Section 2.1(b); and
(e) 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 Buyer, and the Buyer shall have
received from the Seller copies of all documents
(including, without limitation, records of corporate
proceedings) relevant to the transactions herein
contemplated as the Buyer may reasonably have requested.
Section 7.2 Conditions Precedent to the
Seller's Obligations. The obligations of the Seller to
sell Receivables on any Business Day shall be subject to
the satisfaction of the following conditions:
(a) All representations and warranties of the
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;
(b) Payment or provision for payment of the
Purchase Price in accordance with the provisions of
Section 3.2 hereof shall have been made; and
(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 Seller, and the Seller shall
have received from the Buyer copies of all documents
(including, without limitation, records of corporate
proceedings) relevant to the transactions herein
contemplated as the Seller may reasonably have requested.
[END OF ARTICLE VII]
ARTICLE VIII
TERM AND 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 the
earlier of: (a) such date as may be agreed to in writing
by the Buyer and the Seller, or (b) the occurrence of any
of the following events: the Buyer or the 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, the petition
instituting same is not dismissed within 60 days after
its filing, or (v) become unable for any reason to
purchase or re-purchase Receivables in accordance with
the provisions of this Agreement or default in its
obligations hereunder, which default continues unremedied
for more than 30 days after written notice is delivered
to the defaulting party by the non-defaulting party (any
such date set forth in clause (a) or (b) hereof being a
"Termination Date"); provided, however, that the
termination of this Agreement pursuant to this Section
8.1 shall not discharge any Person from any obligations
incurred prior to such termination, including, without
limitation, any obligations to make any payments with
respect to Receivables sold prior to such termination.
Section 8.2 Effect of Termination. No
termination or rejection of or failure to assume the
executory obligations of this Agreement in the event of
the receivership of the Seller or bankruptcy of the Buyer
shall be deemed to impair or affect the obligations
pertaining to any executed sale or executed obligations,
including, without limitation, pre-termination breaches
of representations and warranties by the Seller or the
Buyer.
[END OF ARTICLE VIII]
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Amendment. This Agreement and any
other Sale Papers and the rights and obligations of the
parties hereunder may not be changed orally, but only by
an instrument in writing signed by the Buyer and the
Seller. The Seller shall provide prompt written notice
of any such amendment to the Rating Agencies.
Section 9.2 Governing Law. THIS AGREEMENT AND
THE OTHER SALE PAPERS SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF MINNESOTA, 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 the Seller, to:
Fingerhut National Bank
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000
(000)000-0000
(b) in the case of the Buyer, to:
Fingerhut Companies, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
(000) 000-0000
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 the Sale Papers 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 the Sale Papers and shall in no
way affect the validity or enforceability of the other
provisions of the Sale Papers.
Section 9.5 Further Assurances. The Buyer and
the Seller 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 the Sale
Papers, including, without limitation, 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 laws of
any applicable jurisdiction.
Section 9.6 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the
part of the Buyer or the Seller, any right, remedy, power
or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are
cumulative and not exhaustive of any rights, remedies,
powers and privileges provided by law.
Section 9.7 Counterparts. The Sale Papers may
each be executed in two or more counterparts including
telefax transmission thereof (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 9.8 Binding Effect; Third Party
Beneficiaries. The Sale Papers will inure to the benefit
of and be binding upon the parties hereto and their
respective successors and permitted assigns.
Section 9.9 Merger and Integration. Except as
specifically stated otherwise herein, the Sale 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 the Sale Papers. The
Sale Papers may not be modified, amended, waived or
supplemented except as provided herein.
Section 9.10 Headings. The headings herein
are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any
provision hereof.
Section 9.11 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.
Section 9.12 Protection of Right, Title and
Interest to Receivables.
(a) The Seller shall cause this Agreement, all
amendments hereto and/or all financing statements and
continuation statements and any other necessary documents
covering the Seller's and the Buyer's right, title and
interest to the Receivables to be promptly recorded,
registered and filed, and at all times to be kept
recorded, registered and filed, all in such manner and in
such places as may be required by law fully to preserve
and protect the right, title and interest of the Buyer
hereunder to the Receivables and proceeds thereof. The
Seller shall deliver to the Buyer file-stamped copies of,
or filing receipts for, any document recorded, registered
or filed as provided above, as soon as available
following such recording, registration or filing. The
Buyer shall cooperate fully with the Seller in connection
with the obligations set forth above and will execute any
and all documents reasonably required to fulfill the
intent of this subsection 9.12(a).
(b) Within 30 days after the Seller makes any
change in its name, identity or corporate structure which
would make any financing statement or continuation
statement filed in accordance with paragraph (a) above
materially misleading within the meaning of Section 9-
402(7) of the UCC as in effect in the Relevant UCC State,
the Seller shall give the Buyer written notice of any
such change and shall file such financing statements or
amendments as may be necessary to continue the perfection
of the Buyer's security interest in the Receivables and
the proceeds thereof.
(c) The Seller will give the Buyer prompt
written notice of any relocation of any office from which
it services Receivables or keeps records concerning the
Receivables or of its principal executive office and
whether, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any
amendment of any previously filed financing or
continuation statement or of any new financing statement
and shall file such financing statements or amendments as
may be necessary to continue the perfection of the
Buyer's security interest in the Receivables and the
proceeds thereof. The Seller will at all times maintain
each office from which it services Receivables and its
principal executive office within the United States of
America.
Section 9.13 Assignment. Notwithstanding
anything to the contrary contained herein, this Agreement
may not be assigned by the Buyer or the Seller except as
contemplated by this Section 9.13, any Purchase Agreement
and any Pooling and Servicing Agreement; provided,
however, that simultaneously with the execution and
delivery of this Agreement, the Buyer shall assign all of
its right, title and interest herein to the extent that
this Agreement relates to Closed End Receivables of Back
End Customers to Fingerhut Receivables, Inc. as provided
in Section 2.1 of the Purchase Agreement and that
Fingerhut Receivables, Inc. shall assign all of its
right, title and interest herein to the Trustee for the
benefit of the Investor Certificateholders of all Series
as provided in Section 2.1 of the Pooling and Servicing
Agreement (as each term is defined in the Pooling and
Servicing Agreement), to which the Seller hereby
expressly consents, and the Buyer may make similar
assignments pursuant to Purchase Agreements subsequently
entered into by the Buyer. The Seller agrees to perform
its obligations hereunder for the benefit of the Trust
(as defined in the Pooling and Servicing Agreement) and
that the Trustee may enforce the provisions of this
Agreement, exercise the rights of the Buyer and enforce
the obligations of the Seller hereunder without the
consent of the Buyer.
[END OF ARTICLE IX]
IN WITNESS WHEREOF, the Buyer and the Seller
each have caused this Agreement to be duly executed by
their respective officers as of the day and year first
above written.
FINGERHUT NATIONAL BANK
as Seller
By: /s/ Xxxxx X. Xxxxxx
________________________
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
FINGERHUT COMPANIES, INC.,
as Buyer
By: /s/ Xxxxxx X. Xxxxxxxxxx
________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Treasurer
EXHIBIT A
FORM OF DAILY REPORT
SCHEDULE 1
TAX RETURNS AND PAYMENTS
The Seller has filed all applicable Federal, state and
material local tax returns and has paid or caused to be
paid all associated taxes due and payable on such returns
or on any assessments received by them; except that the
Seller has not filed certain tax returns purported to be
required because the Seller believes the requirements are
invalid and unenforceable under the commerce clause of the
United States Constitution as interpreted by the Supreme
Court in National Bellas Xxxx v. Department of Revenue of
Illinois, 386 U.S. 753 (1967) and the supporting lines of
cases, including Quill Corp. v. North Dakota, 112 S. Ct.
1904 (1992). The following are the states in which the
Seller is currently collecting sales/use taxes:
California Ohio
Florida Pennsylvania
Illinois South Carolina
Iowa South Dakota
Minnesota Tennessee
New York
Notwithstanding the Supreme Court decisions, the following
states, to the best knowledge of the Seller, currently have
legislation in effect which purports to require certain
Subsidiaries of the Seller to collect sales or use taxes:
Alabama Texas
Arizona Utah
Arkansas Vermont
California Virginia
Colorado Washington
Connecticut West Virginia
Florida
Georgia
Idaho
Illinois
Iowa
Kansas
Kentucky
Louisiana
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Nebraska
Nevada
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Pennsylvania
Xxxxx Xxxxxx
Xxxxx Xxxxxxxx
Xxxxx Xxxxxx
Xxxxxxxxx
