Exhibit 10.38
RECEIVABLES PURCHASE AGREEMENT
between
FIRST CONSUMERS CREDIT CORPORATION,
Buyer,
and
FIRST CONSUMERS NATIONAL BANK,
RPA Seller,
Dated as of December 31, 2001
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS ................................................................ -1-
Section 1.1. Definitions ............................................. -1-
Section 1.2. Other Definitional Provisions ........................... -3-
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES ..................................... -3-
Section 2.1. Purchase ................................................ -3-
Section 2.2. Addition of Additional Accounts ......................... -5-
ARTICLE III
CONSIDERATION AND PAYMENT .................................................. -6-
Section 3.1. Purchase Price .......................................... -6-
Section 3.2. Payment of Purchase Price ............................... -6-
Section 3.3. Adjustments to Purchase Price ........................... -7-
Section 3.4. Settlement .............................................. -7-
ARTICLE IV
REPRESENTATIONS AND WARRANTIES ............................................. -7-
Section 4.1. RPA Seller's Representations and Warranties ............. -7-
Section 4.2. RPA Seller's Representations and Warranties
Regarding Additional Accounts ...........................-11-
Section 4.3. Representations and Warranties of Buyer .................-12-
Section 4.4. Other Matters ...........................................-13-
ARTICLE V
COVENANTS OF RPA SELLER AND BUYER ..........................................-13-
Section 5.1. RPA Seller Covenants ....................................-13-
Section 5.2. Buyer Covenants Regarding Nondisclosure; Inspection .....-18-
ARTICLE VI
REPURCHASE OBLIGATION ......................................................-18-
Section 6.1. Mandatory Repurchase ....................................-18-
Section 6.2. Optional Repurchases ....................................-20-
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Section 6.3. Conveyance of Repurchased Receivables ...................-20-
Section 6.4. Sole Remedy .............................................-21-
Section 6.5. Selection of Removed Accounts ...........................-21-
ARTICLE VII
CONDITIONS PRECEDENT .......................................................-21-
Section 7.1. Conditions to Buyer's Obligations Regarding
Initial Receivables .....................................-21-
Section 7.2. Conditions to Buyer's Obligations Regarding
Supplemental Conveyances ................................-22-
Section 7.3. Conditions Precedent to RPA Seller's Obligations ........-23-
ARTICLE VIII
TERM & TERMINATION .........................................................-23-
Section 8.1. Term ....................................................-23-
Section 8.2. Effect of Termination ...................................-24-
ARTICLE IX
MISCELLANEOUS PROVISIONS ...................................................-24-
Section 9.1. Amendment ...............................................-24-
Section 9.2. Governing Law ...........................................-25-
Section 9.3. Notices .................................................-25-
Section 9.4. Severability of Provisions ..............................-25-
Section 9.5. Assignment ..............................................-25-
Section 9.6. Acknowledgment and Agreement of RPA Seller ..............-25-
Section 9.7. Further Assurances ......................................-25-
Section 9.8. No Waiver; Cumulative Remedies ..........................-26-
Section 9.9. Counterparts ............................................-26-
Section 9.10. Binding Effect; Third-Party Beneficiaries ...............-26-
Section 9.11. Merger and Integration ..................................-26-
Section 9.12. Headings ................................................-26-
Section 9.13. Schedules and Exhibits ..................................-26-
SCHEDULE ONE Accounts
SCHEDULE TWO Offices; Location of Records
EXHIBIT A Form of Supplemental Conveyance
EXHIBIT B Form of Reconveyance
EXHIBIT C Form of Settlement Statement
EXHIBIT D Additional Representations, Warranties and Covenants
EXHIBIT E Form of Opinion of Counsel
EXHIBIT F Form of Subordinated Note
ii
RECEIVABLES PURCHASE AGREEMENT, dated as of December 31, 2001 (the
"RPA Closing Date") between FIRST CONSUMERS NATIONAL BANK, a national
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banking association ("RPA Seller"), and FIRST CONSUMERS CREDIT CORPORATION,
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a Delaware Corporation ("Buyer") (this "Agreement").
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W I T N E S S E T H:
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WHEREAS, Buyer desires to purchase from time to time certain
Receivables arising under certain MasterCard and VISA accounts of RPA
Seller; and
WHEREAS, RPA Seller desires 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 Receivables Trust in connection with
the issuance of certain Securities;
WHEREAS, on the FCMT Termination Date, the Receivables Trust will
grant to the Receivables Trustee a security interest in the Receivables
Trust's rights relating to the Receivables under this Agreement; and
WHEREAS, RPA Seller agrees that the covenants and agreements made by
RPA Seller herein shall also be for the benefit of the Receivables Trust,
the Receivables Trustee and all holders of the Securities;
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
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otherwise defined herein are defined (i) before the FCMT Termination Date
(as defined in the Indenture), in the Pooling and Servicing Agreement,
dated as of September 30, 1992, amended and restated as of February 1,
1999, and amended and restated a second time as of December 31, 2001, among
First Consumers Credit Corporation, FCNB and The Bank of New York (such
agreement, as amended from time to time, the "Pooling and Servicing
---------------------
Agreement"), and (ii) on and after the FCMT Termination Date, in Annex A to
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the Master Indenture, dated as of December 31, 2001, between First
Consumers Credit Card Master Note Trust and The Bank of New York (the
"Indenture").
---------
Additionally, the following terms have the following definitions:
"Existing Assets" means (a)(i) the Seller Interest (as defined in the
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Existing Pooling Agreement), (ii) all right, title and interest of RPA
Seller in, to and under the Receivables existing prior to the opening of
business on the RPA Closing Date and arising in connection with the
Accounts, all monies due or to become due with respect thereto (including
all Finance Charge Receivables), all Recoveries, Collections and other
proceeds thereof and Insurance Proceeds relating thereto, the rights to
receive certain amounts paid or payable as Interchange (if and to the
extent provided for in any Supplement to the Existing Pooling Agreement),
all rights to security for such Receivables (including without limitation
rights to bank accounts or certificates of deposit pledged as collateral),
the right to any Enhancement with respect to any Series existing prior to
the opening of business on the RPA Closing Date and all proceeds and
products of all of the foregoing, including any rights retained in the
Receivables transferred to the Trust under the Existing Pooling Agreement
and any rights under the equitable right of redemption (if any of the
foregoing terms under this clause (a)(ii) is defined in the Existing
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Pooling Agreement, they have the meanings given them therein for the
purpose of this clause (a)(ii)), (iii) to the extent not included under
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clause (a)(ii), all right, title and interest of RPA Seller (in its
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capacity as Seller (as defined in the Existing Pooling Agreement) but not
as Servicer (as defined in the Existing Pooling Agreement)) under the
Existing Pooling Agreement (including any Supplements executed in
connection with any Series of Investor Certificates), including rights to
any funds on deposit in any Series Account (as defined in the Existing
Pooling Agreement) maintained for the benefit of any Series or Class of
Investor Certificates, and (b)(i) the Seller Interest (as defined in the
Indenture) (ii) to the extent not included under clause (a)(ii), all right,
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title and interest of RPA Seller (in its capacity as Seller (as defined in
the Indenture) but not as Servicer (as defined in the Indenture)) under the
Indenture (including any Indenture Supplements executed in connection with
any Series of Notes) and the other Transaction Documents (as defined in the
Indenture), including rights to any funds on deposit in any Series Account
(as defined in the Indenture) maintained for the benefit of any Series or
Class of Notes.
"Existing Pooling Agreement" means the Pooling and Servicing Agreement
--------------------------
prior to its amendment and restatement on the RPA Closing Date.
"Receivables Trust" means (a) prior to the FCMT Termination Date,
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First Consumers Master Trust and (b) on and after the FCMT Termination
Date, the Issuer.
"Receivables Trustee" means (i) prior to the FCMT termination date,
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the Trustee, and (ii) after the FCMT termination date, the Indenture
Trustee.
"Scheduled Trust Termination Date" means December 31, 2050.
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"Securities" means all Series of Investor Certificates of any Series
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(as defined in the Pooling and Servicing Agreement) and all Series of Notes
issued by the Issuer pursuant to the Indenture and the applicable Indenture
Supplements (as defined in the Indenture).
"Securityholder" or "Holder" means the Person in whose name a
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Certificate is registered on the Certificate Register or such other Person
deemed to be a "Certificateholder" or "Holder" in the related Series
Supplement (all as defined in the Pooling and Servicing Agreement), and the
Person in whose name a Note is registered on the Note Register and, if
applicable, the holder of any Global Note, or Coupon, as the case may be,
or such other Person deemed to be a "Noteholder" or "Holder" in any related
Indenture Supplement (all as defined in the Indenture).
"Servicing Agreement" means (i) before the FCMT Termination Date, the
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Pooling and Servicing Agreement, and (ii) on and after the FCMT Termination
Date, the Transfer and Servicing Agreement.
Section 1.2. Other Definitional Provisions. All terms defined directly
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or by reference in this Agreement shall have the defined meanings when used
in any certificate or other document delivered pursuant hereto unless
otherwise defined therein. For purposes of this Agreement and all such
certificates and other documents, unless the context otherwise requires:
(a) accounting terms not otherwise defined in this Agreement, and
accounting terms partly defined in this Agreement to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles; (b) terms defined in Article 9 of the UCC
and not otherwise defined in this Agreement are used as defined in that
Article as in effect in the applicable jurisdiction; (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.
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ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.1. Purchase. (a) RPA Seller agrees to contribute, and does
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hereby contribute to Buyer, and Buyer agrees to accept, and does hereby
accept, from RPA Seller on the RPA Closing Date, all of the Existing
Assets. The contribution and sales of the Existing Assets from RPA Seller
to Buyer are subject in each case to any rights in the Existing Assets
transferred, assigned, set over or otherwise conveyed to the FCMT Trustee
pursuant to the Existing Pooling Agreement. It is understood and agreed
that the obligations of RPA Seller specified herein with respect to the
Receivables, including its repurchase obligations under Article VI of this
Agreement, shall apply to all Receivables, whether originated before, on or
after the RPA Closing Date. RPA Seller and Buyer hereby agree that each
existing Receivable sold by RPA Seller to First Consumers Master Trust
pursuant to the Existing Pooling Agreement before the RPA Closing Date
shall be deemed for all purposes (including the representations and
warranties in the second sentence of Section 4.1(l) and RPA Seller's
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repurchase obligations under Section 6.1) to have been sold by RPA Seller
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to Buyer on the date on which it was so sold to First Consumers Master
Trust.
RPA Seller acknowledges that all instruments (including certificates
of deposit) and bank accounts the security interest in which has been
transferred to Buyer hereby and which are maintained with RPA Seller or of
which RPA Seller has possession, shall be so maintained and held by RPA
Seller on behalf and for the benefit of Buyer, in accordance with the terms
of this Agreement.
Additionally, for purposes of perfecting Buyer's security interest in
bank accounts pledged to RPA Seller, which security interest RPA Seller has
transferred to Buyer hereunder, this Agreement constitutes and shall be
deemed (i) notice to RPA Seller by Buyer of Buyer's security interest in
such bank accounts, and (ii) RPA Seller's acknowledgment of and consent to
Buyer's notice and Buyer's security interest in such bank accounts.
(b) Subject to and upon the terms and conditions hereinafter set
forth, RPA Seller (i) hereby sells, transfers, conveys, and assigns to
Buyer, without recourse, all of RPA Seller's right, title, and interest in,
to, and under the Receivables existing at the opening of business on the
RPA Closing Date (excluding Receivables in respect of Defaulted Accounts),
and thereafter created in respect of each Account listed on Schedule One
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identified by account number and by Receivable balance as of the RPA
Closing Date and each Account automatically designated pursuant to Section
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2.2(c), together with all monies due or to become due with respect thereto
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(including all Finance Charge Receivables), all Collections, Recoveries
thereof and Insurance Proceeds relating thereto, the rights to receive
amounts paid or payable as
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Interchange with respect to such Accounts, all rights to security for such
Receivables (including rights to bank accounts or certificates of deposit
pledged as collateral) and proceeds of all the foregoing (the "Transferred
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Assets"), and (ii) subject to the provisions of Section 2.2, on each
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Addition Date RPA Seller shall sell, transfer, convey and assign to Buyer,
without recourse, all of 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 (excluding
those referred to in clause (i) above) effective on the Addition Date
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therefore, together with all monies due or to become due with respect
thereto (including all Finance Charge Receivables), all Collections,
Recoveries thereof and Insurance Proceeds relating thereto, the rights to
receive amounts paid or payable as Interchange with respect to such
Additional Accounts, all rights to security for such Receivables (including
rights to bank accounts or certificates of deposit pledged as collateral)
and proceeds of all of the foregoing (all of which, upon any such
conveyance, shall be included in the Transferred Assets).
(c) In connection with such sale and conveyance, RPA Seller shall, at
its own expense, on or prior to the RPA Closing 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 Receivables Trust
pursuant to the Servicing Agreement for the benefit of the Securityholders
and (ii) deliver or cause to be delivered to Buyer (or to the Receivables
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 RPA Closing Date.
(d) In connection with such sale and conveyance, including such sale
and conveyance made pursuant to Section 2.1(a), RPA Seller agrees (i) to
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record and file, at its own expense, any financing statement for the
purchase of accounts with respect to the Existing Assets and the
Transferred Assets, including 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
Existing Assets and the Transferred Assets from 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 confirmations of such filings) to Buyer (or to the
Receivables Trustee, if Buyer so directs) on or prior to the RPA Closing
Date.
Section 2.2. Addition of Additional Accounts. (a) If from time to
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time, Buyer becomes obligated to designate Additional Accounts pursuant to
Section 2.6(a) of the Servicing Agreement (or any other provision thereof
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calling for compliance with the procedures set forth in such Section
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2.6(a)), then Buyer shall give RPA Seller written notice thereof on or
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before the Notice Date prior to the
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Addition Date therefor and RPA Seller 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 to the
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limitations, if any, on Buyer's ability to add Additional Accounts under
Section 2.6(b) of the Servicing Agreement, from time to time Eligible
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Accounts may be designated to be included as Additional Accounts, upon the
mutual agreement of Buyer and RPA Seller. In either event, RPA Seller 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), RPA Seller (i) shall indicate or
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cause to be 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 Receivables Trust pursuant to the
Servicing Agreement, (ii) shall deliver to Buyer, the Receivables Trustee
and each Rating Agency an opinion of counsel as to the matters specified in
Exhibit E, and which shall be reasonably acceptable to the Rating Agencies,
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and (iii) 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 Receivables Trustee pursuant to the Servicing Agreement. RPA
Seller'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 Receivables Trust pursuant to Section 2.6(e) of
--------------
the Servicing Agreement, such Eligible Account shall, until notice from RPA
Seller or Buyer to the other party hereto to the contrary, automatically be
designated to be included as an Account (and the Transferred Assets arising
therein are hereby conveyed) effective as of the date specified in Section
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2.6(e) of the Servicing Agreement.
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(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), RPA Seller (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 included
Accounts have been sold to Buyer in accordance with this Agreement and
transferred by Buyer to the Receivables Trust pursuant to the Servicing
Agreement and (ii) shall deliver or cause to be delivered to Buyer a
computer file or microfiche list containing a true and
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complete list of all such included Accounts identified by account number
and by the Receivables balance and Principal Receivables balance as of the
end of such calendar month, or, if Buyer shall so direct, such computer
file or microfiche list shall be delivered to the Receivables Trustee
pursuant to the Servicing Agreement.
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1. Purchase Price. Except as provided in Section 3.2, the
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Purchase Price for all Transferred Assets conveyed to the Buyer under this
Agreement shall be a dollar amount equal to the total recorded unpaid
balance of the 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 the
-------------------------
Transferred Assets shall be paid or provided for on the RPA Closing 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 RPA Seller
may mutually agree from time to time: (i) by payment in cash in immediately
available funds to the extent that Buyer has funds available for this
purpose; (ii) by a borrowing by Buyer from RPA Seller evidenced by a
Subordinated Note (as defined in the Indenture) or with the proceeds of a
borrowing by Buyer from Spiegel, Inc. evidenced by a Subordinated Note; or
(iii) by the sale, transfer, and assignment from Buyer to RPA Seller of an
undivided participation in the Seller Interest, entitling RPA 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 Transferred
Assets not paid for in cash as provided in clause (i) above or by a note as
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provided in clause (ii) above bears to the Principal Receivables evidenced
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by the Seller Interest. In the absence of any agreement to the contrary,
any portion of the Purchase Price not paid in cash or through a borrowing
under a Subordinated Note on the RPA Closing Date, any Addition Date or
Settlement Date shall 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 unpaid portion of the Purchase Price
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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
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to RPA Seller shall be adjusted on a monthly basis to reflect any Credit
Adjustments during the prior month, except to the extent that RPA Seller
has made a payment to Buyer with respect to any such Credit Adjustment
pursuant to Section 5.1(o).
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Section 3.4. Settlement. On each Determination Date under the
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Servicing Agreement (herein, a "Settlement Date"), RPA Seller shall deliver
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or cause to be
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delivered to Buyer a Settlement Statement in substantially the form of
Exhibit C, showing the aggregate amount of Receivables conveyed by RPA
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Seller from the previous Settlement Date (or from the RPA Closing Date in
the case of the first Settlement Date) to such date, the amount of all
payments of the Purchase Price received by RPA Seller prior to such
Settlement Date in respect of such Receivables, any adjustment on account
of Credit Adjustments to be made pursuant to Section 3.3, and the
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settlements of the remaining Purchase Price for such Receivables to be made
as of such Settlement Date between Buyer and RPA Seller in accordance with
Section 3.2.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. RPA Seller's Representations and Warranties. RPA Seller
-------------------------------------------
hereby represents and warrants to, and agrees with, Buyer as of the RPA
Closing Date and the Closing Date for any Series of Securities (other than
the representations and warranties in the first sentence of Section 4.1(l)
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and the representations and warranties in Sections 4.1(r) and 4.1(s) which
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are made as of each day the corresponding representations of the Pooling
and Servicing Agreement or the Transfer and Servicing Agreement, as the
case may be, are made or deemed made) that:
(a) Organization, Good Standing, and Qualification. RPA Seller is a
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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. 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.
(b) Due Authorization. The execution and delivery of this Agreement,
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any Supplemental Conveyance, the Servicing Agreement, or any other document
or instrument delivered pursuant hereto or thereto (the "Conveyance
----------
Papers"), to the extent that 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 RPA Seller. This Agreement from the time of
its execution shall remain an official record of the RPA Seller.
(c) No Conflict. The execution and delivery of the Conveyance Papers,
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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
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breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time or both) a default under, any indenture,
contract, agreement, mortgage, deed of trust, or other instrument to which
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,
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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 RPA Seller.
(e) No Proceedings. RPA Seller hereby represents and warrants that
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there are no proceedings or investigations pending or, to the best
knowledge of RPA Seller, threatened against RPA Seller or 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 RPA Seller, would materially and
adversely affect the performance by RPA Seller or Buyer of its obligations
under the Conveyance Papers, (iv) seeking any determination or ruling that
would materially and adversely affect the validity or enforceability of the
Conveyance Papers, or (v) seeking to impose income taxes on the Receivables
Trust (other than as a wholly-owned subsidiary of the Buyer). RPA Seller
has disclosed all material information regarding the case of Xxxxxx X. Xxxx
and Xxxxxxx Xxxxxxxxx v. First Consumers National Bank and Spiegel, Inc. to
Buyer and Buyer retains all of its rights under this Agreement with respect
to such litigation.
(f) All Consents Required. All approvals, licenses, authorizations,
---------------------
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 RPA Seller, the performance by RPA Seller of the
transactions contemplated by the Conveyance Papers, and the fulfillment by
RPA Seller of the terms of the Conveyance Papers, have been obtained.
(g) Identification of Accounts and Receivables. As of the RPA Closing
------------------------------------------
Date, RPA Seller 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 Receivables Trust pursuant to
the Servicing Agreement for the benefit of Securityholders and (ii) has
delivered or caused to be delivered to Buyer (or to the Receivables
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 RPA Closing Date.
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(h) Existing Financing Statements. There is no financing statement or
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similar statement or instrument of registration naming 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
registered in any public office covering any interest of any kind in the
Accounts or Receivables, or intended so to be, and 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 any
financing statements or assignments to be filed in respect of and covering
any security or other interest of Buyer or the Receivables Trustee pursuant
to this Agreement or the Servicing Agreement.
(i) Filings. All filings and recordings required to perfect the title
-------
of Buyer to the Receivables purchased hereunder have been or will have been
accomplished prior to the RPA Closing Date and each Addition Date and are
in full force and effect, and 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 Receivables Trust. RPA Seller
will, at the reasonable request of Borrower, execute and file additional
financing statements reasonably satisfactory in form and substance to
Buyer.
(j) Binding Obligations. The Conveyance Papers to which RPA Seller is
-------------------
party constitute legal, valid and binding obligations of RPA Seller,
enforceable against 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. The representations and warranties set out in
----------------
Exhibit D are true and correct. Without limiting the generality of the
---------
foregoing, as of the RPA Closing Date, the Conveyance Papers 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
Transferred Assets, and such property will be owned free and clear of any
Lien of any Person claiming through or under RPA Seller and its Affiliates,
except for Liens permitted under Section 5.1(d).
-------------
(l) Eligibility of Receivables. RPA Seller hereby represents and
--------------------------
warrants as of each date the representations are made or deemed made in
Section 2.4(b) of the Pooling and Servicing Agreement and Section 2.4(b) of
------------- -------------
the Transfer and Servicing Agreement (other than the first sentences
thereof) that such representations are true and correct. RPA Seller hereby
represents and warrants as of the RPA Closing Date that (i) as of the RPA
Closing Date, Schedule One to this Agreement and the computer file or
------------
microfiche list delivered pursuant to Section 2.1(c) is an accurate
-------------
-10-
and complete listing in all material respects of all the Accounts as of the
RPA Closing 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 RPA Closing 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 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 required to be
obtained, effected or given by 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 RPA Seller to Buyer hereunder, 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 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 RPA Seller in connection with the conveyance of such
Receivable to the Receivables Trust 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 true and correct with
--------------- ---
respect to each Receivable transferred on such day as if made on such day.
(m) Eligible Accounts. As of the RPA Closing Date, each Account (other
-----------------
than Additional Accounts) is an Eligible Account.
(n) Selection Procedures. No selection procedures reasonably believed
--------------------
by RPA Seller to be materially adverse to the interests of Buyer or its
successors and assigns were utilized by RPA Seller in selecting the
Accounts.
(o) FDIC Insurance. RPA Seller's deposits are insured by the Federal
--------------
Deposit Insurance Corporation ("FDIC").
----
(p) Bulk Sales. The execution, delivery and performance of this
----------
Agreement do not require compliance with any "bulk sales" law by RPA
Seller.
(q) Solvency. The transactions under this Agreement do not and will
--------
not render RPA Seller insolvent, nor have such transactions been entered
into in contemplation of RPA Seller's insolvency.
-11-
(r) Pooling and Servicing Agreement. The representations made in
--------------------------------
Section 2.4(a) under the Pooling and Servicing Agreement (other than the
--------------
first sentence thereof) are true and correct on the dates made.
(s) Transfer and Servicing Agreement. The representations made in
--------------------------------
Section 2.4(a) under the Transfer and Servicing Agreement (other than the
--------------
first sentence thereof) are true and correct on the dates made.
Section 4.2. RPA Seller's Representations and Warranties Regarding
-----------------------------------------------------
Additional Accounts. RPA Seller hereby represents and warrants, and agrees
-------------------
with Buyer, as of each Addition Date, that:
(a) Reconfirmation of Representations and Warranties. All
------------------------------------------------
representations and warranties made by RPA Seller pursuant to Section 4.1
-----------
remain true and correct in all respects as of such Addition Date as if made
on such date.
(b) Identification of Accounts and Receivables. RPA Seller has, as of
------------------------------------------
the Addition Date with respect to Additional Accounts added pursuant
Section 2.2(a), 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) 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 Receivables Trust
pursuant to the Servicing Agreement for the benefit of the Securityholders
and (ii) delivered or caused to be delivered to Buyer (or to the
Receivables 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 the aggregate amount of the Receivables
and the aggregate amount of Principal Receivables in such Additional
Accounts, as of the Addition Date for Additional Accounts added pursuant to
Section 2.2(a) and as of such fifth Business Day of a calendar month with
--------------
respect to Additional Accounts added pursuant to Section 2.2(b) and any
--------------
such computer file or microfiche list is or will be an accurate 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 RPA Seller. No selection procedures reasonably
believed by RPA Seller to be materially adverse to the interests of Buyer
or its successors and
-12-
assigns were utilized by RPA Seller in selecting the Additional Accounts
from available Eligible Accounts.
(e) Insolvency. RPA Seller is not insolvent as of the Addition Date
----------
and will not be rendered insolvent by adding any such Additional Account to
any Cycle.
(f) Bankruptcy Proceeding. 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. The representations and warranties set out in
----------------
Exhibit D are true and correct. Without limiting the generality of the
---------
foregoing, as of each Addition Date, a valid sale, assignment and
conveyance to Buyer of all right, title, and interest of RPA Seller in, to,
and under the Transferred Assets, has been consummated and such property
will be held free and clear of any Lien of any Person claiming through or
under 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 RPA
---------------------------------------
Closing Date, and each Addition Date, Buyer hereby represents and warrants
to, and agrees with, RPA Seller 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.
(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,
-13-
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 Transferred Assets to Buyer, and
termination of the rights and obligations of the Buyer and RPA Seller under
this Agreement. Upon discovery by Buyer or 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 RPA Seller on account of
breach of any representation or warranty of Buyer set forth herein.
ARTICLE V
COVENANTS OF RPA SELLER AND BUYER
Section 5.1. RPA Seller Covenants. RPA Seller hereby covenants and
--------------------
agrees with Buyer as follows:
(a) Cardholder Agreements and Cardholder Guidelines. RPA Seller shall
-----------------------------------------------
comply with and perform its obligations under the Cardholder Agreements
relating
-14-
to the Accounts and the Cardholder Guidelines, except insofar as any
failure to so comply or conform would not materially and adversely affect
the rights of the Receivables Trust, the Receivables Trustee and
Securityholders under the Transaction Documents. In that regard, except as
aforesaid, and so long as such changes are made applicable to the
comparable segments of those MasterCard and VISA accounts owned and
serviced by RPA Seller which have characteristics the same as, or
substantially similar to, the Accounts pursuant to which the Receivables
were created (if any), RPA Seller shall be free to change the terms and
provisions of such Cardholder Agreements or the Cardholder Guidelines in
any respect (including the calculation of the amount, the timing, of
charge-offs). RPA Seller shall provide to each Rating Agency written notice
of any such change that (1) lowers the periodic finance charge rate used to
calculate Finance Charges on any Account or changes the minimum monthly
payment applicable to any Account; (2) changes any periodic finance charge
rate used to calculate Finance Charges on any Account from a floating rate
to a fixed rate or from a fixed rate to a floating rate; (3) reduces any
Cardholder Fees, Cash Advance Fees or other fees applicable to any Account
or (4) changes the calculation of the amount, or the timing, of charge
offs.
(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 Servicing Agreement and all Supplements thereto and as is deemed by RPA
Seller to be advisable for its MasterCard and VISA program based on a good
faith assessment by RPA Seller of the various factors impacting the use of
its MasterCard and VISA cards, RPA Seller 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,
RPA Seller's reasonable expectation of the Portfolio Yield in respect of
any Series as of such date would be less than the current Base Rate
applicable to such Series.
(c) Receivables Not to be Evidenced by Promissory Securities. RPA
--------------------------------------------------------
Seller will take no action to cause any Receivable to be evidenced by any
instrument.
(d) Security Interests. Except for the conveyances hereunder, (i) 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)
RPA Seller will immediately notify Buyer and the Receivables Trustee of the
existence of any Lien on any Receivable; and (iii) 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 RPA Seller;
provided, however, that nothing in this Section 5.1(d) shall prevent or be
-------- ------- --------------
deemed to prohibit RPA Seller from suffering to exist upon any of the
Accounts or Receivables any Liens for state, municipal or other local taxes
if such taxes shall not at the time be due and payable or if RPA Seller
shall concurrently be contesting the
-15-
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. RPA Seller's chief
---------------------------------------------
executive office and state of organization are identified on Schedule Two.
------------
RPA Seller will not relocate its chief executive office or state of
organization, unless 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, RPA Seller shall file
such financing statement or amendment as may be necessary with respect to
the transfer of accounts. Additionally, RPA Seller 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 Receivables Trust pursuant to the Servicing Agreement. RPA Seller
shall, prior to the sale or transfer to a third party of any receivable
owned by 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 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, RPA Seller shall file such
financing statements or amendments as may be necessary to perfect or
maintain the perfection of the transfer of the Receivables.
(g) Further Assurances. 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. 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 RPA Seller of its warranties and covenants contained in Section 4.1
-----------
(provided, however, with respect to the representations and warranties
-------- -------
-16-
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 RPA Seller contained in
Section 4.2, or any information certified in any Schedule delivered by RPA
-----------
Seller hereunder, being untrue in any material respect at any time. The
obligations of RPA Seller 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. 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. RPA Seller shall not convey, assign,
----------------------
exchange, or otherwise transfer the Accounts to any Person prior to
termination of this Agreement, and the Servicing Agreement.
(k) Non-Petition. 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.
(l) Merger; Consolidation. RPA Seller shall not consolidate with or
---------------------
merge into any other Person or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(i) the Person formed by such consolidation or into which RPA
Seller is merged or the Person which acquires by conveyance or
transfer the properties and assets of RPA Seller substantially as an
entirety shall be, if RPA Seller is not the surviving entity,
organized and existing under the laws of the United States of America
or any State or the District of Columbia, and shall 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 RPA Seller, as applicable hereunder, and
shall benefit from all the rights granted to RPA Seller, as applicable
hereunder. To the extent that any right, covenant or obligation of RPA
Seller, as applicable hereunder, is inapplicable to the successor
entity, such successor entity shall be subject to
-17-
such covenant or obligation, or benefit from such right, as would
apply to the extent practicable, to such successor entity;
(ii) RPA Seller 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 RPA Seller; and
(iii) RPA Seller shall have notified the Rating Agencies of such
actions in writing prior to completing such transaction.
(m) Receivables to be Accounts. RPA Seller will take no action to
--------------------------
cause any Receivable to be characterized as anything other than an
"account" (as defined in the UCC as in effect in the applicable
jurisdiction). Each Receivable shall be payable pursuant to a contract
which does not create a Lien on any goods purchased thereunder.
(n) Account Allocations.
-------------------
(i) In the event that RPA Seller is unable for any reason to
transfer Receivables to Buyer in accordance with the provisions of
this Agreement (including, without limitation, by reason of the
occurrence of an Insolvency Event) then, in any such event, RPA Seller
agrees to instruct the Servicer to allocate and pay in accordance with
the Servicing Agreement, after the date of such inability, payments
received in respect of the Accounts giving rise to such Receivables
first to the total amount of Principal Receivables from such Accounts
transferred to Buyer. The parties hereto agree that Finance Charge
Receivables, whenever created, with respect to Principal Receivables
which have been transferred to Buyer shall continue to be property of
Buyer or its assigns notwithstanding any cessation of the transfer of
additional Principal Receivables to Buyer and Collections with respect
thereto shall continue to be allocated and paid in accordance with the
Transaction Documents.
(ii) In the event that pursuant to Section 6.1(a), RPA Seller
--------------
accepts a retransfer of an Ineligible Receivable as a result of a
breach of the representations and warranties relating to such
Receivable, then, in any such event, RPA Seller agrees to instruct the
Servicer to allocate payments received in respect of the Account
giving rise to such Receivable first to the total amount of Principal
Receivables of the appropriate Obligor retained by
-18-
Buyer or its assigns and thereafter to the total amount owing by such
Obligor on any Ineligible Receivable retransferred to RPA Seller.
(o) Delivery of Collections. RPA Seller agrees to pay to the Servicer
-----------------------
(if the Servicer is not then FCNB) promptly (but in no event later than two
Business Days after receipt) all Collections received by RPA Seller in
respect of the Receivables.
(p) Credit Adjustments. If at any time Buyer is required to make a
------------------
deposit to the Excess Funding Account on account of a Credit Adjustment,
and Buyer notifies RPA Seller that Buyer does not have funds available to
make such deposit, then RPA Seller shall promptly provide the amount of the
required deposit to Buyer.
(q) Assignment. The obligations of RPA Seller hereunder shall not be
----------
assignable nor shall any Person succeed to the obligations of RPA Seller
hereunder except for mergers, consolidations, assumptions or transfers in
accordance with Section 5.1(l).
--------------
(r) Trust Agreement. Upon notice from the Buyer, FCNB agrees to
---------------
promptly pay Buyer amounts necessary for Buyer to make its payment
obligations in time pursuant to Article VII of the Trust Agreement.
-----------
Section 5.2. Buyer Covenants Regarding Nondisclosure; Inspection.
---------------------------------------------------
Buyer hereby covenants and agrees with RPA Seller (and agrees to cause the
Receivables 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 Receivables 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
Receivables Trustee's duties under the Servicing Agreement or in enforcing
the rights of the Securityholders and (ii) such disclosures as are required
upon appointment of a successor Servicer under the Servicing Agreement.
Buyer agrees (and shall cause the Receivables Trustee) to take such
measures as shall be reasonably requested by RPA Seller to protect and
maintain the security and confidentiality of such information, and in
connection therewith, shall allow RPA Seller to inspect the applicable
security and confidentiality arrangements from time to time in normal
business hours. Buyer shall (and shall cause the Receivables Trustee to)
give RPA Seller five days prior written notice of any disclosure pursuant
to this Section 5.2.
-----------
-19-
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.1. Mandatory Repurchase. (a) In the event of a breach of any
--------------------
representation and warranty set forth in Section 4.1(l) before the FCMT
--------------
Termination Date RPA Seller shall accept a retransfer of each Principal
Receivable to which such breach relates (an "Ineligible Receivable") on the
---------------------
date on which such Ineligible Receivable is retransferred to Buyer under
Section 2.4(d) of the Pooling and Servicing Agreement on the terms and
--------------
conditions set forth below. In the event that the exclusion of an
Ineligible Receivable from the calculation of the Seller Amount would cause
the Seller Amount to be less than the Minimum Seller Amount, RPA Seller
shall pay Buyer a sufficient amount in immediately available funds in time
to enable Buyer to make a deposit in the Collection Account in an amount
equal to the Shortfall Amount as required under Section 2.4(d) of the
--------------
Pooling and Servicing Agreement. Upon each retransfer to RPA Seller of such
Ineligible Receivable, the Buyer shall automatically and without further
action be deemed to transfer, assign and set-over to RPA Seller, without
recourse, representation or warranty, all the right, title and interest of
the Buyer in, to and under such Ineligible Receivable, all monies due or to
become due with respect thereto, all proceeds thereof and Insurance
Proceeds relating thereto. The Buyer shall execute such documents and
instruments of transfer and take such other actions as shall reasonably be
requested by RPA Seller to effect the transfer of such Ineligible
Receivable pursuant to this subsection. The obligation of RPA Seller to
accept retransfer of any Ineligible Receivable shall constitute the sole
remedy respecting any breach of the representations and warranties set
forth in Section 4.1(l)) with respect to such Receivable available to the
---------------
Buyer, Certificateholders or the Trustee on behalf of Certificateholders
(as defined in the Pooling and Servicing Agreement).
(b) In the event of a breach of any representation and warranty set
forth in Section 4.1(l) on and after the FCMT Termination Date, then RPA
--------------
Seller shall accept reassignment of all Receivables in the related Account
("Ineligible Receivables") on the terms and conditions set forth in this
----------------------
paragraph on the date on which such Ineligible Receivables are reassigned
to Buyer under Section 2.4(d) of the Transfer and Servicing Agreement. If
--------------
the exclusion of an Ineligible Receivable from the calculation of the
Seller Amount would cause the Seller Amount to be less than the Minimum
Seller Amount, then RPA Seller shall pay Buyer a sufficient amount in
immediately available funds in time to enable Buyer, on the date of
retransfer of such Ineligible Receivable, to make a deposit in the
Collection Account in an amount equal to the Shortfall Amount as required
under Section 2.4(d) of the Transfer and Servicing Agreement. The amounts
--------------
so deposited are to be treated for all purposes hereof as Collections on
such Ineligible Receivables.
-20-
Upon reassignment of any Ineligible Receivable, the Buyer shall
automatically and without further action be deemed to transfer, assign, set
over and otherwise convey to RPA Seller or its designee, without recourse,
representation or warranty, all the right, title and interest of the Buyer
in and to such Ineligible Receivable, all Recoveries related thereto, all
monies and amounts due or to become due and all proceeds thereof and such
reassigned Ineligible Receivable shall be treated by the Buyer as collected
in full as of the date on which it was transferred. The obligation of RPA
Seller to accept reassignment of any Ineligible Receivables conveyed to the
Buyer by RPA Seller, and to make payments to Buyer to enable Buyer to make
the deposits, if any, required to be made to the Collection Account as
provided in Section 2.4(d) of the Transfer and Servicing Agreement, shall
--------------
constitute the sole remedy respecting the event giving rise to such
obligation available to the Buyer. The Buyer shall execute such documents
and instruments of transfer or assignment and take such other actions as
shall reasonably be requested and provided by the RPA Seller to effect the
conveyance of such Ineligible Receivables pursuant to this Section 6.1(b),
--------------
but only upon receipt of an Officer's Certificate from RPA Seller that
states that all conditions set forth in Section 5.1 have been satisfied.
-----------
(c) In the event of a breach of any representation and warranty set
forth in Section 4.1(e), (j), (k) or (r) before the FCMT Termination Date,
------------- --- --- ---
RPA Seller shall be obligated to accept retransfer of all of the Principal
Receivables on the date on which the Receivables are retransferred to Buyer
under Section 2.4(e) of the Pooling and Servicing Agreement. RPA Seller
--------------
shall pay Buyer a sufficient amount in immediately available funds in time
to enable Buyer to deposit on the Transfer Date (as defined in the Pooling
and Servcing Agreement) (in next day funds) for the related Distribution
Date (as defined in the Pooling and Servcing Agreement) an amount equal to
the deposit amount as required under Section 2.4(e) of the Pooling and
Servcing Agreement on the terms and conditions set forth below. On the
Distribution Date following the Transfer Date on which such amount has been
deposited by Buyer in full into the Distribution Account, the Receivables
and all monies due or to become due with respect thereto and all proceeds
of the Receivables and Insurance Proceeds relating thereto shall be
transferred to RPA Seller, and the Buyer shall execute and deliver such
instruments of transfer, in each case without recourse, representation or
warranty, as shall be reasonably requested by RPA Seller to vest in RPA
Seller, or its designee or assignee, all right, title and interest of the
Buyer in, to and under the Receivables, all monies due or to become due
with respect thereto (including all Finance Charge Receivables) and all
proceeds thereof and Insurance Proceeds relating thereto. If RPA Seller is
obligated to accept a retransfer as provided above, the obligation of RPA
Seller to accept a retransfer of the Receivables pursuant to Section 6.1(c)
--------------
shall constitute the sole remedy respecting a breach of the representations
and warranties contained in Section 4.1(e) available to the Buyer.
--------------
-21-
(d) On and after the FCMT Termination Date, if any representation or
warranty of a RPA Seller set forth in Section 4.1(e), (j), (k) or (s) is
-------------- --- --- ---
not true and correct in any material respect, RPA Seller shall be obligated
to accept such reassignment on the date on which the Receivables are
reassigned to Buyer under Section 2.4(e) of the Transfer and Servicing
--------------
Agreement on the terms set forth in this paragraph. RPA Seller shall pay
Buyer a sufficient amount in immediately available funds in time to enable
Buyer to deposit in the Collection Account in immediately available funds
not later than 1:00 p.m., New York City time, on the Transfer Date for the
first Distribution Date following the Monthly Period in which the
reassignment obligation arises under Section 2.4(e) of the Transfer and
--------------
Servicing Agreement, in payment for such reassignment, an amount equal to
the deposit amount for the reassignment as required under Section 2.4(e) of
--------------
the Transfer and Servicing Agreement. If RPA Seller is obligated to accept
a reassignment of the Receivables as provided above, the obligation of RPA
Seller to accept such reassignment pursuant to this Section 6.1(d) and to
--------------
make payments to Buyer to enable Buyer to make the deposit required to be
made to the Collection Account as provided in Section 2.4(e) of the
Transfer and Servicing Agreement shall constitute the sole remedy
respecting an event of the type specified in the first sentence of this
Section 6.1(d) available to the Buyer. Upon reassignment of the Receivables
--------------
on such Distribution Date, the Buyer shall automatically and without
further action be deemed to sell, transfer, assign, set-over and otherwise
convey to the RPA Seller, without recourse, representation or warranty, all
the right, title and interest of the Buyer in and to the Receivables and
Recoveries allocable to the Buyer, and all monies and amounts due or to
become due with respect thereto and all proceeds thereof. The Buyer shall
execute such documents and instruments of transfer or assignment and take
such other actions as shall reasonably be requested by the RPA Seller to
effect the conveyance of such property pursuant to this Section.
Section 6.2. Optional Repurchases. (a) Buyer shall have the option to
--------------------
require RPA Seller to repurchase all of Buyer's rights, titles, and
interests in, to, and under all Receivables transferred by 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 Receivables Trust in compliance with Section 2.7 of
-----------
the Servicing Agreement, and (ii) if Buyer and both RPA Seller mutually
agree as to the designation of the Removed Accounts. 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 RPA Seller
written notice of its election to require RPA Seller 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 Servicing Agreement, an amount equal to the
-----------
total recorded unpaid balance of such repurchased Receivables (including
Principal Receivables and Finance Charge
-22-
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 may be made, at the option of the RPA Seller: (i) in immediately
available funds; (ii) as a reduction in 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 RPA Seller must make payment of a
-------- -------
sufficient portion of the Repurchase Price in immediately available funds
in time to enable Buyer to make any cash payment to the Receivables Trust
then required under the Servicing Agreement.
Section 6.3. Conveyance of Repurchased Receivables. On or prior to the
-------------------------------------
date that RPA Seller is required to repurchase Receivables under Section
-------
6.1, or on the date 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 RPA Seller a Reconveyance substantially in the
form and upon the terms of Exhibit B, pursuant to which Buyer conveys to
---------
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, Buyer shall
-----------
deliver to RPA Seller 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 RPA Seller in such
Removed Accounts as of the Repurchase Notice Date. Buyer shall (and shall
cause the Receivables Trustee to) execute such other documents or
instruments of conveyance or take such other actions as RPA Seller may
reasonably require to effect any repurchase of Receivables pursuant to this
Article VI.
----------
Section 6.4. 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, RPA Seller represents and warrants that no
selection procedures reasonably believed by RPA Seller to be materially
adverse to the interests of Buyer or the holders of the Securities were
utilized in selecting the Removed Accounts.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1. Conditions to Buyer's Obligations Regarding Initial
---------------------------------------------------
Receivables. The obligations of Buyer to purchase the Transferred Assets on
-----------
the RPA Closing Date shall be subject to the satisfaction of the following
conditions:
-23-
(a) All representations and warranties of RPA Seller contained in this
Agreement shall be true and correct on the RPA Closing 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 RPA Closing Date in all material respects;
(c) RPA Seller 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 RPA Closing Date, and RPA Seller shall have substantially performed
all other obligations required to be performed by the provisions of this
Agreement;
(d) 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 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) 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 RPA Seller copies of all documents (including records of corporate
proceedings) relevant to the transactions herein contemplated as Buyer may
reasonably have requested.
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 RPA Seller 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);
------
-24-
(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) RPA Seller 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 Receivables Trust pursuant to the Servicing Agreement for the
benefit of the Securityholders; (ii) RPA Seller shall have delivered or
caused to be delivered to Buyer (or to the Receivables 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) RPA Seller shall have substantially performed all
--------------
other obligations required to be performed by the provisions of this
Agreement;
(d) RPA Seller shall have executed and delivered a Supplemental
Conveyance in conformance with the requirement of Section 2.2; and
-----------
(e) 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 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 Seller's Obligations. The
------------------------------------------------
obligations of RPA Seller to sell the Transferred Assets on the RPA Closing
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;
(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 RPA Seller, and RPA Seller shall have
received from Buyer copies
-25-
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 Receivables Trust terminates; or (b) upon the occurrence of
any of the following events: Buyer or 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 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 Receivables Trust or Buyer, as applicable, of Principal Receivables, in
the case of RPA Seller's involuntary petition with no adverse effect to
either Buyer, the Receivables Trust or the Securityholders, and in the case
of Buyer's involuntary petition with no adverse effect to either the
Receivables Trust or the Securityholders, 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 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 RPA
Seller or Buyer. Without limiting the foregoing, prior to termination,
neither the failure of RPA Seller 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
-26-
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.
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 RPA
Seller, 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 RPA Seller 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 Receivables Trustee for the benefit
of the Securities, unless the Receivables 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 right or obligation of
Buyer or RPA Seller 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 RPA Seller, First Consumers National Bank,
0000 X.X. Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxx 00000, Attn: President, or (b) in
the case of Buyer, First Consumers Credit Corporation 000 Xxxx 0xx Xxxxxx,
Xxxxx 000X, Xxxxxxxxxx, Xxxxxxxx, 00000, 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
-27-
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 the assignments referred to in Section 9.6,
-----------
this Agreement and all other Conveyance Papers may not be assigned by the
parties hereto.
Section 9.6. Acknowledgment and Agreement of RPA Seller. By execution
------------------------------------------
below, RPA Seller expressly acknowledge and agree that all of Buyer's
rights under this Agreement relating to Transferred Assets purchased
pursuant to this Agreement shall be assigned by Buyer to the Receivables
Trust and, after the FCMT Termination Date, shall be collaterally assigned
by the Receivables Trust to the Indenture Trustee, in each case for the
benefit of the Securityholders, and RPA Seller consents to such
assignments.
Section 9.7. Further Assurances. Buyer and RPA 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 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 applicable 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 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 Receivables Trust, the Receivables Trustee and all
holders of the Securities shall be considered third-party beneficiaries of
this Agreement.
-28-
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.
-29-
IN WITNESS WHEREOF, Buyer and RPA Seller have caused this Agreement to
be duly executed by their respective officers as of the day and year first
written above.
FIRST CONSUMERS CREDIT
CORPORATION
Name:
---------------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer
FIRST CONSUMERS NATIONAL BANK
Name:
---------------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer
Signature page to
Receivables Purchase Agreement
-30-
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 RPA Closing Date: $
-------
Aggregate Principal Balance as of the RPA Closing Date: $
-------
SCHEDULE TWO
to
RECEIVABLES PURCHASE AGREEMENT
Buyer's Chief Executive Office:
000 Xxxx 0xx Xxxxxx
Xxxxx 000X
Xxxxxxxxxx, Xxxxxxxx 00000
State of organization: Delaware
RPA Seller's Chief Executive Office:
0000 X.X. Xxxxxx Xxxxx
Xxxxxxxxx Xxxxxx 00000
Organized as a national bank
Locations Of Books And Records:
0000 X.X. Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
0000 Xxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
EXHIBIT A
to
RECEIVABLES PURCHASE AGREEMENT
FORM OF SUPPLEMENTAL CONVEYANCE
-------------------------------
SUPPLEMENTAL CONVEYANCE No. OF RECEIVABLES IN ADDITIONAL ACCOUNTS
---
(the "Supplemental Conveyance"), dated as of , 200 , by and
------------------------ ------------- -
between FIRST CONSUMERS NATIONAL BANK, a national banking association ("RPA
Seller"), and FIRST CONSUMERS CREDIT CORPORATION, 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 Seller are parties to the Receivables Purchase
Agreement, dated as of December 31, 2001 ( the "Purchase Agreement");
-------- ---------
WHEREAS, pursuant to Section 2.2 of the Purchase Agreement, (i) under
------- ---
certain conditions, RPA Seller is required to sell Receivables in
Additional Accounts; or (ii) RPA Seller 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 Seller now wishes 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 Seller and Buyer hereby agree as follows:
1. Defined Terms. 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,
-------------
, 200 .
-------- -
"Notice Date" means, with respect to the Additional Accounts added
-----------
pursuant to Section 2.2 of the Purchase Agreement and designated hereby,
-----------
,
----------
A-1
200 (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), RPA Seller shall
-------------
have delivered or caused to be delivered to Buyer (or to the Receivables
Trustee, if Buyer so directs) a 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. 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, RPA Seller does hereby
-------------------
sell, transfer, convey and assign to Buyer, without recourse, on and after
the Addition Date, all of 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, RPA Seller agrees (i)
to record and file at its own expense, any financing statement for the
purchase of accounts, 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 RPA Seller to Buyer
and the transfer of such Receivables from Buyer to the Receivables Trust,
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
Receivables Trustee, if Buyer so directs) on or prior to the date of this
Supplemental Conveyance.
(c) In connection with such sale and conveyance, RPA Seller 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
A-2
in accordance with the Purchase Agreement and transferred by Buyer to the
Receivables Trust for the benefit of the Securityholders.
4. Acceptance by Buyer. Buyer hereby acknowledges its acceptance of
-------------------
all right, title and interest previously held by RPA Seller 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, RPA Seller delivered or caused to be delivered to
Buyer or to the Receivables Trustee the computer file or microfiche list
described in Section 2 of this Supplemental Conveyance.
---------
5. Representations and Warranties of RPA Seller. RPA Seller 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 RPA Seller,
enforceable against 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 RPA Seller and no selection procedures reasonably
believed by 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. 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) Valid Sale. This Supplemental Conveyance constitutes 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
A-3
all right, title and interest of 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.
(g) Reconfirmation of Representations and Warranties. All
------------------------------------------------
representations and warranties made by 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 RPA Seller, on or prior
---------
to the Addition Date, of the following conditions precedent:
(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) RPA Seller 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
Securityholders, (ii) RPA Seller shall have delivered or caused to be
delivered to Buyer (or to the Receivables 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, (iii) RPA
Seller shall have substantially performed all other obligations
required to be performed by the provisions of the Purchase Agreement
and this Supplemental Conveyance and (iv) RPA Seller shall have
delivered to Buyer a certificate of a Vice President or more senior
officer, certifying that (i) all requirements set forth in Section 2.6
-----------
of the Servicing Agreement for designating Additional Accounts and
conveying the Principal Receivables of such Accounts, whether now
existing or hereafter created, have been satisfied, and (ii) each of
the representations and warranties made by the RPA Seller in Section 5
is true and correct as of the Addition Date. The Buyer may
conclusively rely on such Officer's Certificate, shall have no duty
A-4
to make inquiries with regard to the matters set forth therein, and
shall incur no liability in so relying;
(iii) 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 RPA Seller 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 RPA Seller,
and RPA Seller shall have received from Buyer copies of all documents
(including records of corporate proceedings) relevant to the
transactions herein contemplated as RPA Seller may reasonably have
requested.
7. Additional Information. 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 all 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 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.
A-5
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.
11. Non-Petition. 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.
A-6
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.
FIRST CONSUMERS NATIONAL BANK
By:
--------------------------
Title:
FIRST CONSUMERS CREDIT
CORPORATION
By:
--------------------------
Title:
A-7
SCHEDULE 1
----------
TO SUPPLEMENTAL CONVEYANCE
ADDITIONAL ACCOUNTS
-------------------
EXHIBIT B
to
RECEIVABLES PURCHASE AGREEMENT
FORM OF RECONVEYANCE
--------------------
RECONVEYANCE No. OF RECEIVABLES (this "Reconveyance"), dated as of
------ ------------
, 200 , by and between FIRST CONSUMERS CREDIT CORPORATION, a
------------- --
Delaware corporation, ("Buyer") and FIRST CONSUMERS NATIONAL BANK, a national
-----
banking association ("RPA Seller"), pursuant to the Receivables Purchase
----------
Agreement referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Buyer and RPA Seller are parties to the Receivables Purchase
Agreement, dated as of December 31, 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) Buyer may designate from time to time certain Accounts for
repurchase;
WHEREAS, pursuant to Section 6 of the Purchase Agreement, Buyer 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, Buyer 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,
----
, 200 .
------------ --
2. Designation of Removed Accounts. Within three Business Days after the
-------------------------------
Repurchase Date, RPA Seller shall deliver or cause to be delivered to Buyer 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 as of the Repurchase Date. 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.
B-1
3. Conveyance of Receivables. (a) For value received, Buyer 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 Buyer 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 respect thereto
(including all Finance Charge Receivables), all proceeds thereof and Insurance
Proceeds relating thereto.
(b) In connection with such transfer, Buyer agrees to (and agrees to cause
Receivables 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, Buyer
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 Buyer. Buyer 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 Buyer, enforceable against Buyer 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 Notice 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 Notice Date;
(c) Compliance with Servicing Agreement. Buyer has effected a retransfer
-----------------------------------
from the Receivables Trust of the Receivables now existing or hereafter arising
under the Removed Accounts in compliance with the provisions of the Servicing
Agreement.
(d) Selection Procedures. In respect of Removed Accounts designated
--------------------
pursuant to Section 6.2 of the Purchase Agreement, Buyer and RPA Seller have
-----------
mutually agreed as to the designation of the Removed Accounts.
B-2
(e) Insolvency. As of the Repurchase Notice Date and as of the Repurchase
----------
Date, Buyer is not insolvent and the removal being made pursuant to this
Reconveyance is not being made in contemplation of the Seller's insolvency.
6. Conditions Precedent. (a) The amendment of the Purchase Agreement set
--------------------
forth in Section 7 is subject to the satisfaction by Buyer, on or prior to the
---------
Repurchase Date, of the following conditions precedent:
(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) Buyer 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) Buyer 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
10. Non-Petition. 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.
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.
FIRST CONSUMERS CREDIT
CORPORATION
By:
--------------------------
Title:
FIRST CONSUMERS NATIONAL BANK
By:
--------------------------
Title:
B-4
SCHEDULE 1
----------
TO RECONVEYANCE
REMOVED ACCOUNTS
----------------
EXHIBIT C
to
RECEIVABLES PURCHASE AGREEMENT
FORM OF SETTLEMENT STATEMENT
FIRST CONSUMERS CREDIT CORPORATION
RECEIVABLES PURCHASE AGREEMENT
Current Settlement Date: , 200
--------------- -
Subject Period: , 200
--------------- -
First Consumers National Bank ("FCNB") and First Consumers Credit
----
Corporation ("Buyer"), pursuant to the Receivables Purchase Agreement (the
-----
"Purchase Agreement") dated as of December 31, 2001, between FCNB 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 paid by
note during the Subject Period was equal to............ $ .
-----------
C-1
6. The portion of the amount shown in item 3 not paid
in cash or by note during the Subject Period (item
3 minus item 4 minus item 5) is equal to............... $ .
-----------
B. RECEIVABLES REPURCHASED BY FCNB AND REPURCHASE PRICE FOR SUBJECT PERIOD
7. 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............................................... $ .
-----------
8. The portion of the Repurchase Price for the FCNB
Repurchased Receivables paid in cash during the
Subject Period was equal to............................ $ .
-----------
9. 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..................................................... $ .
-----------
In witness whereof, the undersigned have duly executed and delivered
this Settlement Statement this day of 200 .
-------- ---
FIRST CONSUMERS CREDIT
CORPORATION
By:
--------------------------
Title:
FIRST CONSUMERS NATIONAL BANK
By:
--------------------------
Title:
C-2
EXHIBIT D
ADDITIONAL REPRESENTATIONS, WARRANTIES
AND COVENANTS
In addition to the representations, warranties and covenants contained
in the Receivables Purchase Agreement, RPA Seller hereby represents, warrants
and covenants to Buyer as follows:
(1) The Receivables Purchase Agreement creates 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 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 (2) below.
-------------
(2) Immediately prior to the conveyance of the Receivables pursuant to the
Receivables Purchase Agreement, RPA Seller owns and has good and marketable
title to the Receivables free and clear of any Lien, claim or encumbrance of any
Person; provided that nothing in this paragraph (2) 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.
D-1
EXHIBIT E
PROVISIONS TO BE INCLUDED IN OPINION OF COUNSEL TO BE
DELIVERED PURSUANT TO SUBSECTION 2.2(b) OF THE
RECEIVABLES PURCHASE AGREEMENT
------------------------------
The opinions set forth below may be subject to certain qualifications,
assumptions, limitations and exceptions taken or made in the opinion of RPA
Seller's counsel with respect to similar matters delivered on the RPA Closing
Date.
1. The Supplemental Conveyance has been duly authorized, executed and
delivered by RPA Seller and constitutes the legal, valid and binding agreement
of RPA Seller, enforceable against RPA Seller in accordance with its terms.
2. We have opined in a letter of even date that the Supplemental Conveyance
constitutes a valid assignment of the RPA Seller's right, title and interest in,
to and under the Receivables in the Additional Accounts and the related
Transferred Assets. [Such opinion letter shall be substantially similar to the
similar letter delivered on the RPA Closing Date.] Financing Statements having
been filed in the office of the Secretary of State of Oregon, and in Washington,
D.C., Buyer has acquired (based upon certificates of RPA Seller to the effect
that RPA Seller has not transferred any interest in the Receivables other than
to the Trustee or caused any lien to be imposed upon the Receivables) all
rights, title and interest of the RPA Seller in the Transferred Assets free and
clear of any Lien or interest of any Person except for Liens permitted under
subsection 5.1(d) of the Receivables Purchase Agreement.
3. No filings or other action, other than the filing of the financing
statement(s) referred to in such opinion (the "Financing Statements") with
respect to the Buyer's security interest in such Transferred Assets, in the
office of the Secretary of State of Oregon, and in Washington, D.C., are
necessary to perfect or continue the perfected status of the security or other
interest of the Buyer in the Transferred Assets designated by the Supplemental
Conveyance, and the proceeds thereof, against third parties, except that
appropriate continuation statements with respect to the Financing Statements be
filed at five-year intervals to continue the perfection of such security
interest.
4. The transfer of the Receivables in the Additional Accounts to the Buyer
would not constitute a fraudulent conveyance of RPA Seller; provided, that this
opinion numbered 4 need not be delivered if the short-term unsecured debt
obligations of RPA Seller are rated at the time of such transfer at least P-3 by
Xxxxx'x.
E-1
EXHIBIT F
FORM OF SUBORDINATED NOTE
-------------------------
E-2
