EXHIBIT 10.18
SECOND AMENDMENT TO BUSINESS ACCOUNT OPERATING AGREEMENT
This Second Amendment to Business Account Operating Agreement, dated as
of November 30, 2001 (the "Amendment"), between Nordstrom, Inc., a Washington
corporation ("Nordstrom") and Nordstrom Credit, Inc., a Colorado corporation
("Credit"), amends and supplements that certain Business Account Operating
Agreement, dated as of February 1, 1997 as amended by that certain First
Amendment to Business Account Operating Agreement between Nordstrom and Credit
dated as of October 1, 2001 (the "Agreement"). Capitalized terms used herein but
not defined herein shall have the meanings ascribed to such terms in the
Agreement.
Nordstrom and Credit wish to amend the Agreement, as set forth in this
Amendment.
Therefore, in consideration of the mutual covenants and conditions
contained herein, the parties hereby amend and supplement the Agreement as
follows:
1. Section 2.01(g) is amended in its entirety to state as follows:
"(g) The parties hereto intend that the conveyance of
Nordstrom's right, title and interest in and to the Receivables shall
constitute an absolute sale, conveying good title free and clear of
any Liens, claims, encumbrances or rights of others (other than Liens
relating to consignments of product sold in certain Nordstrom retail
locations ("Consignments") which Liens against Receivables are
incidental to Nordstrom's sale of such products) from Nordstrom to
Credit. It is the intention of the parties hereto that the
arrangements with respect to the Receivables shall constitute a
purchase and sale of such Receivables and not a loan. In the event,
however, that it were to be determined that the transactions
evidenced hereby constitute a loan and not a purchase and sale, it is
the intention of the parties hereto that this Agreement shall
constitute a security agreement under applicable law, and that
Nordstrom shall be deemed to have granted and does hereby grant to
Credit a security interest, in all of Nordstrom's right, title and
interest, whether owned on the Closing Date or thereafter acquired,
in, to and under the Receivables and all money, accounts, payment
intangibles, chattel paper, instruments, documents, goods, investment
property, deposit accounts, certificates of deposit, letters of
credit and advices of credit consisting of, arising from or related
to the Receivables and all proceeds (including "proceeds" as defined
in the Uniform Commercial Code (the "UCC") thereof to secure the
obligations of Nordstrom hereunder."
2. Section 2.01(h) is amended in its entirety to state as follows:
"(h) Nordstrom makes the following representations and
warranties to Credit. The representations and warranties speak as of
the date of this Amendment and as of each subsequent date Receivables
are transferred. In the
event a sale of the Receivables is permitted in accordance with
Section 2.01(h) above, such representations and warranties shall
survive the sale, transfer and assignment of the Receivables to
Nordstrom Private Label Credit Card Master Note Trust (the "Trust"),
the pledge thereof to Xxxxx Fargo Bank Minnesota, N.A., as Indenture
Trustee (the "Indenture Trustee") and the termination of this
Agreement and shall not be waived by any party hereto unless the
Rating Agency Condition (as defined in the Indenture, dated a of
October 1, 2001 (the "Indenture") between the Trust and the Indenture
Trustee) is satisfied.
(i) This Agreement creates a valid and
continuing security interest (as defined in the applicable
UCC) in the Receivables in favor of Credit, which security
interest is prior to all other Liens other than the Liens
associated with the Consignments and/or of the Indenture,
and is enforceable as such as against creditors of and
purchasers from Nordstrom.
(ii) The Receivables constitute "accounts"
within the meaning of the applicable UCC.
(iii) Nordstrom owns and has good and
marketable title to the Receivables free and clear of any
Lien (other than the Liens relating to the Consignments),
claim or encumbrance of any Person.
(iv) Nordstrom has caused the filing of all
appropriate financing statements in the proper filing
office in the appropriate jurisdictions under applicable
law in order to perfect the security interest in the
Receivables granted to Credit hereunder.
(v) Other than the security interest granted to
Credit pursuant to this Agreement or with respect to the
Consignments, Nordstrom has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any
of the Receivables. Nordstrom has not authorized the
filing of and is not aware of any financing statements
against Nordstrom that include a description of collateral
covering the Receivables other than the Liens relating to
the Consignments and any financing statement relating to
the security interest granted to Credit hereunder or that
has been terminated. Nordstrom is not aware of any
judgment or tax lien filings against Nordstrom."
3. Except as specifically amended hereby, the original terms and
conditions of the Agreement (as amended by the First Amendment to Business
Account Operating Agreement) are unchanged and in full force and effect.
4. This Amendment shall be governed and construed in accordance with
the laws of the State of Colorado.
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IN WITNESS WHEREOF, the parties have executed this Amendment
effective as of the date first written above.
NORDSTROM, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
NORDSTROM CREDIT, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Assistant Treasurer
Acknowledged and Agreed
NORDSTROM fsb
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
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