EXHIBIT 10.21
EXECUTION COPY
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RECEIVABLES PURCHASE AGREEMENT
between
NORDSTROM CREDIT, INC.,
as Seller,
and
NORDSTROM PRIVATE LABEL RECEIVABLES LLC,
as Purchaser
Dated as of October 1, 2001
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions................................................ 2
Section 1.02. Other Definitional Provisions.............................. 5
ARTICLE TWO
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase................................................... 7
Section 2.02. Additional Accounts........................................ 8
Section 2.03. Delivery of Documents...................................... 9
Section 2.04. Representations and Warranties as to the Security Interest
of the Purchaser in the Receivables........................ 10
ARTICLE THREE
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price............................................. 11
Section 3.02. Adjustments to Purchase Price.............................. 11
ARTICLE FOUR
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Seller............... 12
Section 4.02. Representations and Warranties as to the Agreement and
the Receivables............................................ 13
Section 4.03. Representations and Warranties of the Purchaser............ 15
ARTICLE FIVE
COVENANTS
Section 5.01. Covenants of the Seller.................................... 17
Section 5.02. Covenants of the Seller with Respect to Purchase
Agreements................................................. 18
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ARTICLE SIX
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables..................... 20
Section 6.02. Reassignment............................................... 20
ARTICLE SEVEN
CONDITIONS PRECEDENT
Section 7.01. Conditions to the Purchaser's Obligations Regarding Initial
Receivables................................................ 22
Section 7.02. Conditions Precedent to the Seller's Obligations........... 22
ARTICLE EIGHT
TERM AND PURCHASE TERMINATION
Section 8.01. Term....................................................... 24
Section 8.02. Purchase Termination....................................... 24
ARTICLE NINE
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment.................................................. 25
Section 9.02. Governing Law.............................................. 25
Section 9.03. Notices.................................................... 25
Section 9.04. Severability of Provisions................................. 25
Section 9.05. Merger, Consolidation of, or Assignment of Obligations of
Seller..................................................... 26
Section 9.06. Acknowledgement and Agreement of the Seller................ 27
Section 9.07. Further Assurances......................................... 27
Section 9.08. No Waiver; Cumulative Remedies............................. 27
Section 9.09. Counterparts............................................... 28
Section 9.10. Third-Party Beneficiaries.................................. 28
Section 9.11. Merger and Integration..................................... 28
Section 9.12. Effect of Headings and Table of Contents................... 28
Section 9.13. Schedules and Exhibits..................................... 28
Section 9.14. Survival of Representations and Warranties................. 28
Section 9.15. Nonpetition Covenant....................................... 28
ii
RECEIVABLES PURCHASE AGREEMENT
This Receivables Purchase Agreement, dated as of October 1, 2001, is
between Nordstrom Credit, Inc., a Colorado corporation (the "Seller"), and
Nordstrom Private Label Receivables LLC, a Delaware limited liability company
(the "Purchaser").
WHEREAS, in the regular course of its business, the Seller has purchased
certain receivables (the "Transferred Receivables") arising under certain credit
card accounts of Nordstrom fsb (the "Bank");
WHEREAS, the Purchaser desires to purchase, from time to time, the
Transferred Receivables sold to the Seller by the Bank;
WHEREAS, the Purchaser may in the future desire to purchase, from time to
time, certain receivables from the Seller; and
WHEREAS, the Seller desires to sell and assign, from time to time,
certain Transferred Receivables to the Purchaser upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual terms and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Agreement, the following
words and phrases shall have the following meanings:
"Account" has the meaning set forth in the Transfer and Servicing
Agreement.
"Account Owner" has the meaning set forth in the Transfer and Servicing
Agreement.
"Addition Cut-Off Date" has the meaning set forth in the Transfer and
Servicing Agreement.
"Addition Date" has the meaning set forth in the Transfer and Servicing
Agreement.
"Addition Notice Date" has the meaning specified in Section 2.02(a).
"Additional Account" has the meaning set forth in the Transfer and
Servicing Agreement.
"Adverse Effect" has the meaning set forth in the Transfer and Servicing
Agreement.
"Agreement" means this Receivables Purchase Agreement, as amended or
supplemented from time to time.
"Bank" means Nordstrom fsb, a federal savings bank, and its successors.
"Bankruptcy Code" means Title 11 of the United States Code, as amended.
"Business Account Operating Agreement" means the operating agreement,
dated as of February 1, 1997, between Nordstrom, Inc. and Nordstrom Credit,
Inc., as amended by the First Amendment to Business Account Operating Agreement
for Nordstrom Proprietary Accounts and Receivables, dated as of October 1, 2001,
in each case between the Nordstrom, Inc. and Nordstrom Credit, Inc., as amended
and supplemented from time to time.
"Closing Date" means November 2, 2001.
"Collection Account" has the meaning set forth in the Indenture.
"Conveyance" has the meaning specified in Section 2.01(a).
"Conveyance Papers" has the meaning specified in Section 4.01(c).
"Credit Adjustment" means, with respect to the transfer of Receivables on
any Addition Date pursuant to this Agreement, an amount of equal to (i) the
product of (A) the amount of the reduction in the principal balance of the
related Receivables described in Section 3.02 and (B) the Purchase Price for
Principal Receivables payable on the related Distribution Date divided
by (ii) the aggregate of the Principal Receivables transferred to the Purchaser
on such Addition Date.
"Credit Card Agreement" has the meaning set forth in the Transfer and
Servicing Agreement.
"Credit Card Guidelines" has the meaning set forth in the Transfer and
Servicing Agreement.
"Date of Processing" has the meaning set forth in the Transfer and
Servicing Agreement.
"Debtor Relief Laws" means (i) the Bankruptcy Code of the United States
of America and (ii) all other applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization,
suspension of payments, readjustment of debt, marshalling of assets or similar
debtor relief laws of the United States, any state or any foreign country from
time to time in effect affecting the rights of creditors generally.
"Document Delivery Date" has the meaning set forth in Section 2.03.
"Eligible Receivable" has the meaning set forth in the Transfer and
Servicing Agreement, except that the word "Seller" shall be substituted for each
occurrence of the word "Transferor", the word "Purchaser" shall be substituted
for each occurrence of the word "Trust" and all references to the Notes shall be
ignored.
"Event of Default" has the meaning set forth in the Indenture.
"Finance Charge Receivables" has the meaning set forth in the Transfer
and Servicing Agreement.
"Governmental Authority" has the meaning set forth in the Transfer and
Servicing Agreement.
"Indenture" means the master indenture, dated as of October 1, 2001,
between the Trust and Xxxxx Fargo Bank West, National Association, as Indenture
Trustee, as amended or supplemented from time to time, including as supplemented
by Indenture Supplements applicable to any Series that may be issued from time
to time.
"Indenture Supplement" means the indenture supplement pursuant to which a
Series is issued.
"Indenture Trustee" means Xxxxx Fargo Bank West, National Association, as
trustee under the Indenture, and its successors.
"Ineligible Receivables" has the meaning set forth in the Transfer and
Servicing Agreement.
"Initial Account" has the meaning set forth in the Transfer and Servicing
Agreement.
"Initial Cut-Off Date" means the close of business on September 30, 2001.
"Insolvency Event" has the meaning set forth in the Transfer and
Servicing Agreement.
"Lien" has the meaning set forth in the Transfer and Servicing Agreement.
"Monthly Period" has the meaning set forth in the Indenture.
"Noteholder" has the meaning set forth in the Transfer and Servicing
Agreement.
"Obligor" has the meaning set forth in the Transfer and Servicing
Agreement.
"Operating Agreement" means the operating agreement for Nordstrom
proprietary accounts and receivables, dated August 31, 1991, between the Bank
and Nordstrom Credit, Inc., as amended by the First Amendment to Operating
Agreement for Nordstrom Proprietary Accounts and Receivables, dated as of March
1, 2000, and the Second Amendment to Operating Agreement for Nordstrom
Proprietary Accounts and Receivables, dated as of October 1, 2001 (as amended,
the "Operating Agreement"), in each case between the Bank and NCI, as amended or
supplemented from time to time.
"Owner Trustee" means Wilmington Trust Company, as trustee under the
Trust Agreement, and its successors.
"Periodic Rate Finance Charges" has the meaning set forth in the Credit
Card Agreement applicable to each Account for finance charges (due to periodic
rate) or any similar term.
"Principal Receivables" has the meaning set forth in the Transfer and
Servicing Agreement.
"Purchase Agreements" means the Operating Agreement, Business Account
Operating Agreement and any receivables purchase agreement, entered into between
the Seller and an Account Owner in the future, if any.
"Purchase Price" means, with respect to (i) the Transferred Receivables
transferred to the Purchaser on the Closing Date, an amount equal $636,000,000,
which amount includes $299,029,500 from the net cash proceeds from the private
placement by Purchaser of the Class A Notes and $336,970,500 from the capital
contribution from the Seller to the Purchaser made pursuant to Section 3.03, and
(ii) Transferred Receivables transferred to the Purchaser after the Closing
Date, an amount equal to 100% of the aggregate balance of Principal Receivables
in the related Accounts as of the Addition Cut-Off Date or an amount determined
to be the fair market value of such Transferred Receivables and the related
Purchased Assets.
"Purchased Assets" has the meaning set forth in Section 2.01.
"Purchaser" means Nordstrom Private Label Receivables LLC, in its
capacity as purchaser of the Receivables under this Agreement, and its
successors.
"Rating Agency" has the meaning set forth in the Indenture.
"Rating Agency Condition" has the meaning set forth in the Indenture.
"Receivables" has the meaning set forth in the Transfer and Servicing
Agreement.
"Removed Accounts" has the meaning set forth in the Transfer and
Servicing Agreement.
"Requirements of Law" has the meaning set forth in the Transfer and
Servicing Agreement.
"Securities" means any one of the Notes (as such term is defined in the
Indenture) or the Certificates (as such term is defined in the Trust Agreement).
"Seller" means Nordstrom Credit, Inc., in its capacity as seller of the
Receivables under this Agreement, and its successors.
"Supplemental Accounts" has the meaning set forth the Transfer and
Servicing Agreement.
"Supplemental Conveyance" has the meaning set forth in Section 2.03.
"Tax Opinion" has the meaning set forth in the Indenture.
"Transfer Date" has the meaning set forth in the Indenture.
"Transfer and Servicing Agreement" means the transfer and servicing
agreement, dated as of October 1, 2001, among the Bank, the Purchaser and the
Trust, as amended or supplemented from time to time.
"Transferred Receivable" means each Receivable transferred to the
Purchaser pursuant to Section 2.01 and for which the related Account is
identified in the computer file or microfiche list delivered to the Purchaser by
the Seller pursuant to Section 2.01.
"Trust" means the Nordstrom Private Label Credit Card Master Note Trust,
and its successors.
"Trust Agreement" means the trust agreement, dated as of October 1, 2001,
between the Purchaser, as Transferor, and the Owner Trustee, as amended or
supplemented from time to time.
Section 1.02. Other Definitional Provisions.
(a) Except as otherwise specified herein or as the context may otherwise
require, for all purposes of this Agreement, capitalized terms used herein that
are not otherwise defined shall have the meanings ascribed thereto in the
Transfer and Servicing Agreement, the Trust Agreement or the Indenture, as the
case may be.
(b) For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, (i) terms used herein
include, as appropriate, all genders and the plural as well as the singular,
(ii) references to words such as "herein", "hereof" and the like shall refer to
this Agreement as a whole and not to any particular part, article or section
within this Agreement, (iii) references to a section such as "Section 1.01", an
article such as "Article One" and the like shall refer to the applicable Section
or Article of this Agreement, as the case may be, (iv) the term "include" and
all variations thereof shall mean "include without limitation", (v) the term
"or" shall include "and/or" and (vi) the term "proceeds" has the meaning set
forth in the applicable UCC.
(c) All determinations of the principal or finance charge balance of
Receivables, and of any collections thereof, shall be made in accordance with
the Transfer and Servicing Agreement and the Indenture.
ARTICLE TWO
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase.
(a) The Seller hereby sells, transfers, assigns, sets over and otherwise
conveys to the Purchaser (collectively, the "Conveyance"), without recourse
except as provided herein, (i) all its right, title and interest in, to and
under the Transferred Receivables existing on the Initial Cut-Off Date, in the
case of Transferred Receivables arising in the Initial Accounts, and on each
Addition Cut-Off Date, in the case of Transferred Receivables arising in the
Additional Accounts, and in each case thereafter created from time to time until
the termination of this Agreement pursuant to Article Eight, (ii) all Recoveries
with respect to such Transferred Receivables, (iii) all monies due or to become
due and all amounts received or receivable with respect thereto (including
proceeds of the reassignment of Transferred Receivables by the Seller pursuant
to Sections 6.01 (b) and 6.02) and (iv) all proceeds thereof (collectively, the
"Purchased Assets"). The Seller does hereby further transfer, assign, set over
and otherwise convey to the Purchaser all of its right, title and interest in
and under the Purchase Agreements.
(b) In connection with such Conveyance, the Seller agrees (i) to record
and file, at its own expense, any financing statements (and continuation
statements with respect to such financing statements when applicable) with
respect to the Transferred Receivables existing as of the Initial Cut-Off Date
and thereafter created in the Initial Accounts, and existing as of the Addition
Cut-Off Date and thereafter created in the Additional Accounts, meeting the
requirements of applicable state law in such manner and in such jurisdictions as
are necessary to perfect the first priority nature of the Purchaser's interest
in the Transferred Receivables, and maintain perfection of, the Conveyance of
such Purchased Assets from the Seller to the Purchaser, (ii) that such financing
statements shall name the Seller, as seller, and the Purchaser, as purchaser, of
the Transferred Receivables and (iii) to deliver a file-stamped copy of such
financing statements or other evidence of such filings to the Purchaser as soon
as is practicable after filing.
(c) In connection with such Conveyance, the Seller further agrees that it
will, at its own expense, (i) on or prior to (A) the Closing Date, in the case
of Initial Accounts, (B) the applicable Addition Date, in the case of Additional
Accounts, and (C) the applicable Removal Date, in the case of Removed Accounts,
indicate in its computer files that, in the case of the Initial Accounts or the
Additional Accounts, Transferred Receivables created in connection with such
Accounts have been conveyed to the Purchaser in accordance with this Agreement
and have been conveyed by the Purchaser to the Trust pursuant to the Transfer
and Servicing Agreement and have been pledged by the Trust to the Indenture
Trustee pursuant to the Indenture for the benefit of the Noteholders by
indicating in such computer files the transfer of the Transferred Receivables to
the Purchaser, or in the case of a Removed Account related to Transferred
Receivables, that such Receivables have been reassigned and (ii) on or prior to
(A) the Closing Date, in the case of the Initial Accounts, (B) the applicable
Addition Date, in the case of designation of Supplemental Accounts and (C) the
applicable Removal Date, in the case of Removed Accounts, and (iii) to deliver
to the Purchaser a computer file or microfiche list containing a true and
complete list of all such Accounts specifying for each such Account, as of
the Initial Cut-Off Date, in the case of the Initial Accounts, the applicable
Addition Cut-Off Date, in the case of Supplemental Accounts and the applicable
Removal Date, in the case of Removed Accounts, (1) its account number, (2) the
aggregate amount outstanding in such Account and (3) the aggregate amount of
Principal Receivables in such Account. Each such computer file or microfiche
list, as supplemented from time to time to reflect Additional Accounts or
Removed Accounts, shall be marked as Schedule 1 to this Agreement, shall be
delivered to the Purchaser and is hereby incorporated into and made a part of
this Agreement. The Seller further agrees not to alter the computer code
referenced in clause (i) of this paragraph with respect to any Account during
the term of this Agreement unless and until such Account becomes a Removed
Account.
(d) The parties hereto intend that the conveyance of the Seller's right,
title and interest in and to the Purchased Assets shall constitute an absolute
sale, conveying good title free and clear of any liens, claims, encumbrances or
rights of others from the Seller to the Purchaser. It is the intention of the
parties hereto that the arrangements with respect to the Purchased Assets shall
constitute a purchase and sale of such Purchased Assets 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 the Seller shall be deemed to have granted and does
hereby grant to the Purchaser a first priority perfected security interest, in
all of the Seller's right, title and interest, whether owned on the Initial
Cut-Off Date or thereafter acquired, in, to and under the Purchased Assets 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
Purchased Assets and all proceeds thereof to secure the obligations of the
Seller hereunder.
Section 2.02. Additional Accounts.
(a) If, from time to time, the Purchaser becomes obligated to designate
Supplemental Accounts pursuant to Section 2.09(a)(i) of the Transfer and
Servicing Agreement, then the Purchaser may, at its option, give the Seller
written notice thereof on or before the tenth Business Day (the "Addition Notice
Date") prior to the Addition Date therefor, and upon receipt of such notice the
Seller shall on or before the Addition Date, designate sufficient Eligible
Accounts to be included as Supplemental Accounts so that after the inclusion
thereof the Purchaser will be in compliance with the requirements of Section
2.09(a)(i) of the Transfer and Servicing Agreement. Additionally, subject to
Sections 2.09(b) and (c) of the Transfer and Servicing Agreement and Section
2.02(b), from time to time Eligible Accounts may be designated to be included as
Supplemental Accounts, upon the mutual agreement of the Purchaser and the
Seller. In either event, the Seller shall have sole responsibility for selecting
such Supplemental Accounts.
(b) On the Addition Date with respect to any designation by the Seller of
Eligible Accounts to be Supplemental Accounts pursuant to Section 2.02(a), the
Purchaser shall purchase the Seller's right, title and interest in, to and under
the Receivables in such Supplemental Accounts (and such Receivables shall be
deemed to be Transferred Receivables) and the related Purchased Assets, subject
to the satisfaction of the following conditions on such Addition Date:
(i) all such Supplemental Accounts shall be Eligible
Accounts;
(ii) the Seller shall have delivered to the Purchaser
copies of UCC-1 financing statements covering such Supplemental Accounts,
if necessary to perfect the Purchaser's interest in the Receivables
arising therein;
(iii) to the extent required of the Purchaser by Section
2.09(c) of the Transfer and Servicing Agreement, the Seller shall have
transferred to the Servicer for deposit in the Collection Account all
Collections with respect to such Supplemental Accounts since the Addition
Cut-Off Date;
(iv) as of each of the Addition Cut-Off Date and the
Addition Date, no Insolvency Event with respect to the Seller shall have
occurred nor shall the transfer of the Receivables arising in the
Supplemental Accounts to the Purchaser have been made in contemplation of
the occurrence thereof;
(v) the Rating Agency Condition shall have been satisfied
with respect to such Addition;
(vi) the Seller shall have delivered to the Purchaser an
Officer's Certificate, dated the Addition Date, confirming, to the extent
applicable, the items set forth in clauses (i) through (v) above; and
(vii) the transfer of the Transferred Receivables arising
in the Supplemental Accounts to the Purchaser will not result in an
Adverse Effect and, in the case of such Supplemental Accounts, the Seller
shall have delivered to the Purchaser an Officer's Certificate, dated the
related Addition Date, stating that the Seller reasonably believes that
the transfer of the Receivables arising in such Supplemental Accounts to
the Purchaser will not have an Adverse Effect.
(c) In addition to designating Additional Accounts pursuant to clause (a)
above, the Seller may, subject to the satisfaction by the Purchaser of the
conditions relating to the designation by the Purchaser of Accounts to the Trust
set forth in Section 2.09(a)(iii) of the Transfer and Servicing Agreement,
automatically convey newly originated Eligible Accounts to the Purchaser upon
their establishment.
Section 2.03. Delivery of Documents. In the case of the designation of
Supplemental Accounts, the Seller shall deliver to the Purchaser (i) the
computer file or microfiche list required to be delivered pursuant to Section
2.01(c) with respect to such Supplemental Accounts on the date such file or list
is required to be delivered pursuant to Section 2.01(c) (the "Document Delivery
Date") and (ii) a duly executed, written assignment (including an acceptance by
the Purchaser), substantially in the form of Exhibit A (the "Supplemental
Conveyance"), on the Document Delivery Date.
Section 2.04. Representations and Warranties as to the Security Interest
of the Purchaser in the Receivables. The Seller makes the following
representations and warranties to the Purchaser. The representations and
warranties speak as of the execution and delivery of this Agreement and as of
each Transfer Date. Such representations and warranties shall survive the sale,
transfer and assignment of the Receivables to the Transferor and the Trust, the
pledge thereof to the Indenture Trustee and the termination of this Agreement
and shall not be waived by any party hereto unless the Rating Agency Condition
is satisfied.
(a) This Agreement creates a valid and continuing security
interest (as defined in the applicable UCC) in the Transferred
Receivables in favor of the Purchaser, which security interest is prior
to all other Liens other than the Lien of each of the Indenture and the
Trust, and is enforceable as such as against creditors of and purchasers
from the Seller.
(b) The Transferred Receivables constitute "accounts" within the
meaning of the applicable UCC.
(c) The Seller owns and has good and marketable title to the
Transferred Receivables free and clear of any Lien, claim or encumbrance
of any Person.
(d) The Seller has caused or will have caused, within ten days,
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 Transferred Receivables granted to
the Purchaser hereunder.
(e) Other than the security interest granted to the Purchaser
pursuant to this Agreement, the Seller has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the
Transferred Receivables. The Seller has not authorized the filing of and
is not aware of any financing statements against the Seller that include
a description of collateral covering the Transferred Receivables other
than any financing statement relating to the security interest granted to
the Purchaser hereunder or that has been terminated. The Seller is not
aware of any judgment or tax lien filings against the Seller.
ARTICLE THREE
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price. The Purchase Price for Transferred
Receivables relating to (i) Initial Accounts as of the Initial Cut-Off Date and
the related Purchased Assets conveyed to the Purchaser under this Agreement
shall be payable on the Closing Date and (ii) Initial Accounts, Additional
Accounts and the related Purchased Assets to be conveyed after the Closing Date
to the Purchaser under this Agreement, shall be payable in cash on the
Distribution Date following the Monthly Period in which such Transferred
Receivables and the related Purchased Assets are conveyed by the Seller to the
Purchaser.
Section 3.02. Adjustments to Purchase Price. The Purchase Price shall be
adjusted on each Distribution Date by an amount equal to the Credit Adjustment
with respect to any Receivable previously conveyed to the Purchaser by the
Seller which has since been reduced by the Seller or the Servicer because of a
rebate, refund, unauthorized charge or billing error to an Obligor because such
Receivable was created in respect of merchandise which was refused or returned
by an Obligor or due to the occurrence of any other event referred to in Section
3.09 of the Transfer and Servicing Agreement. In the event that the Credit
Adjustment pursuant to this Section causes the Purchase Price to be a negative
number, the Seller agrees that, not later than 1:00 p.m., New York City time, on
such Distribution Date, the Seller shall pay or cause to be paid to the
Purchaser an amount equal to the amount by which the Credit Adjustment exceeds
the Purchase Price. Notwithstanding the foregoing, if as a result of the
occurrence of any event giving rise to a Credit Adjustment, Purchaser is
required to deposit funds into the Special Funding Account pursuant to Section
3.09 of the Transfer and Servicing Agreement, Seller shall pay Purchaser an
amount equal to such required deposit in immediately available funds on or
before the date Purchaser is required to make such deposit to the Special
Funding Account.
Section 3.03. Capital Contribution. Simultaneously with the closing of
the Purchaser of the private placement of the Class A Notes, the Seller shall
make a capital contribution to the Purchaser of $336,970,500 in consideration of
a membership interest in the Purchaser.
ARTICLE FOUR
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to, and agrees with, the Purchaser as of the date
of this Agreement, as of the Closing Date and on each Addition Date, that:
(a) Organization and Good Standing. The Seller has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Colorado, with power and authority to own
its properties and conduct its business as such properties are currently
owned and such business is presently conducted, and had at all relevant
times, and has, power, authority and legal right to acquire, own and sell
the Receivables.
(b) Due Qualification. The Seller is duly qualified to do business
as a foreign corporation in good standing and has obtained all necessary
licenses and approvals in each jurisdiction in which the failure to so
qualify or to obtain such licenses and approvals would, in the reasonable
judgment of the Seller, materially and adversely affect the performance
by the Seller of its obligations under this Agreement and the Purchase
Agreements, or the validity or enforceability of this Agreement, the
Purchase Agreements or the Receivables.
(c) Power and Authority. The Seller has the power and authority to
execute, deliver and perform its obligations under this Agreement and to
carry out its terms; and the execution, delivery and performance of this
Agreement, each Purchase Agreement, any other document or instrument
delivered pursuant hereto, including any Supplemental Conveyance, to
which the Seller is a party (the "Conveyance Papers") and the sale of the
Receivables has been duly authorized by it by all necessary corporate
action.
(d) No Violation. The execution, delivery and performance by the
Seller of this Agreement, each Purchase Agreement, each Conveyance Paper
and the sale of the Receivables, the consummation of the transactions
contemplated hereby and by the Purchase Agreements and the fulfillment of
the terms hereof and thereof will not conflict with, result in a breach
of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, its articles of
incorporation or bylaws, or conflict with or breach any of the material
terms or provisions of, or constitute (with or without notice or lapse of
time or both) a default under, any indenture, agreement or other
instrument to which it is a party or by which it shall be bound; nor
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument (other than this Agreement); nor violate any law or, to
its knowledge, any order, rule or regulation applicable to it of any
court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over it or its
properties, which breach, default, conflict, Lien or violation would have
a material adverse effect on the Seller's earnings, business affairs or
business prospects or the Receivables.
(e) No Proceedings. There are no proceedings or investigations
pending, or to the Seller's knowledge, threatened against the Seller,
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or its
properties: (i) asserting the invalidity of this Agreement, the Purchase
Agreements or the Conveyance Papers, (ii) seeking to prevent the issuance
of the Notes or the consummation of any of the transactions contemplated
by this Agreement, the Purchase Agreements or the Conveyance Papers,
(iii) seeking any determination or ruling that might materially and
adversely affect the performance by the Seller of its obligations under
this Agreement, the Purchase Agreements or Conveyance Papers or (iv)
seeking to affect adversely the income tax attributes of the Trust under
federal or applicable state income or franchise tax systems.
(f) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or any Governmental
Authority required in connection with the execution and delivery by
Seller of this Agreement or any of the conveyance Papers and the
performance of the transactions contemplated by this Agreement or any of
the Conveyance Papers by Seller have been obtained.
(g) Insolvency. Seller is not insolvent and no Insolvency Event
with respect to Seller has occurred, and the transfer of the Transferred
Receivables and Purchased Assets by Seller to Purchaser contemplated
hereby has not been made in contemplation of such insolvency or
Insolvency Event.
The representations and warranties set forth in this Section shall
survive the transfer and assignment of the Receivables to the Purchaser. Upon
discovery by the Seller or the Purchaser of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
written notice to the other party, the Owner Trustee and the Indenture Trustee
within three Business Days following such discovery.
Section 4.02. Representations and Warranties as to the Agreement and the
Receivables.
(a) Representations and Warranties. The Seller hereby represents and
warrants to the Purchaser as of the date of this Agreement and as of the Closing
Date with respect to the Initial Accounts (and the Transferred Receivables
arising therein), and, with respect to Additional Accounts (and the Transferred
Receivables arising therein), as of the related Addition Date that:
(i) this Agreement and, in the case of Additional Accounts,
the related Supplemental Conveyance, each constitutes a legal, valid and
binding obligation of the Seller enforceable against the Seller in
accordance with its terms, except as such enforceability may be limited
by applicable Debtor Relief Laws or general principles of equity;
(ii) as of the Initial Cut-Off Date, with respect to the
Initial Accounts (and the Transferred Receivables arising therein) and as
of the related Addition Cut-Off Date with respect to Additional Accounts
(and the Transferred Receivables arising therein), Schedule 1 to this
Agreement, as supplemented to such date, is an accurate and complete
listing in all material respects of all the Accounts relating to
Transferred Receivables as
of the Initial Cut-Off Date or such Addition Cut-Off Date, as the case
may be, and the information contained therein with respect to the
identity of such Accounts and the Transferred Receivables existing
thereunder is true and correct in all material respects as of the Initial
Cut-Off Date or such applicable Addition Cut-Off Date, as the case may
be;
(iii) each Transferred Receivable conveyed to the Purchaser
by the Seller has been conveyed to the Purchaser free and clear of any
Lien of any Person claiming through or under the Seller or any of its
Affiliates (other than Liens permitted under Section 5.01(b)) and in
compliance with all Requirements of Law applicable to the Seller;
(iv) all authorizations, consents, orders or approvals of
or registrations or declarations with any Governmental Authority required
to be obtained, effected or given by the Seller in connection with the
conveyance by the Seller of the Transferred Receivables to the Purchaser
have been duly obtained, effected or given and are in full force and
effect;
(v) this Agreement or, in the case of Additional Accounts,
the related Supplemental Conveyance, upon execution and delivery by
Seller, constitutes an absolute sale, transfer and assignment to the
Purchaser of all right, title and interest of the Seller in the
Transferred Receivables and other Purchased Assets conveyed to the
Purchaser by the Seller and the proceeds thereof and Recoveries
identified as relating to the Transferred Receivables conveyed to the
Purchaser by the Seller or, if this Agreement or, in the case of
Additional Accounts, the related Supplemental Conveyance, does not
constitute a sale of such property, it constitutes a grant of a first
priority perfected "security interest" (as defined in the UCC) in such
property to the Purchaser, which, in the case of Transferred Receivables
in Initial Accounts and the proceeds thereof and Recoveries, is
enforceable upon execution and delivery of this Agreement, or, with
respect to then existing Transferred Receivables in Additional Accounts,
as of the applicable Addition Date, and which will be enforceable with
respect to such Transferred Receivables hereafter and thereafter created
and the proceeds thereof upon such creation; upon the filing of the
financing statements and, in the case of Transferred Receivables
hereafter created and the proceeds thereof, upon the creation thereof,
the Purchaser shall have a first priority perfected security or ownership
interest in such property and proceeds;
(vi) on the Initial Cut-Off Date, each Initial Account
specified in Schedule 1 with respect to the Seller is an Eligible Account
and, on the applicable Addition Cut-Off Date, each related Additional
Account specified in Schedule 1 with respect to the Seller is an Eligible
Account;
(vii) on the Initial Cut-Off Date, each Transferred
Receivable in Initial Accounts conveyed to the Purchaser by the Seller is
an Eligible Receivable and, on the applicable Addition Cut-Off Date, each
Transferred Receivable conveyed in the related Additional Accounts
conveyed to the Purchaser by the Seller is an Eligible Receivable;
(viii) as of the date of the creation of any new
Transferred Receivable transferred to the Purchaser by the Seller, such
Transferred Receivable is an Eligible Receivable; and
(ix) no selection procedures believed by the Seller to be
materially adverse to the interests of the Noteholders have been used in
selecting Accounts relating to Transferred Receivables.
(b) Notice of Breach. The representations and warranties set forth in
this Section shall survive the transfer and assignment of the Transferred
Receivables to the Purchaser and the transfer and assignment by the Purchaser of
the Transferred Receivables to the Issuer. Upon discovery by either the Seller
or the Purchaser of a breach of any of the representations and warranties set
forth in this Section, the party discovering such breach shall give written
notice to the other party, the Owner Trustee and the Indenture Trustee within
three Business Days following such discovery; provided that the failure to give
notice within three Business Days does not preclude subsequent notice. The
Seller hereby acknowledges that the Purchaser intends to rely on the
representations hereunder in connection with representations made by the
Purchaser to secured parties, assignees or subsequent transferees including but
not limited to transfers made by the Purchaser to the Trust pursuant to the
Transfer and Servicing Agreement and the pledge by the Trust to the Indenture
Trustee pursuant to the Indenture and that the Owner Trustee and the Indenture
Trustee may enforce such representations directly against the Seller.
Section 4.03. Representations and Warranties of the Purchaser. As of the
Closing Date and each Addition Date, the Purchaser hereby represents and
warrants to, and agrees with, the Seller that:
(a) Organization and Good Standing. The Purchaser has been duly
formed and is validly existing as a limited liability company in good
standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted,
and had at all relevant times, and has, power, authority and legal right
to acquire, own and purchase the Transferred Receivables.
(b) Due Qualification. The Purchaser is duly qualified to do
business as a foreign limited liability company in good standing and has
obtained all necessary licenses and approvals in each jurisdiction in
which the failure to so qualify or to obtain such licenses and approvals
would, in the reasonable judgment of the Purchaser, materially and
adversely affect the performance by the Purchaser of its obligations
under, or the validity or enforceability of, this Agreement.
(c) Power and Authority. The Purchaser has the power and authority
to execute, deliver and perform its obligations under this Agreement and
to carry out its terms; and the execution, delivery and performance of
this Agreement and the Conveyance Papers has been duly authorized by the
Purchaser by all necessary limited liability company action.
(d) No Violation. The execution, delivery and performance by the
Purchaser of this Agreement and the Conveyance Papers and of the purchase
of the Transferred Receivables and the consummation of the transactions
contemplated hereby and by the Conveyance Papers and the fulfillment of
the terms hereof and thereof does not conflict with, result in any breach
of any of the terms and provisions of, nor constitute (with or
without notice or lapse of time or both) a default under, the certificate
of formation or bylaws of the Purchaser, nor conflict with or violate any
of the material terms or provisions of, or constitute (with or without
notice or lapse of time or both) a default under, any indenture,
agreement or other instrument to which the Purchaser is a party or by
which it shall be bound; nor result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than this Agreement); nor
violate any law or any order, rule or regulation applicable to the
Purchaser of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Purchaser or its properties, which breach, default,
conflict, Lien or violation would have a material adverse effect on the
earnings, business affairs or business prospects of the Purchaser or on
the ability of the Purchaser to perform its obligations under this
Agreement.
(e) No Proceedings. There are no proceedings or investigations
pending, or to the Purchaser's knowledge, threatened against the
Purchaser, before any court, regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Purchaser
or its properties: (i) asserting the invalidity of this Agreement or any
Conveyance Papers, (ii) seeking to prevent the issuance of the Notes or
the consummation of any of the transactions contemplated by this
Agreement or (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Purchaser of its
obligations under this Agreement or the Conveyance Papers or (iv) seeking
to affect adversely the income tax attributes of the Trust under federal
or applicable state income or franchise tax systems.
(f) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or any Governmental
Authority required in connection with the execution and delivery by
Purchaser of this Agreement or any of the Conveyance Papers and the
performance of the transactions contemplated by this Agreement or any of
the Conveyance Papers by Purchaser have been obtained.
The representations and warranties set forth in this Section shall
survive the Conveyance of the Receivables to the Purchaser. Upon discovery by
the Purchaser or the Seller of a breach of any of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the other party, the Owner Trustee and the Indenture Trustee.
ARTICLE FIVE
COVENANTS
Section 5.01. Covenants of the Seller. The Seller hereby covenants and
agrees with the Purchaser as follows:
(a) Transferred Receivables Not to be Evidenced by Promissory
Notes. Except in connection with its enforcement or collection of any
Transferred Receivable, the Seller will take no action to cause any
Receivable conveyed by it to the Purchaser to be evidenced by any
instrument (as defined in the UCC) and if any Transferred Receivable is
so evidenced (whether or not in connection with the enforcement or
collection of an Account), it shall be deemed to be an Ineligible
Receivable and shall be reassigned to the Seller in accordance with
Section 6.01(b).
(b) Security Interests. Except for the conveyances hereunder, the
Seller will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any Lien on, any
Transferred Receivable conveyed by it to the Purchaser, whether now
existing or hereafter created, or any interest therein, and the Seller
shall defend the right, title and interest of the Purchaser in, to and
under the Transferred Receivables, whether now existing or hereafter
created, against all claims of third parties claiming through or under
the Seller; provided, however, that nothing in this Section shall prevent
or be deemed to prohibit the Seller from suffering to exist upon any of
the Transferred Receivables transferred by it to the Purchaser any Liens
for municipal or other local taxes if such taxes shall not at the time be
due and payable or if the 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.
(c) Account Allocations. In the event that the Seller is unable
for any reason to transfer Transferred Receivables to the Purchaser in
accordance with the provisions of this Agreement (including by reason of
the application of the provisions of Section 8.02 or any order of any
Governmental Authority), then the Seller agrees (except as prohibited by
any such order) to allocate and pay to the Purchaser, after the date of
such inability, all amounts in the manner by which the Purchaser will
allocate and pay such amounts to the Trust after such inability by the
Purchaser pursuant to Section 2.11 of the Transfer and Servicing
Agreement.
(d) Delivery of Collections or Recoveries. In the event that the
Seller receives Collections or Recoveries, the Seller agrees to pay to
the Purchaser (or to the Servicer if the Purchaser so directs) all such
Collections and Recoveries as soon as practicable after receipt thereof
but in no event later than two Business Days after the Date of Processing
thereof.
(e) Notice of Liens. The Seller shall notify the Purchaser
promptly after becoming aware of any Lien on any Transferred Receivable
(or on the underlying receivable) other than the conveyances hereunder,
under any Purchase Agreements, under the Transfer and Servicing Agreement
or under the Indenture.
(f) Continuous Perfection. The Seller shall not change its name,
identity or structure in any manner that might cause any financing or
continuation statement filed pursuant to this Agreement to be misleading
unless the Seller shall have delivered to the Purchaser at least 30 days'
prior written notice thereof and, no later than 30 days after making such
change, shall have taken all action necessary or advisable to amend such
financing statement or continuation statement so that it is not
misleading. The Seller shall not change the jurisdiction under whose laws
it is organized, its chief execution office or change the location of its
principal records concerning the Transferred Receivables unless it has
delivered to the Purchaser at least 30 days' prior written notice of its
intention to do so and has taken such action as is necessary or advisable
to cause the interest of the Purchaser in the Transferred Receivables and
other Purchased Assets to continue to be perfected with the priority
required by this Agreement.
Section 5.02. Covenants of the Seller with Respect to Purchase
Agreements. The Seller, in its capacity as purchaser of Transferred Receivables
from the Account Owner pursuant to the Purchase Agreements between the Seller
and the Account Owner, hereby covenants that it will at all times enforce the
covenants and agreements of the Account Owner in such Purchase Agreements,
including covenants substantially to the effect set forth below:
(a) Periodic Rate Finance Charges. Except (i) as otherwise
required by any Requirements of Law or (ii) as is deemed by the Account
Owner to be necessary in order for it to maintain its credit card
business on a competitive basis based on a good faith assessment by it of
the nature of the competition in the credit card business, it shall not
at any time reduce the annual percentage rate of the Periodic Rate
Finance Charges assessed on the Receivables transferred by it to the
Purchaser or other fees charged on any of the Accounts owned by it if
either (A) as a result of any such reduction, such Account Owner's
reasonable expectation is that such reduction will cause a Pay Out Event
or Event of Default to occur or (B) such reduction is not also applied to
all comparable segments of consumer revolving credit card accounts owned
by such Account Owner which have characteristics the same as, or
substantially similar to, such Accounts.
(b) Credit Card Agreements and Guidelines. Subject to compliance
with all Requirements of Law and Section 5.02(a), the Account Owner may
change the terms and provisions of the Credit Card Agreements or the
Credit Card Guidelines with respect to any of the Accounts owned by it in
any respect (including the calculation of the amount or the timing of
charge-offs and the Periodic Rate Finance Charges and other fees to be
assessed thereon) only if such change is made applicable to all
comparable segments of the consumer revolving credit card accounts owned
by such Account Owner which have characteristics the same as, or
substantially similar to, such Accounts. Notwithstanding the foregoing,
unless required by Requirements of Law or as permitted by Section
5.02(a), no Account Owner will take any action with respect to the Credit
Card Agreements or the Credit Card Guidelines, which, at the time of such
action, the Account Owner reasonably believes will have a material
adverse effect on the Noteholders.
The Seller further covenants that it will not enter into any amendments
to the Purchase Agreements or enter into a new Purchase Agreement unless the
Rating Agency Condition has been satisfied.
The Purchaser covenants that it will provide the Seller with such
information as the Seller may reasonably request to enable the Seller to
determine compliance with the covenants contained in Section 5.02(b).
ARTICLE SIX
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables.
(a) In the event any representation or warranty under Section
4.02(a)(ii), (iii), (iv), (vi), (vii), (viii) or (ix) is not true and correct in
any material respect as of the date specified therein with respect to any
Transferred Receivable or the related Account and as a result of such breach the
Purchaser is required to accept reassignment of Ineligible Receivables
previously sold by the Seller to the Purchaser pursuant to Section 2.05(a) of
the Transfer and Servicing Agreement, the Seller shall accept reassignment of
such Ineligible Receivables on the terms and conditions set forth in Section
6.01(b).
(b) The Seller shall accept reassignment of any Ineligible Receivables
previously sold by the Seller to the Purchaser from the Purchaser on the date on
which such reassignment obligation arises, and shall pay for such reassigned
Ineligible Receivables by paying to the Purchaser, not later than 3:00 p.m., New
York City time, on such date, an amount equal to the product of (i) 100% and
(ii) the sum of (A) the unpaid principal balance of such Ineligible Receivables
plus (B) accrued and unpaid finance charges at the annual percentage rate
applicable to such Receivables from the last date billed through the end of the
Monthly Period in which such reassignment obligation arises. Upon reassignment
of such Ineligible Receivables, the Purchaser shall automatically and without
further action be deemed to sell, transfer, assign, set-over and otherwise
convey to the Seller, without recourse, representation or warranty, all the
right, title and interest of the Purchaser in and to such Ineligible
Receivables, all Recoveries related thereto, all monies and amounts due or to
become due with respect thereto and all proceeds thereof; and such reassigned
Ineligible Receivables shall be treated by the Purchaser as collected in full as
of the date on which they were transferred. The Purchaser shall execute such
documents and instruments of transfer or assignment and take such other actions
as shall reasonably be requested by the Seller to effect the conveyance of such
Ineligible Receivables and other property pursuant to this subsection.
Section 6.02. Reassignment. In the event any representation or warranty
set forth in Section 4.01(a), (b) or (c) or Section 4.02(a)(i) or (v) is not
true and correct in any material respect and as a result of such breach the
Purchaser is required to accept a reassignment of the Receivables previously
sold by the Seller to the Purchaser pursuant to Section 2.06 of the Transfer and
Servicing Agreement, the Seller shall be obligated to accept a reassignment of
such Receivables on the terms set forth below.
The Seller shall pay to the Purchaser by depositing in the Collection
Account in immediately available funds, not later than 1:00 p.m., New York City
time, on the first Transfer Date following the Monthly Period in which such
reassignment obligation arises, in payment for such reassignment, an amount
equal to the amount specified in Section 2.06 of the Transfer and Servicing
Agreement. Upon reassignment of the Receivables on such Transfer Date, the
Purchaser shall automatically and without further action be deemed to sell,
transfer, assign, set-over and otherwise convey to the Seller, without recourse,
representation or warranty, all the right, title and interest of the Purchaser
in and to the Receivables, all Recoveries related thereto
and all monies and amounts due or to become due with respect thereto and all
proceeds thereof. The Purchaser shall execute such documents and instruments of
transfer or assignment and take such other actions as shall reasonably be
requested by the Seller to effect the conveyance of such property pursuant to
this Section.
ARTICLE SEVEN
CONDITIONS PRECEDENT
Section 7.01. Conditions to the Purchaser's Obligations Regarding Initial
Receivables. The obligations of the Purchaser to purchase the Transferred
Receivables in the Initial Accounts on the Closing Date shall be subject to the
satisfaction of the following conditions:
(a) all representations and warranties of the Seller contained in
this Agreement shall be true and correct on the Closing Date with the
same effect as though such representations and warranties had been made
on such date;
(b) all information concerning the Initial Accounts provided to
the Purchaser shall be true and correct as of the Initial Cut-Off Date in
all material respects;
(c) the Seller shall have (i) delivered to the Purchaser a
computer file or microfiche list containing a true and complete list of
all Initial Accounts identified by account number and by the Transferred
Receivables balance as of the Initial Cut-Off Date and (ii) substantially
performed all other obligations required to be performed by the
provisions of this Agreement;
(d) the Seller shall have recorded and filed, at its expense, any
financing statement with respect to the Transferred Receivables (other
than Transferred Receivables in Additional Accounts) now existing and
hereafter created for the transfer of accounts (as defined in the
applicable UCC) meeting the requirements of applicable law in such manner
and in such jurisdictions as would be necessary to perfect the sale of
and security interest in the Transferred Receivables from the Seller to
the Purchaser, and shall deliver a file-stamped copy of such financing
statements or other evidence of such filings to the Purchaser;
(e) on or before the Closing Date, (i) the Purchaser and the Owner
Trustee shall have entered into the Trust Agreement, (ii) the Purchaser,
the Bank and the Trust shall have entered into the Transfer and Servicing
Agreement, (iii) the Trust and the Indenture Trustee shall have entered
into the Indenture and (iv) the closing under all such agreements shall
take place simultaneously with the initial closing hereunder; and
(f) all corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Purchaser, and the Purchaser
shall have received from the Seller copies of all documents (including
records of corporate proceedings) relevant to the transactions herein
contemplated as the Purchaser may reasonably have requested.
Section 7.02. Conditions Precedent to the Seller's Obligations. The
obligations of the Seller to sell Transferred Receivables in the Initial
Accounts on the Closing Date shall be subject to the satisfaction of the
following conditions:
(a) All representations and warranties of the Purchaser contained
in this Agreement shall be true and correct with the same effect as
though such representations and warranties had been made on such date;
(b) Payment or provision for payment of the Purchase Price in
accordance with the provision of Section 3.01 shall have been made; and
(c) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Seller, and the Seller shall
have received from the Purchaser copies of all documents (including
records of corporate proceedings) relevant to the transactions herein
contemplated as the Seller may reasonably have requested.
ARTICLE EIGHT
TERM AND PURCHASE TERMINATION
Section 8.01. Term. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue until at least the termination
of the Trust as provided in Article Eight of the Trust Agreement. Thereafter,
this Agreement may be terminated by the mutual agreement of the parties hereto.
Section 8.02. Purchase Termination. If an Insolvency Event occurs with
respect to the Seller, then the Seller shall immediately cease to transfer
Principal Receivables to the Purchaser and shall promptly give notice to the
Purchaser, the Owner Trustee and the Indenture Trustee of such Insolvency Event.
Notwithstanding any cessation of the transfer to the Purchaser of additional
Principal Receivables, Principal Receivables transferred to the Purchaser prior
to the occurrence of such Insolvency Event and Collections in respect of such
Principal Receivables and Finance Charge Receivables whenever created, accrued
in respect of such Principal Receivables, shall continue to be property of the
Purchaser available for transfer by the Purchaser to the Trust pursuant to the
Transfer and Servicing Agreement.
ARTICLE NINE
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment. This Agreement and any Conveyance Papers and the
rights and obligations of the parties hereunder and thereunder may not be
changed orally, but only by an instrument in writing signed by the Purchaser and
the Seller in accordance with this Section. This Agreement and any Conveyance
Papers may be amended from time to time by the Purchaser and the Seller (i) to
cure any ambiguity, (ii) to correct or supplement any provisions herein which
may be inconsistent with any other provisions herein or in any such other
Conveyance Papers, (iii) to add any other provisions with respect to matters or
questions arising under this Agreement or any Conveyance Papers which shall not
be inconsistent with the provisions of this Agreement or any Conveyance Papers,
(iv) to change or modify the Purchase Price and (v) to change, modify, delete or
add any other obligation of the Seller or the Purchaser; provided, however, that
no amendment pursuant to clause (ii), (iii), (iv) or (v) of this Section shall
be effective unless the Seller and the Purchaser have been notified in writing
that the Rating Agency Condition has been satisfied; provided further that the
Seller shall have delivered to the Purchaser an Officer's Certificate, dated the
date of such action, stating that the Seller reasonably believes that such
action will not have an Adverse Effect unless the Owner Trustee and the
Indenture Trustee shall consent thereto. Any reconveyance executed in accordance
with the provisions hereof shall not be considered to be an amendment to this
Agreement. A copy of any amendment to this Agreement shall be sent to the Rating
Agency.
Section 9.02. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1041 OF THE GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.03. Notices. All demands, notices, instruction, directions and
communications hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered at, mailed by registered mail, return receipt
requested, or sent by facsimile transmission to (a) in the case of the Seller,
00000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Legal Department
(facsimile no. (000) 000-0000), (b) in the case of the Purchaser, 00000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Legal Department (facsimile
no. (000) 000-0000), (c) in the case of the Owner Trustee, Xxxxxx Square North,
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate
Trust Administration (facsimile no. (000) 000-0000), or (d) in the case of the
Indenture Trustee, 0000 Xxxxxxxx, Xxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust and Escrow Services (facsimile no. (000) 000-0000); or (e) as to
each party, at such other address or facsimile number as shall be designated by
such party in a written notice to each other party.
Section 9.04. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement or any 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, and terms of this
Agreement or any Conveyance Paper and shall in no way affect the validity or
enforceability of the remaining provisions of this Agreement or of any
Conveyance Paper.
Section 9.05. Merger, Consolidation of, or Assignment of Obligations of
Seller.
(a) The Seller shall not consolidate with or merge into any other
corporation 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 the
Seller is merged or the Person which acquires by conveyance or transfer
the properties and assets of Seller substantially as an entirety shall
be, if the Seller is no the surviving entity, an entity organized and
existing under the laws of the United States of America or any State or
the District of Columbia, and if the Seller is not the surviving entity,
such entity expressly assume, by an agreement supplemental hereto,
executed and delivered to the Purchaser and the Indenture Trustee in form
reasonably satisfactory to the Purchaser and the Indenture Trustee, the
performance of every covenant and obligation of the Seller hereunder;
(ii) The Seller has delivered to the Purchaser and the
Indenture Trustee (A) an Officer's Certificate stating that such
consolidation, merger, conveyance or transfer and such supplemental
agreement comply with this Section and that all conditions precedent
herein provided for relating to such transaction have been complied with,
and (B) an Opinion of Counsel to the effect that such supplemental
agreement is a valid and binding obligation of such surviving entity
enforceable against such surviving entity in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect and except as
such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity);
(iii) The Seller shall have delivered to the Purchaser and
Indenture Trustee and each Rating Agency a Tax Opinion, dated the date of
such consolidation, merger, conveyance or transfer, with respect thereto;
and
(iv) If the Seller is not the surviving entity, the
surviving entity shall file new UCC-1 financing statements with respect
to the interest of the purchaser in the Transferred Receivables.
(b) This Section shall not be construed to prohibit or in any way
limit the Seller's ability to effectuate any consolidation or merger
pursuant to which the Seller would be the surviving entity.
(c) The Seller shall notify each Rating Agency promptly after any
consolidation, merger, conveyance or transfer effected pursuant to this
Section;
(d) The obligations of the Seller hereunder shall not be
assignable nor shall any Person succeed to the obligations of the Seller
hereunder except in each case in
accordance with (i) the provisions of the foregoing paragraphs or (ii)
conveyances, mergers, consolidations, assumptions, sales or transfers to
other entities (1) for which the Seller delivers an Officer's Certificate
to the Purchaser and the Indenture Trustee indicating that the Seller
reasonably believes that such action will not adversely affect in any
material respect the interests of the Purchaser or any Noteholder, (2)
which meet the requirements of clause (ii) of paragraph (a) and (3) for
which such purchaser, transferee, pledgee or entity shall expressly
assume, in an agreement supplemental hereto, executed and delivered to
the Purchaser and the Indenture Trustee in writing in form satisfactory
to the Seller and the Indenture Trustee, the performance of every
covenant and obligation of the Seller thereby conveyed.
Section 9.06. Acknowledgement and Agreement of the Seller. By execution
below, the Seller expressly acknowledges and agrees that all of the Purchaser's
right, title, and interest in, to, and under this Agreement, including all of
the Purchaser's right, title, and interest in and to the Transferred Receivables
purchased pursuant to this Agreement, may be assigned by the Purchaser to the
Trust, and a security interest therein may be granted by the Trust to the
Indenture Trustee for the benefit of the beneficiaries of the Trust, including
the Noteholders, and the Seller consents to such assignment and grant. The
Seller further agrees that notwithstanding any claim, counterclaim, right of
setoff or defense which it may have against the Purchaser, due to a breach by
the Purchaser of this Agreement or for any other reason, and notwithstanding the
bankruptcy of the Purchaser or any other event whatsoever, the Seller's sole
remedy shall be a claim against the Purchaser for money damages, and then only
to the extent of funds available to the Purchaser, and in no event shall the
Seller assert any claim on or any interest in the Transferred Receivables or any
proceeds thereof or take any action which would reduce or delay receipt by the
Trust of collections with respect to the Receivables. Additionally, the Seller
agrees that any amounts payable by the Seller to the Purchaser hereunder which
are to be paid by the Purchaser to the Indenture Trustee shall be paid by the
Seller, on behalf of the Purchaser, directly to the Indenture Trustee.
Section 9.07. Further Assurances. The Purchaser and the Seller agree to
do and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party and
their respective permitted successors and assigns, the Owner Trustee or the
Indenture Trustee more fully to effect the purposes of this Agreement and the
Conveyance Papers, including the execution of any financing statements or
continuation statements relating to the Transferred Receivables for filing under
the provisions of the UCC of any applicable jurisdiction.
Section 9.08. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Purchaser or the Seller, any right,
remedy, power or privilege under this Agreement, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges provided under this Agreement are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
Section 9.09. Counterparts. This Agreement and all 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. Third-Party Beneficiaries. This Agreement and the
Conveyance Papers will inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns. The Trust and the
Indenture Trustee shall be considered third-party beneficiaries of this
Agreement. Except as otherwise expressly provided in this Agreement, no other
Person will have any right or obligation hereunder.
Section 9.11. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement and the 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 the
Conveyance Papers. This Agreement and the Conveyance Papers may not be modified,
amended, waived or supplemented except as provided herein.
Section 9.12. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction 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.
Section 9.14. Survival of Representations and Warranties. All
representations, warranties and agreements contained in this Agreement or
contained in any Supplemental Conveyance shall remain operative and in full
force and effect and shall survive conveyance of the Receivables by the
Purchaser to the Trust pursuant to the Transfer and Servicing Agreement and the
grant of a security interest therein by the Trust to the Indenture Trustee
pursuant to the Indenture.
Section 9.15. Nonpetition Covenant. Notwithstanding any prior termination
of this Agreement, the Seller shall not, prior to the date which is one year and
one day after the termination of this Agreement, acquiesce, petition or
otherwise invoke or cause the Purchaser or the Trust to invoke the process of
any Governmental Authority for the purpose of commencing or sustaining a case
against the Purchaser or the Trust under any Debtor Relief Law or appointing a
receiver, conservator, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Purchaser or the Trust or any substantial part of
its property or ordering the winding-up or liquidation of the affairs of the
Purchaser or the Trust.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Receivables Purchase Agreement to be duly executed by their respective officers
as of the day and year first above written.
NORDSTROM CREDIT, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
Assistant Treasurer
NORDSTROM PRIVATE LABEL
RECEIVABLES LLC
By: /s/ Xxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx
President
EXHIBIT A
FORM OF SUPPLEMENTAL CONVEYANCE
(As required by Section 2.03 of the Receivables Purchase Agreement)
This Supplemental Conveyance No. ___ dated as of ____________, 200_, is
between Nordstrom Credit, Inc., as seller ("the Seller"), and Nordstrom Private
Label Receivables LLC, as purchaser ("the Purchaser"), pursuant to the
Receivables Purchase Agreement referred to below.
WHEREAS, the Seller and the Purchaser are parties to a receivables
purchase agreement, dated as of October 1, 2001 (hereinafter as such agreement
may have been amended or supplemented from time to time, the "Receivables
Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, the Seller
wishes to designate Additional Accounts to be included as Accounts and the
Seller wishes to convey its right, title and interest in the Transferred
Receivables of such Additional Accounts, whether now existing or hereafter
created, to the Purchaser pursuant to the Receivables Purchase Agreement (as
each such term is defined in the Receivables Purchase Agreement); and
WHEREAS, the Purchaser is willing to accept such designation and
conveyance subject to the terms and conditions hereof.
NOW, THEREFORE, the Seller and the Purchaser hereby agree as follows:
1. Defined Terms. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the Receivables Purchase
Agreement.
"Addition Date" means, with respect to the Additional Accounts designated
hereby __________ ___, ____.
"Addition Cut-Off Date" means, with respect to the Additional Accounts
designated hereby, __________ ___, ____.
2. Designation of Additional Accounts. The Seller delivers herewith a
computer file or microfiche list containing a true and complete schedule
identifying all such Additional Accounts (the "Additional Accounts") and
specifying for each such Additional Account, as of the Addition Cut-Off Date,
its account number, the aggregate amount outstanding in such Account and the
aggregate amount of Principal Receivables in such Account. Such computer file,
microfiche list or other documentation shall be as of the date of this
Supplemental Conveyance incorporated into and made part of this Supplemental
Conveyance and is marked as Schedule 1 to this Supplemental Conveyance.
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3. Conveyance of Receivables.
(a) The Seller does hereby sell, transfer, assign, set over and otherwise
convey to the Purchaser, without recourse except as provided in the Receivables
Purchase Agreement, all its right, title and interest in, to and under the
Transferred Receivables arising in such Additional Accounts, existing at the
close of business on the Addition Cut-Off Date and thereafter created until
termination of the Receivables Purchase Agreement, all Recoveries with respect
to such Transferred Receivables, all monies due or to become due and all amounts
received or receivable with respect thereto and all "proceeds" (including
"proceeds" as defined in Article 9 of the UCC) thereof.
(a) In connection with such sale and if necessary, the Seller agrees to
record and file, at its own expense, one or more financing statements (and
continuation statements with respect to such financing statements when
applicable) with respect to the Receivables, existing on the Addition Cut-Off
Date and thereafter created, meeting the requirements of applicable state law in
such manner and in such jurisdictions as are necessary to perfect the sale and
assignment of and the security interest in the Receivables to the Purchaser, and
to deliver a file-stamped copy of such financing statement or other evidence of
such filing to the Purchaser.
(b) In connection with such sale, the Seller further agrees, at its own
expense, on or prior to the date of this Supplemental Conveyance, to indicate in
the appropriate computer files or microfiche list that all Transferred
Receivables created in connection with the Additional Accounts designated hereby
have been conveyed to the Purchaser pursuant to this Supplemental Conveyance.
4. Acceptance by the Purchaser. The Purchaser hereby acknowledges its
acceptance of all right, title and interest to the property, existing on the
Addition Cut-Off Date and thereafter created, conveyed to the Purchaser pursuant
to Section 3(a) and declares that it shall maintain such right, title and
interest. The Purchaser further acknowledges that, prior to or simultaneously
with the execution and delivery of this Supplemental Conveyance, the Seller
delivered to the Purchaser the computer file or microfiche list described in
Section 2.
5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Purchaser as of the date of this Supplemental
Conveyance and as of the Addition Date that:
(a) Legal, Valid and Binding Obligation. This Supplemental
Conveyance constitutes a legal, valid and binding obligation of the
Seller enforceable against the Seller in accordance with its terms,
except as such enforceability may be limited by applicable Debtor Relief
Laws or general principles of equity;
(b) Eligibility of Accounts. On the Addition Cut-Off Date, each
Additional Account designated hereby is an Eligible Account;
(c) No Liens. Each Receivable in an Additional Account designated
hereby has been conveyed to the Purchaser free and clear of any Lien and
each underlying receivable is free and clear of all Liens;
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(d) Eligibility of Receivables. On the Addition Cut-Off Date, each
Transferred Receivable existing in an Additional Account designated
hereby is an Eligible Receivable and as of the date of creation of any
Receivable in an Additional Account designated hereby, such Receivable is
an Eligible Receivable;
(e) Selection Procedures. No selection procedure believed by the
Seller to be adverse to the interests of the Purchaser or the Noteholders
was utilized in selecting the Additional Accounts;
(f) Transfer of Receivables. This Supplemental Conveyance
constitutes a valid sale, transfer and assignment to the Purchaser of all
right, title and interest of the Seller in the Transferred Receivables
arising in the Additional Accounts designated hereby existing on the
Addition Cut-Off Date or thereafter created, the Recoveries with respect
thereto, all monies due or to become due and all amounts received with
respect thereto and the "proceeds" (including "proceeds" as defined in
Article 9 of the UCC) thereof;
(g) No Conflict. The execution and delivery of this Supplemental
Conveyance, the performance of the transactions contemplated by this
Supplemental Conveyance and the fulfillment of the terms hereof, 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 the Seller is a
party or by which it or its properties are bound;
(h) No Violation. The execution and delivery of this Supplemental
Conveyance by the Seller, the performance of the transactions
contemplated by this Supplemental Conveyance and the fulfillment of the
terms hereof applicable to the Seller will not conflict with or violate
any Requirements of Law applicable to the Seller;
(i) No Proceedings. There are no proceedings or investigations,
pending or, to the best knowledge of the Seller, threatened, against the
Seller before any Governmental Authority (i) asserting the invalidity of
this Supplemental Conveyance, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Supplemental Conveyance,
(iii) seeking any determination or ruling that, in the reasonable
judgment of the Seller, would materially and adversely affect the
performance by the Seller of its obligations under this Supplemental
Conveyance or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Supplemental Conveyance; and
(j) All Consents. All authorizations, consents, orders or
approvals of any Governmental Authority required to be obtained by the
Seller in connection with the execution and delivery of this Supplemental
Conveyance by the Seller and the performance of the transactions
contemplated by this Supplemental Conveyance by the Seller, have been
obtained.
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6. Ratification of the Receivables Purchase Agreement. The Receivables
Purchase Agreement is hereby ratified, and all references to the "Receivables
Purchase Agreement," to "this Agreement" and "herein" shall be deemed from and
after the Addition Date to be a reference to the Receivables Purchase Agreement
as supplemented by this Supplemental Conveyance. Except as expressly amended
hereby, all the representations, warranties, terms, covenants and conditions of
the Receivables 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 consent to non-compliance with any
term or provision of the Receivables Purchase Agreement.
7. 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.
8. Governing Law. This Supplemental Conveyance shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions (other than Section 5-1401 of the General Obligations
Law), and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
A-4
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 the year first above written.
NORDSTROM CREDIT, INC.
By:
-----------------------------------
Name:
Title:
NORDSTROM PRIVATE LABEL
RECEIVABLES LLC
By:
-----------------------------------
Name:
Title:
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Schedule 1 to
Supplemental
Conveyance
Additional Accounts
A-6
Schedule 1
List of Accounts
[Delivered to the Owner Trustee and Indenture Trustee at Closing]
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