Exhibit 4.5
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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-
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Section 6.2. Optional Repurchases ..................................................... -20-
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
ii
EXHIBIT E Form of Opinion of Counsel
EXHIBIT F Form of Subordinated Note
iii
RECEIVABLES PURCHASE AGREEMENT, dated as of December 31, 2001 (the "RPA
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Closing Date") between FIRST CONSUMERS NATIONAL BANK, a national banking
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association ("RPA Seller"), and FIRST CONSUMERS CREDIT CORPORATION, a Delaware
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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 otherwise
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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
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Date, in Annex A to the Master Indenture, dated as of December 31, 2001, between
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First Consumers Credit Card Master Note Trust and The Bank of New York (the
"Indenture").
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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 Pooling Agreement,
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they have the meanings given them therein for the purpose of this clause
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(a)(ii)), (iii) 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
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
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prior to its amendment and restatement on the RPA Closing Date.
"Receivables Trust" means (a) prior to the FCMT Termination Date, First
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Consumers Master Trust and (b) on and after the FCMT Termination Date, the
Issuer.
"Receivables Trustee" means (i) prior to the FCMT termination date, the
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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 (as
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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 Certificate
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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 or
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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 hereby
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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 repurchase
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obligations under Section 6.1) to have been sold by RPA Seller to Buyer on the
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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 identified by account number
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and by Receivable balance as of the RPA Closing Date and each Account
automatically designated pursuant to Section 2.2(c), together with all monies
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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 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 Addition
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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 therefor,
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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 record and
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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
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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 time,
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Buyer becomes obligated to designate Additional Accounts pursuant to Section
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2.6(a)
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of the Servicing Agreement (or any other provision thereof calling for
compliance with the procedures set forth in such Section 2.6(a)), then Buyer
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shall give RPA Seller written notice thereof on or before the Notice Date prior
to the 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
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2.6(b) of the Servicing Agreement, from time to time Eligible Accounts may be
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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 cause to be
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indicated in its books and records and in the computer files of the Receivables
that the Receivables created in connection with such Additional Accounts have
been sold to Buyer in accordance with this Agreement and transferred by Buyer to
the 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
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to the Rating Agencies, 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
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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 2.6(e) of the Servicing
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Agreement.
(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
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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 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
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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)
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above or by a note as provided in clause (ii) above bears to the Principal
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Receivables evidenced by the Seller Interest. In the absence of any agreement to
the contrary, any portion of the Purchase Price not paid in cash 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
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amount equal to the unpaid portion of the Purchase Price payable on such date,
which participation interest shall be evidenced by the Settlement Statement as
provided in Section 3.4.
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Section 3.3. Adjustments to Purchase Price. The Purchase Price payable to
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RPA Seller shall be adjusted on a monthly basis to reflect any Credit
Adjustments
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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 Servicing
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Agreement (herein, a "Settlement Date"), RPA Seller shall deliver or cause to be
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delivered to Buyer a Settlement Statement in substantially the form of Exhibit
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C, showing the aggregate amount of Receivables conveyed by RPA 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 settlements of the remaining Purchase Price for such
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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
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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) and the
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representations and warranties in Sections 4.1(r) and 4.1(s) which are made as
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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, any
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Supplemental Conveyance, the Servicing Agreement, or any other document or
instrument delivered pursuant hereto or thereto (the "Conveyance Papers"), to
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the extent that RPA Seller is party thereto, and the 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
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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, the
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performance of the transactions contemplated by the Conveyance Papers, and the
fulfillment of the terms of the Conveyance Papers will not conflict with, result
in any breach of any of the 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, the
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performance of the transactions contemplated by the Conveyance Papers, and the
fulfillment of the terms of the Conveyance Papers will not conflict with or
violate any Requirements of Law applicable to RPA Seller.
(e) No Proceedings. RPA Seller hereby represents and warrants that there
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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,
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consents, orders, or other actions of any Person or of any Governmental
Authority required in connection with the execution and delivery of the
Conveyance Papers by 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,
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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
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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.
(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).
--------------
-10-
(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 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").
----
-11-
(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.
(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.
-12-
(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 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
-13-
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, 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.
-14-
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
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,
-15-
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 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,
-16-
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 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
-17-
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 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
-18-
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 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
-19-
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.
-----------
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
------
-20-
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.
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
-21-
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.
-------------
(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
-22-
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 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
-23-
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:
(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
-----------
-24-
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);
-------------
(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
-25-
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 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
-26-
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 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.
-27-
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 0/xx/ 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
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.
-28-
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.
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 0/xx/ 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_.
------
A-1
"Notice Date" means, with respect to the Additional Accounts added pursuant
-----------
to Section 2.2 of the Purchase Agreement and designated hereby,_____, 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
A-2
connection with the Additional Accounts designated hereby have been sold to
Buyer 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
-------
A-3
2.2(c) of the Purchase Agreement, confirmation of a valid sale, assignment, and
-----
conveyance to Buyer of all rights, title and assignment, and conveyance to Buyer
of all right, title and interest of 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
A-4
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 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: /s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer
FIRST CONSUMERS CREDIT CORPORATION
By: /s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer
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.
B-2
(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.
(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.
B-3
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.
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
