Exhibit 4.3
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TRANSFER AND SERVICING AGREEMENT
between
FIRST CONSUMERS NATIONAL BANK,
Seller and Servicer,
and
FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST,
Issuer,
Dated as of March 1, 2001
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS......................................................................... 1
Section 1.1. Definitions.......................................................... 1
Section 1.2. Other Definitional Provisions........................................ 1
Section 1.3. Monthly Allocation of Finance Charge Receivables..................... 2
ARTICLE II CONVEYANCE OF RECEIVABLES........................................................... 2
Section 2.1. Conveyance of Receivables............................................ 2
Section 2.2. Acceptance by Issuer................................................. 4
Section 2.3. Representations and Warranties of Seller Relating to Seller.......... 5
Section 2.4 Representations and Warranties of Seller Relating to this
Agreement and the Receivables........................................ 6
Section 2.5. Covenants of Seller.................................................. 10
Section 2.6. Addition of Accounts................................................. 12
Section 2.7. Removal of Accounts.................................................. 15
Section 2.8. Discount Option...................................................... 16
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES......................................... 17
Section 3.1. Acceptance of Appointment and Other Matters Relating to the
Servicer............................................................. 17
Section 3.2. Servicing Compensation............................................... 18
Section 3.3. Representations; Warranties and Covenants of the Servicer............ 19
Section 3.4. Reports and Records for the Indenture Trustee; Bank Account
Statements........................................................... 20
Section 3.5. Annual Servicer's Certificate........................................ 20
Section 3.6. Annual Independent Public Accountants' Servicing Report.............. 21
Section 3.7. Tax Treatment........................................................ 22
Section 3.8. Notices to Seller.................................................... 22
Section 3.9. Reports to the Commission............................................ 22
ARTICLE IV OTHER MATTERS RELATING TO SELLER 22
Section 4.1. Liability of Seller.................................................. 22
Section 4.2. Merger or Consolidation of, or Assumption of the Obligations of,
Seller etc........................................................... 22
Section 4.3. Limitation on Liability of Seller.................................... 23
ARTICLE V OTHER MATTERS RELATING TO THE SERVICER................................................ 24
Section 5.1. Liability of the Servicer.............................................. 24
Section 5.2. Merger or Consolidation of, or Assumption of the Obligations of, the
Servicer............................................................... 24
Section 5.3. Limitation on Liability of the Servicer and Others..................... 24
Section 5.4. Indemnification of the Issuer and the Owner Trustee.................... 25
Section 5.5. The Servicer Not to Resign............................................. 26
Section 5.6. Access to Certain Documentation and Information Regarding the
Receivables............................................................ 26
Section 5.7. Delegation of Duties................................................... 26
Section 5.8. Examination of Records................................................. 26
ARTICLE VI INSOLVENCY EVENTS..................................................................... 27
Section 6.1. Rights upon the Occurrence of an Insolvency Event...................... 27
ARTICLE VII SERVICER DEFAULTS..................................................................... 27
Section 7.1. Servicer Defaults...................................................... 27
Section 7.2. Indenture Trustee to Act; Appointment of Successor..................... 29
Section 7.3. Notification to Noteholders............................................ 31
ARTICLE VIII TERMINATION........................................................................... 31
Section 8.1. Termination of Agreement............................................... 31
ARTICLE IX MISCELLANEOUS PROVISIONS.............................................................. 31
Section 9.1. Amendment; Waiver of Past Defaults..................................... 31
Section 9.2. Protection of Right, Title and Interest to Issuer...................... 33
Section 9.3. Governing Law.......................................................... 34
Section 9.4. Notices; Payments...................................................... 34
Section 9.5. Severability of Provisions............................................. 35
Section 9.6. Further Assurances..................................................... 35
Section 9.7. No Waiver; Cumulative Remedies......................................... 35
Section 9.8. Counterparts........................................................... 35
Section 9.9. Third-Party Beneficiaries.............................................. 36
Section 9.10. Actions by Noteholders................................................. 36
Section 9.11. Rule 144A Information.................................................. 36
Section 9.12. Merger and Integration................................................. 36
Section 9.13. No Bankruptcy Petition................................................. 36
Section 9.14. Rights of Indenture Trustee............................................ 37
Section 9.15. Rights of the Owner Trustee............................................ 37
EXHIBITS
EXHIBIT A Form of Assignment of Receivables in Additional Accounts.............. A-1
EXHIBIT B Form of Reassignment of Receivables in Removed Accounts............... B-1
EXHIBIT C Form of Monthly Servicer's Certificate................................ C-1
EXHIBIT D Form of Annual Servicer's Certificate................................. D-1
EXHIBIT E Form of Annual Independent Public Accountants' Servicing Report....... E-1
EXHIBIT F-1 Form of Opinion of Counsel with Respect to Amendments................. F-1-1
EXHIBIT F-2 Form of Opinion of Counsel with Respect to Accounts................... F-2-1
EXHIBIT F-3 Provisions to be Included in Annual Opinion of Counsel................ F-3-1
SCHEDULES
SCHEDULE 1 List of Accounts...................................................... 1-1
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TRANSFER AND SERVICING AGREEMENT, dated as of March 1, 2001 (this
"Agreement") between FIRST CONSUMERS NATIONAL BANK, a national banking
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association, as Seller and Servicer, and FIRST CONSUMERS CREDIT CARD MASTER NOTE
TRUST, a trust organized under the laws of the State of Illinois, as Issuer.
In consideration of the mutual agreements herein contained, each party
agrees as follows for the benefit of the other parties, the Noteholders and any
Series Enhancer to the extent provided herein, in the Indenture and in any
Indenture Supplement:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Capitalized terms used herein and not otherwise
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defined herein are defined in Annex A to the Master Indenture, dated as of the
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date hereof, between First Consumers Credit Card Master Note Trust and The Bank
of New York.
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 as in effect in the State of Illinois and not otherwise
defined in this Agreement are used as defined in that Article; (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
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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.
Section 1.3. Monthly Allocation of Finance Charge Receivables. The
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amount of Finance Charge Receivables (excluding, in each case where such term is
used in this Section 1.3, Discount Option Receivables) in all Accounts shall be
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determined as follows:
(a) At the close of business on each Cycle Billing Date for any Cycle of
which any Accounts are included in the Trust, the amount of Finance Charge
Receivables of all Accounts in such Cycle shall be equal to the result of (A)
the amount of Finance Charges charged to all Accounts in such Cycle on such date
minus (B) the amount of Finance Charge Receivables on all Accounts in such
Billing Cycle that have been charged off since the close of business on the
preceding Cycle Billing Date. As of the end of each Monthly Period, the amount
of Finance Charge Receivables for all Accounts shall equal (X) the sum of the
amounts calculated pursuant to the preceding sentence for each Cycle of which
Accounts are included in the Trust during that Monthly Period plus (Y) the
Carry-Over Finance Charge Amount.
(b) For each Business Day in each Monthly Period, the amount of
Collections allocated to Finance Charge Receivables for all Accounts shall be
all Collections available for allocation on that Business Day up to an amount
equal to the quotient of the result determined pursuant to paragraph (a) above
as of the end of the immediately preceding Monthly Period divided by the number
of Business Days in such present Monthly Period; provided, however, that (A) the
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amount of Collections allocated to Finance Charge Receivables for all Accounts
on the first Business Day of each Monthly Period shall equal the product of two
times such quotient, (B) subject to clause (C) below, the amount of Collections
allocated to Finance Charge Receivables for all Accounts on the last Business
Day of each Monthly Period shall equal zero and (C) to the extent that the total
Collections available for allocation on any Business Day (other than the last
Business Day of a Monthly Period) is less than the amount that is to be
allocated to Collections of Finance Charge Receivables on that Business Day,
then the deficit shall be added to the amount of Collections that will be
allocated to Finance Charge Receivables on the next Business Day.
(c) If, at the close of business on the last Business Day of any Monthly
Period, the amount of Collections allocated to Finance Charge Receivables for
all Accounts during such Monthly Period is less than the amount of Finance
Charge Receivables for all Accounts calculated pursuant to paragraph (a) as of
the end of the next preceding Monthly Period, then such deficit shall be the
"Carry-Over Finance Charge Amount" and shall be added to the amount of Finance
Charge Receivables as of the end of the then current Monthly Period pursuant to
paragraph (a).
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Notwithstanding the foregoing, the Servicer may adopt a different method of
determining the amount of Finance Charge Receivables which in the good faith
judgment of the Servicer is designed to more accurately reflect the portions of
Receivables and Collections constituting Finance Charge Receivables.
ARTICLE II
CONVEYANCE OF RECEIVABLES
Section 2.1. Conveyance of Receivables. By execution of this Agreement,
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Seller does hereby transfer, assign, set over and otherwise convey to the
Issuer, without recourse except as provided herein, all its right, title and
interest in, to and under (a) the Collateral Certificate, and (b) effective on
the FCMT Termination Date, the Receivables existing at the opening of business
on the FCMT Termination Date, and thereafter created from time to time until the
termination of the Issuer, all Collections and Recoveries allocable to the
Issuer as provided herein, the rights to receive certain amounts paid or payable
as Interchange (if and to the extent provided for in any Indenture Supplement),
all rights to security for any Receivables (including without limitation rights
to bank accounts or certificates of deposit pledged as collateral) and the right
to any Enhancement with respect to any Series, in each case together with all
monies due or to become due and all amounts received or receivable with respect
thereto and all proceeds thereof and Insurance Proceeds relating thereto. Such
property, together with all monies and other property credited to the Collection
Account, the Series Accounts and the Excess Funding Account (including any
subaccounts of any such account), the rights of the Issuer under this Agreement
and the Trust Agreement and the right to receive Recoveries shall constitute the
assets of the Issuer (the "Trust Assets"). The foregoing does not constitute and
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is not intended to result in the creation or assumption by the Issuer, the Owner
Trustee, the Indenture Trustee or any Noteholder of any obligation of the
Seller, the Servicer or any other Person in connection with the Accounts or the
Receivables or under any agreement or instrument relating thereto, including any
obligation to Obligors, merchant banks, merchants or clearance systems.
On or prior to the Initial Closing Date, Seller shall deliver to the Owner
Trustee a registered certificate representing the Collateral Certificate. On or
prior to the FCMT Termination Date, Seller agrees to record and file, at its own
expense, financing statements (and continuation statements when applicable) with
respect to the Receivables conveyed by Seller existing on the FCMT Termination
Date and thereafter created meeting the requirements of applicable state law in
such manner and in such jurisdictions as are necessary to perfect, and maintain
the perfection of, the transfer and assignment of its interest in such
Receivables to the Issuer, and to deliver a file stamped copy of each such
financing statement or other evidence of such filing to the Owner Trustee as
soon as practicable after the FCMT Termination Date, and (if any additional
filing is so necessary) as soon as practicable after the
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applicable Addition Date, in the case of Receivables arising in Additional
Accounts. The Owner Trustee shall be under no obligation whatsoever to file such
financing or continuation statements or to make any other filing under the UCC
in connection with such transfer and assignment.
Seller further agrees, at its own expense, on or prior to (x) the FCMT
Termination Date, (y) the applicable Addition Date, in the case of Additional
Accounts (other than Additional Accounts added pursuant to Section 2.6(e)), and
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(z) the applicable Removal Date, in the case of Removed Accounts, (a) to
indicate in the appropriate computer files that Receivables created (or
reassigned, in the case of Removed Accounts) in connection with the Accounts
have been conveyed to the Issuer pursuant to this Agreement (or conveyed to
Seller or its designee in accordance with Section 2.7, in the case of Removed
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Accounts) and (b) to deliver to the Owner Trustee a computer file or microfiche
list containing a true and complete list of all such Accounts specifying for
each such Account, as of the FCMT Termination Date, the applicable Addition Date
in the case of Additional Accounts, and the applicable Removal Date in the case
of Removed Accounts, its account number and, the aggregate amount outstanding in
such Account and the aggregate amount of Principal Receivables outstanding in
such Account. Each such file or list, as supplemented, from time to time, to
reflect Additional Accounts and Removed Accounts, shall be marked as Schedule 1
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to this Agreement and is hereby incorporated into and made a part of this
Agreement.
If the arrangements with respect to the Receivables hereunder shall
constitute a loan and not a purchase and sale of such Receivables, it is the
intention of the parties hereto that this Agreement shall constitute a security
agreement under applicable law, and that Seller shall be deemed to have granted
to the Issuer a first priority perfected security interest in all of Seller's
right, title and interest, whether owned on the FCMT Termination Date or
thereafter acquired, in, to and under the Receivables and the other Trust Assets
conveyed by Seller, and all money, accounts, general 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 Trust Assets, to secure its obligations
hereunder.
Seller acknowledges that all instruments (including certificates of
deposit) and bank accounts the security interest in which has been transferred
to the Issuer hereby and which are maintained with Seller or of which Seller has
possession, shall be so maintained and held by Seller on behalf and for the
benefit of the Issuer, in accordance with the terms of this Agreement.
Additionally, for purposes of perfecting the Issuer's security interest in
bank accounts pledged to Seller, which security interest Seller has transferred
to the Issuer hereunder, this Agreement constitutes and shall be deemed (i)
notice to Seller by the Issuer of the Issuer's security interest in such bank
accounts, and (ii) Seller's
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acknowledgment of and consent to the Issuer's notice and the Issuer's security
interest in such bank accounts.
Section 2.2. Acceptance by Issuer.
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(a) The Issuer hereby acknowledges its acceptance of all right, title and
interest to the property, now existing and hereafter created, conveyed to the
Issuer pursuant to Section 2.1. The Owner Trustee shall maintain a copy of
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Schedule 1, as delivered from time to time, at its Corporate Trust Office.
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(b) The Owner Trustee hereby agrees not to disclose to any Person any of
the account numbers or other information contained in the computer files or
microfiche lists marked as Schedule 1 and delivered to the Owner Trustee or the
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Issuer, from time to time, except (i) to a Successor Servicer or as required by
a Requirement of Law applicable to the Owner Trustee, (ii) in connection with
the performance of the Owner Trustee's or the Issuer's duties hereunder, (iii)
to the Indenture Trustee in connection with its duties in enforcing the rights
of Noteholders or (iv) to bona fide creditors or potential creditors of the
Servicer or Seller for the limited purpose of enabling any such creditor to
identify Receivables or Accounts subject to this Agreement. The Owner Trustee
and the Issuer each agrees to take such measures as shall be reasonably
requested by Seller to protect and maintain the security and confidentiality of
such information and, in connection therewith, shall allow Seller or its duly
authorized representatives to inspect the Owner Trustee's security and
confidentiality arrangements as they specifically relate to the administration
of the Issuer from time to time during normal business hours upon prior written
notice. The Owner Trustee and the Issuer shall provide Seller with notice five
(5) Business Days prior to disclosure of any information of the type described
in this Section 2.2(b).
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Section 2.3. Representations and Warranties of Seller Relating to Seller.
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Seller hereby represents and warrants as of the Initial Closing Date that:
(a) Organization and Good Standing. Seller is a national banking
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association duly organized and validly existing in good standing under the laws
of the United States of America, has FDIC deposit insurance and has full
corporate power, authority and legal right to own its properties and conduct its
business as such properties are presently owned and such business is presently
conducted, and to execute, deliver and perform its obligations under this
Agreement.
(b) Due Qualification. Seller is qualified as a foreign banking
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association or other entity in any state where it is required to be so qualified
in order to conduct its business as required by this Agreement, and has obtained
all necessary
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licenses and approvals as required under federal and state law, in each case,
where the failure to be so qualified, licensed or approved, could reasonably be
expected materially and adversely to affect the ability of the Seller to comply
with the terms of this Agreement.
(c) Due Authorization. The execution and delivery of this Agreement and
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the consummation of the transactions provided for herein have been duly
authorized by Seller by all necessary corporate action on the part of Seller.
This Agreement from the time of its execution shall remain an official record of
the Seller.
(d) No Conflict. The execution and delivery of this Agreement, the
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performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof 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 Seller is a party or by
which it or any of its property is bound.
(e) No Violation. The execution and delivery of this Agreement, the
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performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof will not conflict with or violate any
Requirements of Law applicable to Seller.
(f) No Proceedings. There are no proceedings or investigations pending or,
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to the best knowledge of Seller, threatened against Seller, before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Agreement, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement, (iii) seeking any determination or ruling that, in the reasonable
judgment of Seller, would materially and adversely affect the performance by
Seller of its obligations under this Agreement, (iv) seeking any determination
or ruling that would materially and adversely affect the validity or
enforceability of this Agreement or (v) seeking to impose income taxes on the
Issuer (other than as a wholly-owned subsidiary of Seller).
(g) All Consents Required. All approvals, authorizations, consents, orders
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or other actions of any Person or of any governmental body or official required
in connection with the execution and delivery of this Agreement, the performance
of the transactions contemplated by this Agreement, and the fulfillment of or
terms hereof, have been obtained.
(h) Bulk Sales. The execution, delivery and performance of this Agreement
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do not require compliance with any "bulk sales" law by Seller.
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(i) Solvency. The transactions under this Agreement do not and will not
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render Seller insolvent, nor have such transactions been entered into in
contemplation of the Seller's insolvency.
(j) Selection Procedures. No selection procedures believed by Seller to be
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materially adverse to the interests of the Issuer or the Noteholders were
utilized by Seller in selecting the Accounts.
The representations and warranties set forth in this Section 2.3 shall survive
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the transfer of the Trust Assets to the Issuer. Upon discovery by Seller, the
Servicer or the Owner Trustee of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others and any Enhancement Provider. Seller hereby
represents and warrants, with respect to any Series, as of the Closing Date with
respect to such Series, unless otherwise stated in the related Indenture
Supplement, that the representations and warranties of Seller set forth in this
Section 2.3 will be true and correct as of such date.
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Section 2.4 Representations and Warranties of Seller Relating to this
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Agreement and the Receivables.
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(a) Binding Obligation; Valid Transfer and Security Interest. Seller
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hereby represents and warrants to the Issuer that, as of the Initial Closing
Date and, with respect to any Series issued after the Initial Closing Date,
unless otherwise stated in the related Indenture Supplement, as of the Closing
Date for such Series:
(i) This Agreement constitutes a legal, valid and binding obligation
of Seller, enforceable against 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 at law or in equity).
(ii) This Agreement constitutes either (A) a valid transfer to the
Issuer of all right, title and interest of Seller in, to and under the
Trust Assets, and such property will be held by the Issuer free and clear
of any Lien of any Person claiming through or under Seller or its
Affiliates, except for (w) the interests of the FCMT Trustee, the Indenture
Trustee and the Noteholders, (x) Liens permitted under Section 2.5(b), (y)
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the Seller Interest and (z) Seller's right to receive interest accruing on,
and investment earnings in respect of, the Collection Account or any Series
Account as provided in the Transaction
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Documents or (B) a grant of a security interest in such property to the
Issuer, which is enforceable with respect to (i) upon execution and
delivery of this Agreement, the Collateral Certificate, all monies due or
to become due with respect thereto and other proceeds thereof, (ii) upon
the FCMT Termination Date, the then existing Receivables, all monies due or
to become due with respect thereto, the Collections, Recoveries and other
proceeds thereof, and Insurance Proceeds relating thereto and (iii)
thereafter, at the time new Receivables arise, with respect to such
Receivables, all monies due or to become due with respect thereto, and the
Collections, Recoveries and other proceeds thereof and Insurance Proceeds
relating thereto. If this Agreement constitutes the grant of a security
interest to the Issuer in such property, upon the filing of the financing
statements described in Section 2.1 and in the case of the Receivables
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hereafter arising in the Accounts and proceeds thereof and Insurance
Proceeds relating to such Receivables, as the same arise, the Issuer shall
have a first priority perfected security interest in such property, except
for Liens permitted under Section 2.5(b). Neither Seller nor any Person
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claiming through or under Seller shall have any claim to or interest in the
Collection Account, the Excess Funding Account or any Series Account,
except for Seller's right to receive interest accruing on, and investment
earnings in respect of, the Collection Account, the Excess Funding Account
or any Series Account, as provided in the Transaction Documents, Seller's
right to receive payments from the Collection Account or any Series Account
in accordance with the provisions of the Indenture, and, if this Agreement
constitutes the grant of a security interest in such property, except for
the interest of Seller in such property as a debtor for purposes of the UCC
as in effect in the State of Illinois.
(b) Eligibility of Receivables. As of the FCMT Termination Date, Seller
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agrees that all representations and warranties made by it with respect to any
Account or Receivable pursuant to Section 2.4 of the Pooling and Servicing
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Agreement shall be deemed for all purposes (including the reassignment
obligations under Section 2.4(e)) to have been made pursuant to this Agreement
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as of the day when each was made or deemed made, as if this Agreement had been
in effect on that day. Thereafter, each day on which any new Receivable is
transferred by Seller to the Issuer, Seller shall be deemed to represent and
warrant to the Issuer that (i) each Receivable transferred on such day is an
Eligible Receivable, (ii) each Receivable transferred on such day has been
transferred to the Issuer free and clear of any Lien of any Person (other than
Liens permitted under Section 2.5(b), the Seller Interest
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and Seller's right to receive interest accruing on, and investment earnings in
respect of, the Collection Account or any Series Account, as provided in the
Transaction Documents) and in compliance, in all material respects, with all
Requirements of Law applicable to 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 Seller in connection with the transfer of such
Receivable to the Issuer have been duly obtained, effected or given and are in
full force and effect and (iv) the representations and warranties set forth in
Section 2.4(a) are true and correct with respect to each Receivable transferred
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on such day as if made on such day.
(c) Notice of Breach. The representations and warranties set forth in this
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Section 2.4 shall survive the transfer of the respective Receivables to the
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Issuer. Upon discovery by Seller, the Servicer or the Owner Trustee of a breach
of any of the foregoing representations and warranties, the party discovering
such breach shall give prompt written notice to the others and any Enhancement
Provider.
(d) Reassignment of Ineligible Receivables.
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(i) Reassignment of Receivables. In the event any representation or
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warranty contained in Section 2.4(b) is not true and correct in any material
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respect as of the date specified therein with respect to any Receivable or the
related Account unless cured within sixty (60) days (or such longer period, not
in excess of 120 days, as may be agreed to by the Indenture Trustee) after the
earlier to occur of the discovery thereof by Seller or receipt by Seller of
written notice thereof given by the Owner Trustee, the Indenture Trustee or the
Servicer, then Seller shall accept reassignment of all Receivables in the
related Account ("Ineligible Receivables") on the terms and conditions set forth
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in paragraph (ii) below. Notwithstanding anything contained in this Section
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2.4(d) to the contrary, in the event of breach of any representation and
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warranty set forth in Section 2.4(b) with respect to any Receivable having been
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conveyed to the Issuer free and clear of any Lien of any Person claiming through
or under Seller and its Affiliates and in compliance in all material respects
with all Requirements of Law applicable to Seller, immediately upon the earlier
to occur of the discovery of such breach by Seller or receipt by Seller of
written notice of such breach given by the Owner Trustee, the Indenture Trustee
or the Servicer, Seller shall repurchase and the Owner Trustee shall convey,
without recourse, representation or warranty, all of the Owner Trustee's right,
title and interest in each Ineligible Receivable, and the Servicer shall
promptly notify the Rating Agencies of such event.
(ii) Price of Reassignment. The Servicer shall deduct the portion of such
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Ineligible Receivables reassigned to the Seller which are Principal Receivables
from
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the aggregate amount of the Principal Receivables used to calculate the Seller
Amount and the various Allocation Percentages. 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 Seller shall, on the date
of retransfer of such Ineligible Receivable, make a deposit in the Collection
Account (for allocation pursuant to the Indenture) in immediately available
funds in an amount equal to the Shortfall Amount. 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 Issuer shall
automatically and without further action be deemed to transfer, assign, set over
and otherwise convey to Seller or its designee, without recourse, representation
or warranty, all the right, title and interest of the Issuer 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 Issuer as collected in full as of the date on
which it was transferred. The obligation of Seller to accept reassignment of any
Ineligible Receivables conveyed to the Issuer by Seller, and to make the
deposits, if any, required to be made to the Collection Account as provided in
this Section, shall constitute the sole remedy respecting the event giving rise
to such obligation available to the Issuer, the Noteholders (or the Owner
Trustee on behalf of the Noteholders) or any Series Enhancer. The Issuer shall
execute such documents and instruments of transfer or assignment and take such
other actions as shall reasonably be requested and provided by the Seller to
effect the conveyance of such Ineligible Receivables pursuant to this Section
-------
2.4(d), but only upon receipt of an Officer's Certificate from Seller that
------
states that all conditions set forth in this Section 2.5 have been satisfied.
-----------
(e) Reassignment of Issuer Portfolio. If any representation or warranty of
--------------------------------
a Seller set forth in Section 2.4(a) is not true and correct in any material
--------------
respect and such breach has a material adverse effect on the Receivables or the
availability of the proceeds thereof to the Issuer (which determination shall be
made without regard to whether funds are then available pursuant to any Series
Enhancement), then either the Owner Trustee, the Indenture Trustee or the
Holders of Notes holding not less than 50% of the aggregate principal amount of
all Outstanding Notes, by notice then given to Seller and the Servicer (and to
the Owner Trustee and Indenture Trustee if given by the Noteholders), may direct
Seller to accept a reassignment of the Receivables conveyed to the Issuer by
Seller if such breach and any material adverse effect caused by such breach is
not cured within sixty (60) days of such notice (or within such longer period,
not in excess of 120 days, as may be specified in such notice), and upon those
conditions Seller shall be obligated to accept such reassignment on the terms
set forth below; provided, however, that the Receivables will not be reassigned
-------- -------
to Seller if, on any day prior to the end of such 60-day or longer period (i)
the relevant representation and warranty shall be true and correct in all
material respects as if made on such day and (ii) Seller shall have delivered to
the Owner Trustee a certificate of an authorized officer describing the nature
of such
10
breach and the manner in which the relevant representation and warranty has
become true and correct.
Seller shall 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 such reassignment
obligation arises, in payment for such reassignment, an amount equal to the sum
of the amounts specified therefor with respect to each outstanding Series in the
related Indenture Supplement. Notwithstanding anything to the contrary in this
Agreement, such amounts shall be distributed to the Noteholders on such
Distribution Date in accordance with the terms of each Indenture Supplement. If
the Owner Trustee, the Indenture Trustee or the Noteholders give notice
directing the Seller to accept a reassignment of the Receivables as provided
above, the obligation of Seller to accept such reassignment pursuant to this
Section 2.4(e) and to make the deposit required to be made to the Collection
--------------
Account as provided in this paragraph shall constitute the sole remedy
respecting an event of the type specified in the first sentence of this Section
-------
2.4(e) available to the Noteholders (or the Owner Trustee or Indenture Trustee
------
on behalf of the Noteholders) or any Series Enhancer. Upon reassignment of the
Receivables on such Distribution Date, the Issuer 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 Issuer in and to the Receivables and
Recoveries allocable to the Issuer, and all monies and amounts due or to become
due with respect thereto and all proceeds thereof. The Issuer 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.
Section 2.5. Covenants of Seller. Seller hereby covenants that:
-------------------
(a) Receivables to be General Intangibles or Accounts. Seller will take
-------------------------------------------------
no action to cause any Receivable to be characterized as anything other than a
"general intangible" or an "account" (as defined in the UCC as in effect in the
State of Illinois). Each Receivable shall be payable pursuant to a contract
which does not create a Lien on any goods purchased thereunder.
(b) Security Interests. Except for the transfers hereunder and under the
------------------
Transfer and Servicing Agreement, Seller will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to exist
any Lien on any Receivable, whether now existing or hereafter transferred to the
Issuer, or any interest therein. Seller will immediately notify the Owner
Trustee of the existence of any Lien on any Receivable; and Seller shall defend
the right, title and interest of the Issuer in, to and under the Receivables,
whether now existing or hereafter transferred to the Issuer, against all claims
of third parties; provided, however, that nothing in this Section 2.5(b) shall
-------- ------- --------------
prevent or be deemed to prohibit Seller from suffering to exist upon any of the
Receivables any Liens for state, municipal or other local taxes if such
11
taxes shall not at the time be due and payable or if 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;
provided further, however, that nothing in this Section 2.5(b) shall prevent or
-------- ------- ------- --------------
be deemed to prohibit Seller from granting a participation interest in the
Seller Interest.
(c) Account Allocations. If Seller is unable for any reason to transfer
-------------------
Receivables to the Issuer in accordance with the provisions of this Agreement
(including by reason of the occurrence of an Insolvency Event) then Seller
agrees that, solely for purposes of payments under this Agreement, it shall in
any such event allocate, after the occurrence of such event, payments on each
Account with respect to the principal balance of such Account first to the
oldest principal balance of such Account (it being understood that the foregoing
allocation does not affect, with respect to any obligor, the priority of
application of cardholder payments provided for in the related Cardholder
Agreement(s)) and to have such payments applied as Collections in accordance
with the Indenture. The parties hereto agree that Finance Charge Receivables,
whenever created, accrued in respect of Principal Receivables which have been
conveyed to the Issuer, or which would have been conveyed to the Issuer but for
the above described inability to transfer such Receivables, shall continue to be
a part of the Issuer notwithstanding any cessation of the transfer of additional
Principal Receivables to the Issuer and Collections with respect thereto shall
continue to be allocated and paid in accordance with the Indenture.
(d) Delivery of Collections. Seller agrees to pay to the Servicer (if the
-----------------------
Servicer is not then First Consumers National Bank) promptly (but in no event
later than two Business Days after receipt) all Collections received by Seller
in respect of the Receivables.
(e) Finance Charges and Other Fees. Seller agrees that, except as
------------------------------
otherwise required by any Requirement of Law or as is deemed by Seller to be
advisable for its MasterCard and VISA programs based on a good faith assessment
by Seller of the various factors impacting the use of its MasterCard and VISA
cards, Seller shall not reduce at any time (i) the Finance Charges assessed in
respect of any Accounts, or (ii) any other fees charged on any of the Accounts
if, as a result of such reduction, 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.
(f) Cardholder Agreements and Cardholder Guidelines. Seller agrees to
-----------------------------------------------
comply with and perform its obligations under the Cardholder Agreements relating
to the Accounts and the Cardholder Guidelines, except insofar as any failure so
to comply or conform would not materially and adversely affect the rights of the
Issuer or the Noteholders or 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
the
12
Servicer which have characteristics the same as, or substantially similar to,
the Accounts which are subject hereto (if any), Seller shall be free to change
the terms and provisions of such Cardholder Agreements or the Cardholder
Guidelines in any respect (including, without limitation, the calculation of the
amount, or the timing, of charge offs). FCNB shall provide to each Rating Agency
written notice of any such change that (i) 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.
(g) Sale Treatment. Seller agrees to treat the conveyance of Receivables
--------------
hereunder as a sale for accounting purposes.
Section 2.6. Addition of Accounts.
--------------------
(a) If, on any day after the FCMT Termination Date, the Aggregate
Principal Balance is less than the Minimum Aggregate Principal Balance, either
Seller or the Servicer (whichever shall first become aware of same) promptly
shall give the Owner Trustee written notice thereof, and as soon as practicable
(but in no event later than 10 days thereafter) Seller shall designate
additional Eligible Accounts ("Additional Accounts") to be included as Accounts
-------------------
and shall transfer the Receivables in such Additional Accounts to the Issuer, in
a sufficient amount so that the Aggregate Principal Balance on such day would
have, if the Receivables from such Additional Accounts had been transferred to
the Issuer on or prior to such day, at least equaled the Minimum Aggregate
Principal Balance.
(b) In addition to its obligation under Section 2.6(a), Seller may, but
--------------
shall not be obligated to, from time to time, designate Additional Accounts to
be included as Accounts, so long as after giving effect to such addition not
more than 20% of the Receivables, by outstanding balance, will be 30 or more
days delinquent (and for this purpose, Receivables in an Account shall be
considered delinquent if less than 100% of a required payment was received).
(c) Seller agrees that any Receivables from Additional Accounts shall be
transferred by Seller to the Issuer under Section 2.6(a), (b) or (e) upon and
-------------- --- ---
subject to the following conditions:
(i) On or before the fifth Business Day (the "Notice Date") prior to
-----------
the Addition Date in respect of Additional Accounts added pursuant to
Section 2.6(a) or (b), Seller shall give the Owner Trustee and the Servicer
-------------- ---
(if
13
a Person other than Seller) written notice that such Additional Accounts
will be included and specifying the approximate aggregate amount of the
Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in
Eligible Accounts, and (B) shall, if such designation of Additional
Accounts is made pursuant to Section 2.6(b) or (e) and if the addition of
-------------- ---
such Additional Accounts
(1) would cause the quotient (the "Annual Quotient") of (x) the
---------------
sum of the Annual Account Additions after giving effect to such
addition, plus the related Base Amount, divided by (y) the related
Base Amount to exceed 1.20, or
(2) would cause the quotient (the "Quarterly Quotient") of (x)
------------------
the sum of the Quarterly Account Additions after giving effect to such
addition plus the related Base Amount divided by (y) the related Base
Amount to exceed 1.15;
in either case, deliver a letter from each Rating Agency to the Indenture
Trustee by the Addition Date confirming that the Rating Agency Condition
has been satisfied with respect to the addition of such Additional
Accounts;
(iii) On or prior to the Addition Date, in respect of Additional
Accounts added pursuant to Section 2.6(a) or (b), Seller shall have
-------------- --
delivered to the Owner Trustee a written Assignment Agreement (including an
acceptance by the Owner Trustee on behalf of the Issuer for the benefit of
the Noteholders) in substantially the form of Exhibit A (the "Assignment
--------- ----------
Agreement") and shall have indicated in its books and records, including
---------
the computer files of the Receivables, that the Receivables created in
connection with the Additional Accounts have been transferred by Seller to
the Issuer; and shall have delivered to the Owner Trustee a computer file
or microfiche list containing a true and complete list of all 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 in respect of Additional
Accounts added pursuant to Section 2.6(a) or (b), which computer file or
-------------- ---
microfiche list shall be marked as Schedule 1 to the Assignment Agreement,
----------
delivered to the Owner Trustee as confidential and proprietary, shall be as
of the date of such Assignment Agreement and incorporated into and made a
part of such Assignment Agreement and this Agreement;
(iv) Seller shall be deemed to represent and warrant that (x) each
Additional Account is, as of the Addition Date, an Eligible Account, (y) no
selection procedures reasonably believed by Seller to be materially adverse
14
to the interests of the Noteholders were utilized in selecting the
Additional Accounts from the available Eligible Accounts, and (z) as of the
Addition Date, Seller is not insolvent and will not be rendered insolvent
by adding any such Additional Account;
(v) Seller shall be deemed to represent and warrant that, as of the
Addition Date, the Assignment Agreement constitutes either (x) a valid
transfer to the Issuer of all right, title and interest of Seller in, to
and under the Receivables then existing and thereafter arising in respect
of the Additional Accounts, all monies due or to become due with respect
thereto (including all Finance Charge Receivables), and all proceeds of
such Receivables and Insurance Proceeds relating thereto, and such property
will be owned by the Issuer free and clear of any Lien of any Person,
except for (i) Liens permitted under Section 2.5(b), (ii) the Seller
--------------
Interest and (iii) Seller's right to receive interest accruing on, and
investment earnings in respect of, the Collection Account or any Series
Account, as provided in this Agreement and any Indenture Supplement, or (y)
a grant of a security interest in such property to the Issuer, which is
enforceable with respect to then existing Receivables of the Additional
Accounts, all monies due or to become due with respect thereto, the
proceeds thereof and Recoveries and Insurance Proceeds relating thereto
upon the transfer of such Receivables to the Issuer, and which will be
enforceable with respect to the Receivables thereafter transferred in
respect of Additional Accounts, the proceeds thereof and Insurance Proceeds
relating thereto upon such transfer; and (z) if the Assignment Agreement
constitutes the grant of a security interest to the Issuer in such
property, upon the filing of a financing statement as described in Section
-------
2.1 with respect to such Additional Accounts and in the case of the
---
Receivables of Additional Accounts thereafter transferred and the proceeds
thereof, and Insurance Proceeds relating to such Receivables, upon such
transfer, the Issuer shall have a first priority perfected security
interest in such property, except for Liens permitted under Section 2.5(b),
--------------
the Seller Interest and Seller's right to receive interest accruing on, and
investment earnings in respect of, the Collection Account or any Series
Account, as provided in this Agreement and any Indenture Supplement;
(vi) Seller shall, on the Addition Date for Additional Accounts added
pursuant to Section 2.6(a) or (b), deliver a certificate of a Vice
-------------- ---
President or more senior officer confirming the items set forth in
paragraphs (ii), (iii), (iv) and (v) above; and
---- ----- ---- ---
(vii) Seller shall, on the Addition Date for Additional Accounts added
pursuant to Section 2.6(a) or (b), deliver an Opinion of Counsel with
-------------- ---
respect to the Receivables in the Additional Accounts to the Owner Trustee
substantially in the form of Exhibit F-2, and which shall be reasonably
-----------
acceptable to the Rating Agencies.
15
(d) Seller shall provide to each Rating Agency and to each Enhancement
Provider prior written notice each time Additional Accounts are added pursuant
to Section 2.6(a) or (b).
-------------- ---
(e) In addition to the occasional designation of Additional Accounts as
required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that
--------------- ---
each new MasterCard or VISA account originated in the normal course of Seller's
business after the FCMT Termination Date shall automatically be included as an
Account (and the Receivables arising thereunder automatically transferred to the
Issuer) effective on the date on which such account is created; provided,
--------
however, that such automatic inclusion and transfer shall not occur with respect
-------
to any such account if: (i) such account does not qualify as an Eligible
Account, (ii) the transfer to the Issuer of the Receivables in such Account, if
such Accounts had been designated by Seller pursuant to Section 2.6(b), would
--------------
have caused the limitations set forth in Section 2.6(c)(ii) to be exceeded
------------------
(unless there shall have been delivered to the Indenture Trustee a letter from
each Rating Agency confirming the Rating Agency Condition has been satisfied
with respect to the addition of such Additional Account), or (iii) Seller
otherwise designates such account as an account which is not to be included as
an Account pursuant to this Section 2.6(e). On or before the fifth Business Day
--------------
of each month next succeeding a calendar month in which Accounts were included
pursuant to the preceding sentence, Seller shall indicate in its computer files
of the receivables that the Receivables created in connection with such included
Accounts have been transferred to the Issuer. Seller, at its option, may, by
providing written notice to the Owner Trustee and the Servicer, terminate or
suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at
--------------
any time.
Section 2.7. Removal of Accounts.
-------------------
(a) Subject to the conditions set forth below, after the FCMT Termination
Date, Seller may designate from time to time Accounts no longer to be designated
for inclusion in the Issuer (the "Removed Accounts"); provided, however, that
---------------- -------- -------
Seller shall not make more than one such designation in any Monthly Period. On
or before the fifth Business Day (the "Removal Notice Date") prior to the date
-------------------
on which Removed Accounts shall be designated (the "Removal Date"), Seller shall
------------
give the Owner Trustee, the Servicer and each Enhancement Provider written
notice that the Receivables from such Removed Accounts are to be retransferred
to Seller.
(b) Seller shall be permitted to designate and require retransfer to it of
the Receivables from Removed Accounts only upon satisfaction of the following
conditions:
16
(i) If the Accounts to be removed have outstanding Receivables,
Seller shall satisfy the Rating Agency Condition with respect thereto by
such Removal Date;
(ii) on each Removal Date, the Owner Trustee shall deliver to Seller
a written Reassignment Agreement in substantially the form of Exhibit B
---------
(the "Reassignment Agreement") prepared by Seller, and Seller shall deliver
----------------------
to the Owner Trustee a computer file, microfiche or written list containing
a true and complete schedule identifying all Removed Accounts specifying
for each such Removed Account, as of the Removal Notice Date, its account
number and the Receivable balance thereof. Such computer file, microfiche
or written list shall be as of the date of such Reassignment Agreement
incorporated into and made a part of this Agreement;
(iii) Seller shall represent and warrant as of each Removal Date that
(A) the list of Removed Accounts, as of the Removal Notice Date, complies
in all material respects with the requirements of (ii) above; (B) Accounts
(or administratively convenient groups of Accounts, such as billing cycles)
were chosen for removal randomly or otherwise not on a basis intended to
select particular accounts or groups of accounts for any reason other than
administrative convenience, and no selection procedure used by Seller which
is adverse to the interests of the Noteholders was utilized in selecting
the Removed Accounts; and (C) as of the Removal Notice Date and as of the
Removal Date, Seller is not insolvent and such removal was not made in
contemplation of the Seller's insolvency;
(iv) The removal of any Receivables of any Removed Accounts on any
Removal Date shall not, in the reasonable belief of Seller, cause a Pay Out
Event to occur, or an event which with notice or lapse of time or both
would constitute a Pay Out Event;
(v) The Aggregate Principal Balance shall not be less than the
Minimum Aggregate Principal Balance after giving effect to such removal;
(vi) Seller shall have delivered to the Owner Trustee and to each
Enhancement Provider a certificate of an officer of
17
Seller confirming the items set forth in (i) through (v) above. The Owner
Trustee may conclusively rely on such certificate, shall have no duty to
make inquiries with regard to the matters set forth therein and shall incur
no liability in so relying; and
(vii) such other conditions and restrictions as may at any time be
specified in an Officer's Certificate of the Seller delivered to the Owner
Trustee shall have been satisfied, it being understood that (i) no such
additional conditions or restrictions may conflict with or override any of
the conditions and restrictions specified above, and (ii) upon delivery of
such an Officer's Certificate to the Owner Trustee, the additional
conditions and restrictions specified therein shall be deemed to be
incorporated by reference into and become a part of this Agreement.
Upon satisfaction of the above conditions, the Owner Trustee shall execute
and deliver the Reassignment Agreement to Seller, and the Receivables from the
Removed Accounts shall no longer constitute a part of the Issuer.
(d) On and after the FCMT Termination Date, on the date on which an
Account becomes a Defaulted Account, the Trust shall automatically and without
further action or consideration be deemed to transfer, set over, and otherwise
convey to the Seller, without recourse, representation or warranty, all the
right, title and interest of the Trust in and to the Receivables in such
Defaulted Account, all monies due or to become due with respect thereto, all
proceeds of such Receivables allocable to the Trust with respect to such
Receivable, excluding Recoveries relating thereto, which shall remain a part of
the Trust Assets.
Section 2.8. Discount Option. (a) Seller shall have the option to
---------------
designate at any time and from time to time a percentage or percentages, which
may be a fixed percentage or a variable percentage based on a formula (the
"Discount Percentage"), of all or any specified portion of Principal Receivables
-------------------
created after the Discount Option Date to be treated as Finance Charge
Receivables ("Discount Option Receivables"). Seller shall also have the option
---------------------------
of reducing or withdrawing the Discount Percentage, at any time and from time to
time, on and after such Discount Option Date. Seller shall provide to the
Servicer, the Owner Trustee and any Rating Agency 30 days' prior written notice
of the Discount Option Date, and such designation shall become effective on the
Discount Option Date (i) unless such designation in the reasonable belief of
Seller would cause a Pay Out Event with respect to any series to occur, or an
event
18
which, with notice or lapse of time or both, would constitute a Pay Out Event
with respect to any Series or (ii) unless the Rating Agency Condition shall not
have been satisfied with respect to such designation; provided that for this
--------
purpose Moody's shall not be deemed to be a "Rating Agency."
(b) After the Discount Option Date, Seller shall treat Discount Option
Receivable Collections as Collections of Finance Charge Receivables.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Prior to the FCMT Termination Date, the Receivables shall be serviced as
provided in the Pooling and Servicing Agreement, and this Article III will have
-----------
no effect. On and after the FCMT Termination Date:
Section 3.1. Acceptance of Appointment and Other Matters Relating to the
-----------------------------------------------------------
Servicer.
--------
(a) Seller agrees to act as the Servicer under this Agreement. The
Noteholders by their acceptance of the Notes consent to FCNB's acting as
Servicer.
(b) Subject to the provisions of this Agreement, the Servicer shall
service and administer the Receivables and shall collect payments due under the
Collateral Certificate and the Receivables in accordance with its customary and
usual servicing procedures for servicing credit card receivables comparable to
the Receivables and in accordance with the Cardholder Guidelines and shall have
full power and authority, acting alone or through any party properly designated
by it hereunder, to do any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing and subject to Section 7.1, the Servicer is hereby
-----------
authorized and empowered (i) unless such power and authority is revoked by the
Indenture Trustee on account of the occurrence of a Servicer Default pursuant to
Section 7.1, to make withdrawals from the Collection Account as set forth in
-----------
this Agreement, (ii) unless such power and authority is revoked by the Indenture
Trustee on account of the occurrence of a Servicer Default pursuant to Section
-------
7.1, to instruct the Indenture Trustee to make withdrawals and payments from the
---
19
Series Accounts in accordance with such instructions as set forth in this
Agreement, (iii) unless such power and authority is revoked by the Indenture
Trustee on account of the occurrence of a Servicer Default pursuant to Section
-------
7.1, to instruct the Indenture Trustee in writing as provided herein, and (iv)
---
unless such power and authority is revoked by the Indenture Trustee on account
of the occurrence of a Servicer Default pursuant to Section 7.1, to execute and
-----------
deliver, on behalf of the Issuer for the benefit of the Noteholders, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Receivables
and, after the delinquency of any Receivable and to the extent permitted under
and in compliance with applicable law and regulations, to commence enforcement
proceedings with respect to such Receivables. The Owner Trustee shall furnish
the Servicer with any powers of attorney and other documents necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder.
(c) If Seller is unable for any reason to transfer Receivables to the
Issuer in accordance with the provisions of this Agreement (including by reason
of the occurrence of an Insolvency Event), the Servicer agrees to allocate and
pay to the Issuer, after such date, all Collections as contemplated by Section
-------
2.5(c).
------
(d) The Servicer shall not be obligated to use separate servicing
procedures, offices, employees or accounts for servicing the Receivables from
the procedures, offices, employees and accounts used by the Servicer in
connection with servicing other credit card receivables.
(e) The Servicer shall maintain fidelity bond coverage insuring against
losses through wrongdoing of its officers and employees who are involved in the
servicing of credit card receivables.
Section 3.2. Servicing Compensation. As compensation for its servicing
----------------------
activities hereunder and reimbursement for its expenses as set forth in the
immediately following paragraph, the Servicer shall be entitled to receive a
monthly servicing fee in respect of any Monthly Period (or portion thereof)
prior to the termination of the Issuer pursuant to the Indenture (the "Monthly
-------
Servicing Fee"). The share of the Monthly Servicing Fee allocable to each Series
-------------
of Notes with respect to any Monthly Period (or portion thereof) shall be
payable on the related Distribution Date and, with respect to each Series
(unless provided in the related Indenture Supplement), shall be equal to the
20
amount specified in the related Indenture Supplement (the "Investor Monthly
----------------
Servicing Fee"). The share of the Monthly Servicing Fee allocable to the Holder
-------------
of the Seller Interest with respect to any Monthly Period (or portion thereof)
shall be equal to one-twelfth of the product of (A) Seller Amount minus the sum
of the Excess Funding Amount and the balance on deposit in the Principal
Collections Subaccount, and (B) the weighted average of the Servicing Fee Rates
with respect to each Series of Notes then outstanding (the "Monthly Seller
--------------
Servicing Fee"). The Monthly Servicing Fee shall equal the sum of (x) the
-------------
aggregate amount of Investor Monthly Servicing Fees with respect to each Series
then outstanding and (y) the Monthly Seller Servicing Fee. The Investor Monthly
Servicing Fee with respect to any Series is payable in arrears on the related
Distribution Date (unless otherwise provided in the related Indenture
Supplement) and the Monthly Seller Servicing Fee is payable in arrears no later
than the last Distribution Date with respect to any Series occurring in a
Monthly Period. The Monthly Seller Servicing Fee and, unless otherwise provided
in an Indenture Supplement, each Investor Monthly Servicing Fee, shall be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
The Servicer's expenses include the reasonable fees and disbursements of
independent accountants and all other expenses incurred by the Servicer in
connection with its activities hereunder; provided that the Servicer shall not
--------
be liable for any liabilities, costs or expenses of the Issuer, the Noteholders
or the Note Owners arising under any tax law, including any federal, state or
local income or franchise taxes or any other tax imposed on or measured by
income (or any interest or penalties with respect thereto or arising from a
failure to comply therewith). The Servicer shall be required to pay such
expenses for its own account and shall not be entitled to any payment therefor
other than the Monthly Servicing Fee.
Section 3.3. Representations; Warranties and Covenants of the Servicer.
---------------------------------------------------------
Seller, as initial Servicer, hereby makes, and any successor Servicer by its
appointment hereunder shall make, the following representations and warranties
and covenants on which the Owner Trustee has relied in accepting the Receivables
in trust and in authenticating Notes:
(a) Organization and Good Standing. The Servicer is duly organized, validly
------------------------------
existing and in good standing under the laws of its jurisdiction of
organization, and has full corporate power, authority and right to own its
properties and conduct its business as such properties are presently owned and
such business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
(b) Due Qualification. The Servicer is qualified as a foreign banking
-----------------
association or other entity in any state where it is required to be so qualified
to
21
service the Receivables as required by this Agreement and has obtained all
necessary licenses and approvals as required under federal and state law, in
each case, where the failure to be so qualified, licensed or approved, could
reasonably be expected materially and adversely to affect the ability of the
Servicer to comply with the terms of this Agreement.
(c) Due Authorization. The execution, delivery, and performance of this
-----------------
Agreement have been duly authorized by the Servicer by all necessary corporate
action on the part of the Servicer.
(d) Binding Obligation. This Agreement constitutes the legal, valid and
------------------
binding obligations of the Servicer, enforceable in accordance with its terms,
except as 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 proceeding at law or in equity).
(e) No Violation. The execution and delivery of this Agreement by the
------------
Servicer, and the performance of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof applicable to the Servicer, will not
conflict with, violate, 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 Requirements of Law applicable to the Servicer or any indenture,
contract, agreement, mortgage, deed of trust or other instrument to which the
Servicer is a party or by which it is bound.
(f) No Proceedings. There are no proceedings or investigations pending or,
--------------
to the best knowledge of the Servicer, threatened against the Servicer before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, seeking any determination or ruling
that, in the reasonable judgment of the Servicer, would materially and adversely
affect the performance by the Servicer of its obligations under this Agreement,
or seeking any determination or ruling that would materially and adversely
affect the validity or enforceability of this Agreement.
(g) Rescission and Cancellation. Other than pursuant to and in accordance
---------------------------
with the Cardholder Guidelines, the Servicer shall not rescind or cancel any
Receivable unless such rescission or cancellation shall have been ordered or
directed by a Governmental Authority.
(h) Other Actions. Other than pursuant to and in accordance with the
-------------
Cardholder Guidelines and as otherwise specifically permitted by this Agreement,
the Servicer shall not (i) take or fail to take any action if such action or
failure to act would impair the rights of the Issuer in any Receivable, or (ii)
revise or defer any payment due in respect of any Receivable.
22
Section 3.4. Reports and Records for the Indenture Trustee; Bank Account
-----------------------------------------------------------
Statements.
----------
(a) Daily Reports. On each Business Day, the Servicer shall prepare and
-------------
make available at the office of the Servicer for inspection by the Indenture
Trustee a record setting forth (i) the aggregate amount of Collections processed
by the Servicer on the preceding Business Day and (ii) the aggregate amount of
Receivables as of the close of business on the preceding Business Day.
(b) Monthly Servicer's Certificate. Unless otherwise stated in the related
------------------------------
Indenture Supplement with respect to any Series, on each Determination Date, the
Servicer shall forward to the Indenture Trustee, the Paying Agent, any Rating
Agency and any Enhancement Provider a certificate of a Servicing Officer
substantially in the form of Exhibit C.
---------
Section 3.5. Annual Servicer's Certificate. Unless the Servicer has been
-----------------------------
relieved of all of its obligations under this Agreement because the final Series
has been repaid during the prior calendar year, the Servicer will deliver to the
Indenture Trustee, any Enhancement Provider and any Rating Agency on or before
April 30 of each calendar year, beginning with April 30, 2002, an Officer's
Certificate substantially in the form of Exhibit D stating that (a) a review of
---------
the activities of the Servicer during the preceding calendar year (or, with
respect to the certificate to be delivered on April 30, 2002, since the Issuer's
inception) and of its performance under this Agreement was made under the
supervision of the officer signing such certificate and (b) to the best of such
officer's knowledge, based on such review, the Servicer has fully performed all
its obligations under this Agreement throughout such period, or, if there has
been a default in the performance of any such obligation, specifying each such
default known to such officer and the nature and status thereof. A copy of such
certificate may be obtained by any Noteholder by a request in writing to the
Indenture Trustee addressed to the Corporate Trust Office.
Section 3.6. Annual Independent Public Accountants' Servicing Report.
-------------------------------------------------------
(a) Unless the Servicer has been relieved of all of its obligations under
this Agreement because the final Series has been repaid during the prior
calendar year, on or before April 30 of each calendar year after the year during
which the FCMT Termination Date occurs, the Servicer shall cause KPMG Peat
Marwick or another firm of nationally recognized independent public accountants
(who may also render other services to the Servicer or Seller) to furnish a
report covering the preceding annual period to the effect that such accountants
have applied certain agreed-upon procedures to certain documents and records
relating to the servicing of Accounts under this Agreement (and Pooling and
Servicing Agreement, if applicable), compared the
23
information contained in the Servicer's certificates (excluding Servicer's
certificates for any Series that has been repaid during the prior calendar year)
delivered during the period covered by such report (which shall be the period
from January 1, to and including December 31 of such calendar year) with such
documents and records in each case as specified in Exhibit E and that no matters
---------
came to the attention of such accountants that caused them to believe that such
servicing was not conducted in compliance with Sections 3.1 and of this
------------
Agreement and Article VIII of the Indenture, except for such exceptions as such
accountants shall believe to be immaterial and such other exceptions as shall be
set forth in such statement. In addition, each report shall set forth the
agreed-upon procedures performed. A copy of such report may be obtained by any
Noteholder by a request in writing to the Indenture Trustee addressed to the
Corporate Trust Office. In addition, the Servicer shall cause such accountants
to furnish a copy of such report to each Rating Agency and to each Enhancement
Provider.
(b) On or before April 30 of each calendar year, beginning with April 30,
2002, the Servicer shall cause KPMG Peat Marwick or another firm of nationally
recognized independent public accountants (who may also render other services to
the Servicer or Seller) to furnish a report to the Indenture Trustee to the
effect that they have compared the mathematical calculations of each amount set
forth in the monthly certificates forwarded by the Servicer pursuant to Section
-------
3.4(b) during the period covered by such report (which shall be the period from
------
January 1, to and including December 31 of such calendar year) with the
Servicer's computer reports which were the source of such amounts and that on
the basis of such comparison, such accountants are of the opinion that such
amounts are in agreement, except for such exceptions as they believe to be
immaterial and such other exceptions as shall be set forth in such statement. A
copy of such report may be obtained by any Noteholder by a request in writing to
the Owner Trustee addressed to the Corporate Trust Office. In addition, the
Servicer shall cause such accountants to furnish a copy of such report to each
Rating Agency and to each Enhancement Provider.
Section 3.7. Tax Treatment. Seller has structured this Agreement and the
-------------
Notes to facilitate a secured, credit-enhanced financing on favorable terms with
the intention that the Notes will constitute indebtedness of Seller for federal
income and state and local tax purposes; and Seller and each Noteholder by
acceptance of its Note agrees to recognize and report the Notes as indebtedness
of
24
Seller for purposes of federal, state and local income or franchise taxes and
any other tax imposed on or measured by income, and to report all receipts and
payments relating thereto in a manner that is consistent with such
characterization.
Section 3.8. Notices to Seller. In the event that Seller is no longer
-----------------
acting as Servicer, any Successor Servicer appointed pursuant to Section 7.2
-----------
shall deliver or make available to Seller each certificate and report required
to be prepared, forwarded or delivered thereafter pursuant to Sections 3.4, 3.5
------------ ---
and 3.6.
---
Section 3.9. Reports to the Commission. The Servicer shall, on behalf of
-------------------------
the Issuer, cause to be filed with the Commission any periodic reports required
to be filed under the provisions of the Securities Exchange Act of 1934, and the
rules and regulations of the Commission thereunder. Seller shall, at its own
expense, cooperate in any reasonable request of the Servicer in connection with
such filings. The Issuer agrees to cooperate with the Servicer in connection
with such filings.
ARTICLE IV
OTHER MATTERS RELATING TO SELLER
Section 4.1. Liability of Seller. Seller shall be liable in accordance
-------------------
herewith to the extent, and only to the extent, of the obligations specifically
undertaken by Seller hereunder.
Section 4.2. Merger or Consolidation of, or Assumption of the Obligations
------------------------------------------------------------
of, Seller etc.
---------------
(a) 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 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
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
Owner Trustee, in form satisfactory to the Owner Trustee, the performance
of every covenant and obligation of Seller, as applicable
25
hereunder, and shall benefit from all the rights granted to Seller, as
applicable hereunder. To the extent that any right, covenant or obligation
of 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. In furtherance hereof, in applying
this Section 4.2 to a successor entity, Section 6.1 hereof shall be applied
----------- -----------
by reference to events of involuntary liquidation, receivership or
conservatorship applicable to such successor entity as such be set forth in
the officer's certificate described in Section 4.2(a)(ii);
------------------
(ii) Seller shall have delivered to the Indenture Trustee an
Officer's Certificate of Seller and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance or transfer and such
supplemental agreement comply with this Section 4.2 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 Seller;
and
(iii) Seller shall have delivered notice of such consolidation,
merger, conveyance or transfer to each Rating Agency;
it being understood that a sale, transfer, assignment, participation, pledge or
other disposition of the Seller Interest or the issuance of a Supplemental
Certificate permitted by Section 3.4 of the Trust Agreement shall not be deemed
to be a conveyance or transfer of the Seller's property substantially as an
entirety for purposes of this Section 4.2.
-----------
(b) The obligations of Seller hereunder shall not be assignable nor shall
any Person succeed to the obligations of Seller hereunder except for mergers,
consolidations, assumptions or transfers in accordance with the provisions of
the foregoing paragraph.
Section 4.3. Limitation on Liability of Seller. Neither Seller nor any of
---------------------------------
the directors or officers or employees or agents of Seller shall be under any
liability to the Issuer, the Owner Trustee, the Noteholders or any other Person
for any action taken or for refraining from the taking of any action pursuant to
this Agreement whether arising from express or implied duties under this
Agreement; provided, however, that this provision shall not protect Seller or
-------- -------
any such person against any liability which would otherwise be imposed by reason
of willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of its willful misconduct hereunder; and provided, further,
-------- -------
that Seller shall be liable for any actual damages resulting directly from
Seller's material failure to perform any of its obligations under this
Agreement, but only if and to the extent that another remedy is not provided for
and available hereunder. Seller and any director or officer or
26
employee or agent of Seller may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder.
ARTICLE V
OTHER MATTERS RELATING TO THE SERVICER
Section 5.1. Liability of the Servicer. The Servicer shall be liable in
-------------------------
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer in such capacity herein.
Section 5.2. Merger or Consolidation of, or Assumption of the Obligations
------------------------------------------------------------
of, the Servicer. The Servicer 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:
(a) the Person formed by such consolidation or into which the
Servicer is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Servicer substantially as an entirety
shall be a corporation or a banking association organized and existing
under the laws of the United States of America or any State or the
District of Columbia and, if the Servicer is not the surviving entity,
shall expressly assume, by an agreement supplemental hereto, executed and
delivered to the Owner Trustee in form satisfactory to the Owner Trustee,
the performance of every covenant and obligation of the Servicer
hereunder;
(b) the Servicer has delivered to the Indenture Trustee and each
Enhancement Provider an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation, merger, conveyance or transfer and
such supplemental agreement comply with this Section 5.2 and that all
-----------
conditions precedent herein provided for relating to such transaction have
been complied with; and
(c) the Servicer shall have delivered notice of such
consolidation, merger, conveyance or transfer to each of the Rating
Agencies;
it being understood that a sale, transfer, assignment, participation, pledge or
other disposition of the Seller Interest or the issuance of a Supplemental
Certificate permitted by Section 3.4 of the Trust Agreement shall not be deemed
to be a conveyance or transfer of the Servicer's property substantially as an
entirety for purposes of this Section 5.2.
-----------
Section 5.3. Limitation on Liability of the Servicer and Others. Except
--------------------------------------------------
as provided in Section 5.4 with respect to the Issuer and the Owner Trustee and
-----------
Section
27
6.7 of the Indenture with respect to the Indenture Trustee, neither the Servicer
nor any of the directors or officers or employees or agents of the Servicer
shall be under any liability to the Issuer, the Owner Trustee, the Indenture
Trustee, the Noteholders or any other Person for any action taken or for
refraining from the taking of any action in its capacity as Servicer pursuant to
this Agreement; provided, however, that this provision shall not protect the
-------- -------
Servicer or any such Person against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of its willful misconduct hereunder. The
Servicer and any director or officer or employee or agent of the Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Servicer
shall not be under any obligation to appear in, prosecute or defend any legal
action which does not arise out of its activities in servicing the Receivables
in accordance with this Agreement which in its reasonable opinion may involve it
in any expense or liability.
Section 5.4. Indemnification of the Issuer and the Owner Trustee. The
---------------------------------------------------
Servicer shall indemnify, defend and hold harmless the Issuer and the Owner
Trustee and its officers, directors, employees and agents from and against any
loss, liability, expense, damage or injury suffered or sustained by reason of
any acts, omissions or alleged acts or omissions arising out of activities of
the Issuer or the Owner Trustee pursuant to the Transaction Documents, including
those arising from acts or omissions of the Servicer pursuant to this Agreement,
including, but not limited to any judgment, award, settlement, reasonable
attorneys' fees and other costs or expenses incurred in connection with the
defense of any actual or threatened action, proceeding or claim; provided,
--------
however, that the Servicer shall not indemnify the Issuer or the Owner Trustee
-------
if such acts, omissions or alleged acts or omissions constitute fraud, gross
negligence or breach of fiduciary duty by the Owner Trustee; provided further,
-------- -------
that the Servicer shall not indemnify the Issuer, any Noteholders or any Note
Owners for any liabilities, costs or expenses of the Issuer with respect to any
action taken by the Indenture Trustee at the request of such Noteholders;
provided further, that the Servicer shall not indemnify the Issuer, any
-------- -------
Noteholders or any Note Owners as to any losses, claims or damages incurred by
any of them in their capacities as investors, including losses incurred as a
result of defaulted Receivables or Receivables which are written off as
uncollectible; and provided further, that the Servicer shall not indemnify the
-------- -------
Issuer, or any Noteholders for any liabilities, costs or expenses of the Issuer,
or such Noteholders arising under any tax law, including any federal, state or
local income or franchise taxes or any other tax imposed on or measured by
income (or any interest or penalties with respect thereto or arising from a
failure to comply therewith) required to be paid by the Issuer, or such
Noteholders in connection herewith to any taxing authority. The provisions of
this indemnity shall run directly to and be enforceable by an injured party
subject to the limitations hereof.
28
Any indemnification pursuant to this Section shall not be payable from the
assets of the Issuer.
The obligations of the Servicer under this Section 5.4 shall survive the
-----------
termination of the Issuer and the resignation or removal of the Owner Trustee.
The Servicer shall indemnify the Indenture Trustee as provided in Section
6.7 of the Master Indenture.
Section 5.5. The Servicer Not to Resign. The Servicer shall not resign
--------------------------
from the obligations and duties hereby imposed on it except upon determination
that (i) the performance of its duties hereunder is or becomes impermissible
under applicable law and (ii) there is no reasonable action which the Servicer
could take to make the performance of its duties hereunder permissible under
applicable law. Any such determination permitting the resignation of the
Servicer shall be evidenced as to clause (i) by an Opinion of Counsel to such
----------
effect delivered to the Indenture Trustee. No such resignation shall become
effective until the Indenture Trustee or a Successor Servicer shall have assumed
the responsibilities and obligations of the Servicer in accordance with Section
-------
7.2. If the Indenture Trustee is unable within 120 days of the date of such
---
determination to appoint a Successor Servicer, the Indenture Trustee shall serve
as Successor Servicer hereunder. Notice of any resignation by the Servicer
shall be given to each Rating Agency by the resigning Servicer.
Section 5.6. Access to Certain Documentation and Information Regarding
---------------------------------------------------------
the Receivables. The Servicer shall provide to the Indenture Trustee access to
---------------
the documentation regarding the Accounts and the Receivables in such cases where
the Indenture Trustee is required in connection with the enforcement of the
rights of the Noteholders, or by applicable statutes or regulations to review
such documentation, such access being afforded without charge but only (i) upon
reasonable request, (ii) during normal business hours, (iii) subject to the
Servicer's normal security and confidentiality procedures and (iv) at offices
designated by the Servicer. Nothing in this Section 5.6 shall derogate from the
-----------
obligation of Seller, the Indenture Trustee or the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors and
the failure of the Servicer to provide access as provided in this Section 5.6 as
-----------
a result of such obligation shall not constitute a breach of this Section 5.6.
-----------
Section 5.7. Delegation of Duties. It is understood and agreed by the
--------------------
parties hereto that the Servicer may delegate certain of its duties hereunder to
Total Systems Services, Inc., a Georgia
29
corporation and to First Data Resources Inc., a Delaware corporation. In
addition, in the ordinary course of business, the Servicer may at any time
delegate any duties hereunder to any other Person who agrees to conduct such
duties in accordance with the Cardholder Guidelines. Any such delegations shall
not relieve the Servicer of its liability and responsibility with respect to
such duties, and shall not constitute a resignation within the meaning of
Section 5.5. The Servicer shall notify each Rating Agency of any material
-----------
delegation of its duties not consistent with its normal practices as of the date
hereof.
Section 5.8. Examination of Records. The Servicer shall clearly and
----------------------
unambiguously identify each Account (including any Additional Account designated
pursuant to Section 2.6) in its computer or other records to reflect that the
-----------
Receivables arising in such Account have been transferred by Seller to the
Issuer pursuant to this Agreement. The Servicer shall, prior to the sale or
transfer to a third party of any receivable held in its custody, examine its
computer and other records to determine that such receivable is not a
Receivable.
ARTICLE VI
INSOLVENCY EVENTS
Section 6.1. Rights upon the Occurrence of an Insolvency Event. If Seller
-------------------------------------------------
shall consent or fail to object to the appointment of a bankruptcy trustee or
conservator, receiver or liquidator in any bankruptcy proceeding or other
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to Seller of or relating to all or
substantially all of Seller's property, or the commencement of an action seeking
a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a bankruptcy trustee or
conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the winding-
up, insolvency, bankruptcy, reorganization, conservatorship, receivership or
liquidation of such entity's affairs, or notwithstanding an objection by Seller
any such action shall have remained undischarged or unstayed for a period of
sixty (60) days or upon entry of any order or decree providing for such relief;
or Seller shall admit in writing its inability to pay its debts generally as
they become due, file, or consent or fail to object (or object without dismissal
of any such filing within sixty (60) days of such filing) to the filing of, a
petition to take advantage of any Debtor Relief Law, make an assignment for the
benefit of its creditors (any such act or occurrence with respect to any Person
being an "Insolvency Event"), Seller shall on the day any such Insolvency Event
----------------
occurs immediately cease to transfer Principal Receivables to the Issuer and
shall promptly give notice to the Indenture Trustee, the Owner Trustee and the
Rating Agencies thereof.
30
ARTICLE VII
SERVICER DEFAULTS
Section 7.1. Servicer Defaults. If any one of the following events (a
-----------------
"Servicer Default") shall occur and be continuing after the FCMT Termination
-----------------
Date:
(a) any failure by the Servicer to make any payment, transfer or
deposit or to give instructions or notice to the Indenture Trustee to make such
payment, transfer or deposit or to make any required drawing, withdrawal, or
payment under any Enhancement required to be made by the Servicer on or before
the date occurring five Business Days after the date such payment, transfer,
deposit, withdrawal or drawing, or such instruction or notice is required to be
made or given by the Servicer, as the case may be, under the terms of this
Agreement, the Indenture or any Indenture Supplement; or
(b) failure on the part of the Servicer duly to observe or perform in
any material respect any other covenants or agreements of the Servicer set forth
in this Agreement which has a material adverse effect on the Noteholders, which
continues unremedied for a period of 60 days after the date on which written
notice of such failure requiring the same to be remedied shall have been given
to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture
Trustee by the Noteholders holding not less than 10% of the outstanding
principal amount of any Series adversely affected thereby and continues to
materially adversely affect such Noteholders for such period; or the Servicer's
delegation of its duties under this Agreement except as permitted by Section
-------
5.7; or
---
(c) any representation, warranty or certification made by the
Servicer in this Agreement or in any certificate delivered pursuant to this
Agreement shall prove to have been incorrect when made, which has a material
adverse effect on the rights of the Noteholders and which continues to be
incorrect in any material respect for a period of 60 days after the date on
which written notice of such failure requiring the same to be remedied shall
have been given to the Servicer by the Indenture Trustee, or to the Servicer and
the Indenture Trustee by the Noteholders holding not less than 10% of the
outstanding principal amount of any Series adversely affected thereby and
continues to materially adversely affect such Noteholders for such period, or if
such failure cannot be cured within such 60-day period owing to causes beyond
the control of the Servicer, if the Servicer shall fail to proceed promptly to
cure the same and prosecute the curing of such failure with diligence and
continuity;
31
(d) the Servicer 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, or (iv)
become a party to (or be made the subject of) any proceeding provided for
by any Debtor Relief Law, other than as a creditor or claimant, and, in the
event such proceeding is involuntary, the petition instituting same is not
dismissed within 60 days after its filing; or
(e) with respect to any Series, any other event specified in the
Indenture Supplement for such Series,
then, so long as such Servicer Default shall not have been remedied, either the
Indenture Trustee, or the Noteholders holding more than 50% of the Outstanding
Amount, by notice then given in writing to the Servicer (and to the Indenture
Trustee if given by the Noteholders) (a "Termination Notice"), may terminate all
------------------
of the rights and obligations of the Servicer as Servicer under this Agreement
and in and to the Receivables and the proceeds thereof (other than its rights
and interest, if any, as holder of the Seller Interest or any Notes). After
receipt by the Servicer of such Termination Notice, and on the date that a
Successor Servicer shall have been appointed by the Indenture Trustee pursuant
to Section 7.2, all authority and power of the Servicer under this Agreement
-----------
shall pass to and be vested in a Successor Servicer; and the Indenture Trustee
is hereby authorized and empowered (upon the failure of the Servicer to
cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-
fact or otherwise, all documents and other instruments upon the failure of the
Servicer to execute or deliver such documents or instruments, and to do and
accomplish all other acts or things necessary or appropriate to effect the
purposes of such transfer of servicing rights. The Servicer agrees to cooperate
with the Indenture Trustee and such Successor Servicer in effecting the
termination of the responsibilities and rights of the Servicer to conduct
servicing hereunder, including the transfer to such Successor Servicer of all
authority of the Servicer to service the Receivables provided for under this
Agreement, including all authority over all Collections which shall on the date
of transfer be held by the Servicer for deposit, or which have been deposited by
the Servicer, in any Collection Account or Series Account, or which shall
thereafter be received with respect to the Receivables, and in assisting the
Successor Servicer and in enforcing all rights to Insurance Proceeds. The
Servicer shall promptly transfer its electronic records relating to the
Receivables to the Successor Servicer in such electronic form as the Successor
Servicer may reasonably request and shall promptly transfer to the Successor
Servicer all other records, correspondence and documents necessary for the
continued servicing of the Receivables in the
32
manner and at such times as the Successor Servicer shall reasonably request. To
the extent that compliance with this Section 7.1 shall require the Servicer to
-----------
disclose to the Successor Servicer information of any kind which the Servicer
reasonably deems to be confidential, the Successor Servicer shall be required to
enter into such customary licensing and confidentiality agreements as the
Servicer shall deem necessary to protect its interest. The Servicer shall, on
the date of any servicing transfer, transfer all of its rights and obligations,
if any, in respect of any Enhancement to the Successor Servicer.
Section 7.2. Indenture Trustee to Act; Appointment of Successor. (a) On
--------------------------------------------------
and after the receipt by the Servicer of a Termination Notice pursuant to
Section 7.1, the Servicer shall continue to perform all servicing functions
-----------
under this Agreement until the date specified in the Termination Notice or
otherwise specified by the Indenture Trustee in writing or, if no such date is
specified in such Termination Notice or otherwise specified by the Indenture
Trustee, until a date mutually agreed upon by the Servicer and the Indenture
Trustee. The Indenture Trustee shall as promptly as possible after the giving of
a Termination Notice appoint (with the consent of the Noteholders holding
greater than 50% of the outstanding principal amount of each Series, and with
prior written notice to the Rating Agencies) a successor servicer (the
"Successor Servicer"), and such Successor Servicer shall accept its appointment
-------------------
by a written assumption in a form acceptable to the Indenture Trustee. The
Indenture Trustee may obtain bids from any potential successor servicer. If the
Indenture Trustee is unable to obtain any bids from any potential successor
servicer and the Servicer delivers an Officer's Certificate to the effect that
it cannot in good faith cure the Servicer Default which gave rise to a transfer
of servicing, then the Owner Trustee shall offer Seller the right to accept
retransfer of all the Receivables and Seller may accept retransfer of all the
Receivables, provided, however, that if the long-term unsecured debt obligations
-------- -------
of Seller are not rated at the time of such purchase at least Baa3 by Moody's
and BBB- by Standard & Poor's, no such retransfer shall occur unless Seller
shall deliver an Opinion of Counsel reasonably acceptable to the Indenture
Trustee that such retransfer would not constitute a fraudulent conveyance of
Seller. The retransfer deposit amount for such a retransfer shall be equal to
the higher of the sum of (i) the outstanding principal balance of the Notes,
plus accrued interest thereon, at the Note Rate, through the date of retransfer
and (ii) the average bid price quoted by two recognized dealers for a similar
security rated in the highest rating category by Moody's and Standard & Poor's
and having a remaining maturity substantially similar to the remaining maturity
of the Notes.
33
In the event that a Successor Servicer has not been appointed and has not
accepted its appointment at the time when the Servicer ceases to act as
Servicer, the Indenture Trustee without further action shall automatically be
appointed the Successor Servicer. Notwithstanding the above, the Indenture
Trustee shall, if it is legally unable so to act, petition a court of competent
jurisdiction to appoint any established financial institution having a net worth
of not less than $50,000,000 and whose regular business includes the servicing
of installment sales charge, credit and/or credit card account receivables as
the Successor Servicer hereunder. Notwithstanding anything else herein to the
contrary, in no event shall the Indenture Trustee be liable for any servicing
fee.
(b) Upon its appointment, the Successor Servicer shall be the successor in
all respects to the Servicer with respect to servicing functions under this
Agreement and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof, and all references in this Agreement to the Servicer shall be deemed to
refer to the Successor Servicer. Any Successor Servicer, by its acceptance of
its appointment, will automatically agree to be bound by the terms and
provisions of any Enhancement to the extent that such terms apply to the
Servicer. Any sub-servicing agreement shall be assigned to the Successor
Servicer.
(c) In connection with such appointment and assumption, the Indenture
Trustee shall be entitled to such compensation, or may make such arrangements
for the compensation of the Successor Servicer out of Collections, as it and
such Successor Servicer shall agree; provided, however, that no such
-------- -------
compensation shall be in excess of the Monthly Servicing Fees permitted to the
Servicer pursuant to Section 3.2. The Holder of the Seller Interest agrees that
-----------
if the Servicer is terminated hereunder, it will agree, at the request of the
Indenture Trustee or any Successor Servicer, to deposit a portion of the
Collections in respect of Finance Charge Receivables that it is entitled to
receive pursuant to the Indenture, to pay its share of the compensation of the
Successor Servicer. The Successor Servicer shall have no liability for any
actions or failure to act on the part of the Servicer.
(d) All authority and power granted to the Successor Servicer under this
Agreement shall automatically cease and terminate upon termination of the Issuer
pursuant to the Trust Agreement and shall pass to and be vested in Seller and,
Seller is
34
hereby authorized and empowered to execute and deliver, on behalf of the
Successor Servicer, as attorney-in-fact or otherwise, all documents and other
instruments, and to do and accomplish all other acts or things necessary or
appropriate to effect the purposes of such transfer of servicing rights. The
Successor Servicer agrees to cooperate with Seller in effecting the termination
of the responsibilities and rights of the Successor Servicer to conduct
servicing on the Receivables. The Successor Servicer shall transfer its
electronic records relating to the Receivables to Seller in such electronic form
as Seller may reasonably request and shall transfer all other records,
correspondence and documents to Seller in the manner and at such times as Seller
shall reasonably request. To the extent that compliance with this Section 7.2
-----------
shall require the Successor Servicer to disclose to Seller information of any
kind which the Successor Servicer deems to be confidential, Seller shall be
required to enter into such customary licensing and confidentiality agreements
as the Successor Servicer shall deem necessary to protect its interests.
Section 7.3. Notification to Noteholders. Upon the occurrence of any
---------------------------
Servicer Default, the Servicer shall give prompt written notice thereof to a
Trustee Officer of the Indenture Trustee and the Indenture Trustee shall give
notice to the Noteholders at their respective addresses appearing in the Note
Register. Upon any termination or appointment of a Successor Servicer pursuant
to this Article VII, the Indenture Trustee shall give prompt written notice
-----------
thereof to Noteholders at their respective addresses appearing in the Note
Register. A copy of any notice given pursuant to this Section 7.3 shall be
-----------
delivered to each Rating Agency.
ARTICLE VIII
TERMINATION
Section 8.1. Termination of Agreement. This Agreement and the respective
------------------------
obligations and responsibilities of the Issuer, Seller and the Servicer under
this Agreement shall terminate, except with respect to the duties described in
Section 5.4, on the Trust Termination Date.
-----------
35
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1. Amendment; Waiver of Past Defaults.
----------------------------------
(a) This Agreement may be amended from time to time by the Servicer, Seller
and the Issuer, without the consent of any of the Indenture Trustee or any
Noteholder to cure any ambiguity, to correct or supplement any provisions herein
which may be inconsistent with any other provisions herein or to add any other
provisions with respect to matters or questions raised under this Agreement
which shall not be inconsistent with the provisions of this Agreement; provided,
--------
however, that such action shall not adversely affect in any material respect the
-------
interests of any of the Noteholders. Additionally, this Agreement may be
amended from time to time by the Servicer, the Seller and the Issuer by a
written instrument signed by each of them, without the consent of the Indenture
Trustee or any of the Noteholders; provided that (i) Seller shall have delivered
--------
to the Indenture Trustee and the Owner Trustee an Officer's Certificate, dated
the date of any such Amendment, stating that Seller reasonably believes that
such amendment will not have an Adverse Effect and (ii) the Rating Agency
Condition shall have been satisfied with respect to any such amendment.
Additionally, notwithstanding the preceding sentence, this Agreement will be
amended by the Servicer and the Issuer at the direction of Seller without the
consent of the Indenture Trustee or any of the Noteholders or Series Enhancers
to add, modify or eliminate such provisions as may be necessary or advisable in
order to enable all or a portion of the Issuer (1) to qualify as, and to permit
an election to be made to cause the Issuer to be treated as, a "financial asset
securitization investment trust" as described in the provisions of Section 860L
of the Code, and (2) to avoid the imposition of state or local income or
franchise taxes imposed on the Issuer's property or its income; provided,
--------
however, that (A) Seller delivers to the Indenture Trustee and the Owner Trustee
-------
an Officer's Certificate to the effect that the proposed amendments meet the
requirements set forth in this Section, (B) the Rating Agency Condition has been
satisfied, and (C) such amendment does not affect the rights, duties or
obligations of the Indenture Trustee or the Owner Trustee hereunder. The
amendments which Seller may make without the consent of Noteholders or Series
Enhancers pursuant to the preceding sentence may include the addition of a
Seller.
(b) This Agreement may also be amended from time to time by the Servicer,
Seller and the Issuer, with the consent of the Noteholders holding more than 66
2/3% of the Outstanding principal amount of the Notes of each Series affected
thereby for which Seller has not delivered an Officer's Certificate stating that
there is no Adverse Effect, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders; provided, however,
-------- -------
that no such amendment shall (i) reduce in any manner the amount of or delay the
timing of any distributions
36
(changes in Pay Out Events or Events of Default that decrease the likelihood of
the occurrence thereof shall not be considered delays in the timing of
distributions for purposes of this clause) to be made to Noteholders or deposits
of amounts to be so distributed or the amount available under any Series
Enhancement without the consent of each affected Noteholder, (ii) change the
definition of or the manner of calculating the interest of any Noteholder
without the consent of each affected Noteholder or (iii) reduce the aforesaid
percentage required to consent to any such amendment without the consent of each
Noteholder or (iv) adversely affect the rating of any Series or Class by any
Rating Agency without the consent of the Noteholders of such Series or Class
holding more than 66 2/3% of the Outstanding principal amount of the Notes of
such Series or Class affected thereby.
(c) Promptly after the execution of any such amendment or consent (other
than an amendment pursuant to paragraph (a)), the Issuer shall furnish
notification of the substance of such amendment to the Indenture Trustee and
each Noteholder, and the Servicer shall furnish notification of the substance of
such amendment to each Rating Agency and each Series Enhancer.
(d) It shall not be necessary for the consent of Noteholders under this
Section 9.1 to approve the particular form of any proposed amendment, but it
-----------
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Noteholders shall be subject to such reasonable
requirements as the Indenture Trustee may prescribe.
(e) Notwithstanding anything in this Section 9.1 to the contrary, no
-----------
amendment may be made to this Agreement which would adversely affect in any
material respect the interests of any Series Enhancer without the consent of
such Series Enhancer.
(f) Any Indenture Supplement executed in accordance with the provisions of
Article X of the Indenture shall not be considered an amendment of this
---------
Agreement for the purposes of this Section 9.1.
-----------
(g) The Noteholders holding 66 2/3% or more of the Outstanding principal
amount of the Notes of each Series or, with respect to any Series with two (2)
or more Classes, of each Class (or, with respect to any default that does not
relate to all Series, 66 2/3% or more of the principal amount of the Outstanding
Notes of each Series to which such default relates or, with respect to any such
Series with two or more Classes, of each Class) may, on behalf of all
Noteholders, waive any default by Seller or the Servicer in the performance of
their obligations hereunder and its consequences, except the failure to make any
distributions required to be made to Noteholders or to make any required
deposits of any amounts to be so distributed. Upon any such waiver of a past
default, such default shall cease to exist, and any default arising therefrom
shall be deemed to have been remedied for every purpose
37
of this Agreement. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereon except to the extent expressly so
waived.
(h) The Owner Trustee may, but shall not be obligated to, enter into any
such amendment which affects the Owner Trustee's rights, duties or immunities
under this Agreement or otherwise. In connection with the execution of any
amendment hereunder, the Owner Trustee shall be entitled to receive the Opinion
of Counsel described in Section 9.2(d).
--------------
Section 9.2. Protection of Right, Title and Interest to Issuer.
-------------------------------------------------
(a) Seller shall cause this Agreement, all amendments and supplements
hereto and all financing statements and continuation statements and any other
necessary documents covering the Indenture Trustee's and the Issuer's right,
title and interest to the Issuer to be promptly recorded, registered and filed,
and at all times to be kept recorded, registered and filed, all in such manner
and in such places as may be required by law fully to preserve and protect the
right, title and interest of the Indenture Trustee, Noteholders and the Issuer
hereunder to all property comprising the Issuer. Seller shall deliver to the
Indenture Trustee file-stamped copies of, or filing receipts for, any document
recorded, registered or filed as provided above, as soon as available following
such recording, registration or filing. Seller shall cooperate fully with the
Servicer in connection with the obligations set forth above and will execute any
and all documents reasonably required to fulfill the intent of this paragraph.
(b) Within thirty (30) days after the Seller makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with paragraph (a) seriously
misleading within the meaning of Section 9-402(7) (or any comparable provision)
of the UCC, the Seller shall give the Indenture Trustee notice of any such
change and shall file such financing statements or amendments as may be
necessary to continue the perfection of the Issuer's security interest or
ownership interest in the Receivables and the proceeds thereof.
(c) Each of the Seller and the Servicer shall give the Indenture Trustee
prompt notice of any relocation of its chief principal executive office or any
change in the jurisdiction under whose laws it is organized and whether, as a
result of such relocation or change, the applicable provisions of the UCC would
require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall file such
financing statements or amendments as may be necessary to perfect or to continue
the perfection of the Issuer's security interest in the Receivables and the
proceeds thereof. Each of Seller and Servicer shall at all times maintain its
chief principal executive offices within the United States and shall at all
times be organized under the laws of a jurisdiction located within the United
States.
38
(d) Seller shall deliver to the Indenture Trustee (i) upon the execution
and delivery of each amendment of this Agreement, an Opinion of Counsel to the
effect specified in Exhibit F-1; (ii) on each date specified in Section
----------- -------
2.6(c)(vii) with respect to Additional Accounts added pursuant to Section 2.6(a)
----------- --------------
or (b), an Opinion of Counsel substantially in the form of Exhibit F-2; and
--- -----------
(iii) on or before April 30 of each year following the year in which the FCMT
Termination Date occurs, an Opinion of Counsel substantially in the form of
Exhibit F-3.
-----------
Section 9.3. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.4. Notices; Payments.
-----------------
(a) All demands, notices, instructions, directions and communications
(collectively, "Notices") under this Agreement 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 (i) in the
case of Seller and the Servicer, to First Consumers National Bank, 0000 X.X.
Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxx 00000, Attn: President, (ii) in the case of the
Issuer or the Owner Trustee, to the Corporate Trust Office, Attn: Corporate
Trust & Agency Services, with a copy to the Administrator, (iii) in the case of
the Rating Agency for a particular Series, the address, if any, specified in the
Indenture Supplement relating to such Series, and (iv) to any other Person as
specified in the Indenture or any Indenture Supplement; or, 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.
(b) Any Notice required or permitted to be given to a Holder of Registered
Notes shall be given by first-class mail, postage prepaid, at the address of
such Holder as shown in the Note Register. Any Notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Noteholder receives such Notice. In addition, in the
case of any Series or Class with respect to which any Notes are outstanding, any
Notice required or permitted to be given to Noteholders of such Series or Class
shall be published in an Authorized Newspaper within the time period prescribed
in this Agreement.
Section 9.5. Severability of Provisions. If any one or more of the
--------------------------
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such provisions shall be deemed
severable from the remaining provisions of this Agreement and shall in no way
affect the validity or
39
enforceability of the remaining provisions or of the Notes or the rights of the
Noteholders.
Section 9.6. Further Assurances. Seller and the Servicer 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 Owner Trustee and the
Indenture Trustee more fully to effect the purposes of this Agreement, including
the execution of any financing statements or continuation statements relating to
the Receivables for filing under the provisions of the UCC of any applicable
jurisdiction.
Section 9.7. No Waiver; Cumulative Remedies. No failure to exercise and
------------------------------
no delay in exercising, on the part of the Owner Trustee, the Indenture Trustee
or the Noteholders, 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 9.8. Counterparts. This Agreement 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 9.9. Third-Party Beneficiaries. This Agreement will inure to the
-------------------------
benefit of and be binding upon the parties hereto, the Indenture Trustee, the
Noteholders, and any Series Enhancer. Except as otherwise expressly provided in
this Agreement, no other Person will have any right or obligation hereunder.
Section 9.10. Actions by Noteholders.
----------------------
(a) Wherever in this Agreement a provision is made that an action may be
taken or a Notice given by Noteholders, such action or Notice may be taken or
given by any Noteholder, unless such provision requires a specific percentage of
Noteholders.
(b) Any Notice, request, authorization, direction, consent, waiver or
other act by the Noteholder shall bind such Holder and every subsequent Holder
of such Note and of any Note issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything done or omitted
to be done by the Owner Trustee, Seller or the Servicer in reliance thereon,
whether or not notation of such action is made upon such Note.
40
Section 9.11. Rule 144A Information. For so long as any of the Notes of
---------------------
any Series or Class are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Act, each of Seller, the Owner Trustee, the
Indenture Trustee, the Servicer and any Series Enhancer agree to cooperate with
each other to provide to any Noteholders of such Series or Class and to any
prospective purchaser of Notes designated by such Noteholder, upon the request
of such Noteholder or prospective purchaser, any information required to be
provided to such holder or prospective purchaser to satisfy the condition set
forth in Rule 144A(d)(4) under the Securities Act.
Section 9.12. Merger and Integration. Except as specifically stated
----------------------
otherwise herein, this Agreement sets 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. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 9.13. No Bankruptcy Petition. Each of Seller and Servicer,
----------------------
severally and not jointly, hereby covenants and agrees that, prior to the date
which is one (1) year and one (1) day after the payment in full of all Notes, it
will not institute against, or join any other Person in instituting against, the
Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under the laws of the United States or
any state of the United States. Nothing in this Section 9.13 shall preclude, or
------------
be deemed to estop, any Seller and Servicer from taking (to the extent such
action is otherwise permitted to be taken by such Person hereunder) or omitting
to take any action prior to such date in (i) any case or proceeding voluntarily
filed or commenced by or on behalf of the Issuer under or pursuant to any such
law or (ii) any involuntary case or proceeding pertaining to the Issuer under or
pursuant to any such law.
Section 9.14. Rights of Indenture Trustee. The Indenture Trustee shall
---------------------------
have herein the same rights, protections, indemnities and immunities as
specified in the Indenture.
Section 9.15. Rights of the Owner Trustee. Each of the parties hereto
---------------------------
acknowledges and agrees that this Agreement is being executed and delivered by
Bankers Trust Company not individually but solely and exclusively in its
capacity as Owner Trustee on behalf of First Consumers Credit Card Master Note
Trust for the purpose and with the intention of binding First Consumers Credit
Card Master Note Trust. No obligations or liabilities hereunder shall run
against Bankers Trust Company in its individual capacity or against its
properties or assets.
41
IN WITNESS WHEREOF, Seller, the Servicer and the Issuer have caused this
Transfer and Servicing Agreement to be duly executed by their respective
officers as of the day and year first above written.
FIRST CONSUMERS NATIONAL
BANK, as Seller and Servicer
By: /s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer
FIRST CONSUMERS CREDIT CARD
MASTER NOTE TRUST, Issuer
By: BANKERS TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee on behalf
of the Issuer
By /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Acknowledged and Accepted:
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ Xxxx Xxxxxxxx
-----------------
Name: Xxxx Xxxxxxxx
Title: Authorized Agent
First Consumers Credit Card Master Note Trust
Transfer and Servicing Agreement Signature Page
EXHIBIT A
to
TRANSFER AND SERVICING AGREEMENT
FORM OF ASSIGNMENT OF RECEIVABLES
IN ADDITIONAL ACCOUNTS
(As required by Section 2.6 of the Transfer and Servicing Agreement)
-----------
ASSIGNMENT No. __ OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of
_____________, by and among FIRST CONSUMERS NATIONAL BANK, a national banking
association, as Seller (the "Seller") and as Servicer (the "Servicer") and FIRST
------ --------
CONSUMERS CREDIT CARD MASTER NOTE TRUST (the "Issuer"), pursuant to the Transfer
------
and Servicing Agreement referred to below.
WITNESSETH
WHEREAS, the Seller, the Servicer and the Issuer are parties to the
Transfer and Servicing Agreement, dated as of March 1, 2001 (the "Agreement");
---------
WHEREAS, pursuant to the Agreement, the Seller wishes to designate
Additional Accounts to be included as Accounts and to convey the Receivables of
such Additional Accounts (as each such term is defined in the Agreement),
whether now existing or hereafter created, to the Issuer; and
WHEREAS, the Issuer is willing to accept such designation and conveyance
subject to the terms and conditions hereof;
NOW, THEREFORE, the Seller, the Servicer and the Issuer hereby agree as
follows:
1. Defined Terms. All capitalized terms used herein shall have the
-------------
meanings ascribed to them in the Agreement unless otherwise defined herein.
"Addition Date" means, with respect to the Additional Accounts designated
-------------
hereby, ____________, 200__.
"Notice Date" means, with respect to the Additional Accounts designated
-----------
hereby, ____________, ____, (which shall be a date on or prior to the fifth
Business Day prior to the Addition Date).
2. Designation of Additional Accounts. On or before the date hereof, the
----------------------------------
Seller will deliver to the Owner Trustee a computer file or microfiche list
containing a true and complete schedule identifying all such Additional Accounts
(the
Exhibit A-1
"Additional Accounts") specifying for each such Additional Account, as of the
-------------------
Notice Date, its account number, the aggregate amount outstanding in such
Account and the aggregate amount of Principal Receivables outstanding in such
Account, which computer file or microfiche list shall supplement Schedule 1 to
----------
the Agreement.
3. Conveyance of Receivables. (a) The Seller does hereby transfer,
-------------------------
assign, set over and otherwise convey, without recourse except as set forth in
the Transfer and Servicing Agreement, to the Issuer, all its right, title and
interest in, to and under the Receivables of such Additional Accounts existing
at the close of business on the Notice Date and thereafter created from time to
time until the termination of the Issuer, all Recoveries related thereto, all
monies due or to become due and all amounts received or receivable with respect
thereto and all proceeds thereof. The foregoing does not constitute and is not
intended to result in the creation or assumption by the Issuer, the Owner
Trustee, the Indenture Trustee, any Noteholders or any Series Enhancer of any
obligation of the Servicer, the Seller or any other Person in connection with
the Accounts, the Receivables or under any agreement or instrument relating
thereto, including any obligation to Obligors, merchant banks, merchants or
clearance systems.
(b) The Seller agrees to record and file, at its own expense,
financing statements (and continuation statements when applicable) with respect
to the Receivables in Additional Accounts existing on the Notice Date and
thereafter created meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect, and maintain
perfection of, the sale and assignment of its interest in such Receivables to
the Issuer, and to deliver a file-stamped copy of each such financing statement
or other evidence of such filing to the Owner Trustee on or prior to the
Addition Date. The Owner Trustee shall be under no obligation whatsoever to file
such financing or continuation statements or to make any other filing under the
UCC in connection with such sale and assignment.
(c) In connection with such sale, the Seller further agrees, at its
own expense, on or prior to the date of this Assignment, to indicate in the
appropriate computer files that Receivables created in connection with the
Additional Accounts and designated hereby have been conveyed to the Issuer
pursuant to the Agreement and this Assignment.
(d) The Seller does hereby grant to the Issuer a security interest in
all of its right, title and interest, whether now owned or hereafter acquired,
in and to the Receivables in the Additional Accounts existing on the Notice Date
and thereafter created, all Recoveries related thereto, all monies due or to
become due and all amounts received or receivable with respect thereto, all
money, accounts, general 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
foregoing, and all proceeds thereof. This Assignment constitutes a security
agreement under the UCC.
Exhibit A-2
4. Acceptance by Issuer. The Issuer hereby acknowledges its acceptance of
--------------------
all right, title and interest to the property, existing on the Notice Date and
thereafter created, conveyed to the Issuer pursuant to Section 3(a) of this
------------
Assignment. The Issuer further acknowledges that, prior to or simultaneously
with the execution and delivery of this Assignment, the Seller delivered to the
Owner Trustee the computer file or microfiche list described in Section 2 of
---------
this Assignment.
5. Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Issuer as of the Addition Date:
(a) Legal Valid and Binding Obligation. This Assignment 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 receivership or conservatorship, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and the rights of
creditors of national banking associations and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity);
(b) Schedule 1. Schedule 1 to this Assignment and the computer file or
----------
microfiche list delivered pursuant to Section 2 of this Assignment 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 identity 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. No selection procedures believed by the
--------------------
Seller to be materially adverse to the interests of the Noteholders were
utilized in selecting the Additional Accounts designated hereby;
(e) Insolvency. The Seller is not insolvent and, after giving effect
----------
to the conveyance set forth in Section 3 of this Assignment, will not be
---------
insolvent;
Exhibit A-3
(f) Security Interest. This Assignment constitutes (i) a valid
-----------------
transfer and assignment to the Issuer of all right, title and interest of
the Seller in and to Receivables now existing and hereafter created in the
Additional Accounts designated hereby, and all proceeds (as defined in the
UCC as in effect in the State of Illinois) of such Receivables and
Insurance Proceeds relating thereto, and such Receivables and any
Collections, Recoveries and other proceeds thereof and Insurance Proceeds
relating thereto will be held by the Issuer free and clear of any Lien of
any Person except for (x) Liens permitted under Section 2.5(b) of the
--------------
Transfer and Servicing Agreement and (y) the interest of the Seller as
holder of the Collateral Certificate and/or (ii) it constitutes a grant of
a security interest (as defined in the UCC as in effect in the State of
Illinois) in such property to the Issuer, which is enforceable with respect
to the existing Receivables in the Additional Accounts designated hereby,
the Collections, Recoveries and other proceeds (as defined in the UCC as in
effect in the State of Illinois) thereof and Insurance Proceeds relating
thereto upon the conveyance of such Receivables to the Issuer, and which
will be enforceable with respect to the Receivables thereafter created in
respect of the Additional Accounts designated hereby, the Collections,
Recoveries and other proceeds (as defined in the UCC as in effect in the
State of Illinois) thereof and Insurance Proceeds relating thereto, upon
such creation; and (iii) if this Assignment constitutes the grant of a
security interest to the Issuer in such property, upon the filing of a
financing statement described in Section 3 of this Assignment with respect
---------
to the Additional Accounts designated hereby and in the case of the
Receivables of such Additional Accounts thereafter created and the
Collections, Recoveries and other proceeds (as defined in the UCC as in
effect in the State of Illinois) thereof, and Insurance Proceeds relating
to such Receivables, upon such creation, the Issuer shall have a first
priority perfected security interest in such property, except for Liens
permitted under Section 2.5(b) of the Transfer and Servicing Agreement, the
--------------
interest of the Seller as holder of the Collateral Certificate and the
Seller's right to receive interest accruing on, and investment earnings in
respect of, the Collection Subaccount and any Series Account as provided in
the Transfer and Servicing Agreement.
(g) Notice has been given to each Rating Agency and to each
Enhancement Provider as required under Section 2.7(d) of the Transfer and
--------------
Servicing Agreement.
Exhibit A-4
6. Conditions Precedent. The acceptance of the Owner Trustee set forth in
--------------------
Section 4 above and the amendment of the Transfer and Servicing Agreement set
---------
forth in Section 7 below are subject to the satisfaction, on or prior to the
---------
Addition Date, of the following conditions precedent:
(a) Officer's Certificate. The Seller shall have delivered to the
---------------------
Owner Trustee a certificate of a Vice President or more senior officer,
certifying that (i) all requirements set forth in Section 2.6 of the
-----------
Transfer and 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 Seller in Section 5 is true and
---------
correct as of the Addition Date. The Owner Trustee 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.
(b) Opinion of Counsel. The Seller shall have delivered to the Owner
------------------
Trustee an Opinion of Counsel with respect to the Additional Accounts
designated hereby substantially in the form of Exhibit F-2 to the
-----------
Agreement.
(c) Additional Information. The Seller shall have delivered to the
----------------------
Owner Trustee such information as was reasonably requested by the Owner
Trustee to satisfy itself as to the accuracy of the representation and
warranty set forth in Section 5(d) to this Assignment.
------------
7. Amendment of the Transfer and Servicing Agreement. The Transfer and
-------------------------------------------------
Servicing Agreement is hereby amended to provide that all references therein to
the "Transfer and Servicing Agreement", to "this Agreement" and "herein" shall
be deemed from and after the Addition Date to be a dual reference to the
Transfer and Servicing Agreement as supplemented by this Assignment. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Transfer and Servicing 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 Transfer and Servicing
Agreement.
Exhibit A-5
8. Counterparts. This Assignment may be executed in two or more
------------
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
9. Rights of the Owner Trustee. Each of the parties hereto acknowledges
---------------------------
and agrees that this Agreement is being executed and delivered by Bankers Trust
Company not individually but solely and exclusively in its capacity as Owner
Trustee on behalf of First Consumers Credit Card Master Note Trust for the
purpose and with the intention of binding First Consumers Credit Card Master
Note Trust. No obligations or liabilities hereunder shall run against Bankers
Trust Company in its individual capacity or against its properties or assets.
Exhibit A-6
IN WITNESS WHEREOF, the undersigned have caused this Assignment of
Receivables in Additional Accounts to be duly executed and delivered by their
respective duly authorized officers on the day and year first above written.
FIRST CONSUMERS NATIONAL BANK,
Seller and Servicer
By:_________________________________
Name:
Title:
FIRST CONSUMERS CREDIT CARD
MASTER NOTE TRUST,
Issuer
By: BANKERS TRUST COMPANY,
not in its individual capacity but solely
on behalf of the Issuer
By:_________________________________
Name:
Title:
Exhibit A-7
Schedule 1
to Assignment of Receivables
in Additional Accounts
ADDITIONAL ACCOUNTS
-------------------
Exhibit A-8
EXHIBIT B
to
TRANSFER AND SERVICING AGREEMENT
FORM OF REASSIGNMENT OF RECEIVABLES
IN REMOVED ACCOUNTS
(As required by Section 2.7 of the Transfer and Servicing Agreement)
-----------
REASSIGNMENT No. _______ OF RECEIVABLES dated as of _________, by and among
FIRST CONSUMERS NATIONAL BANK, a national banking association, as Seller (the
"Seller") and Servicer (the "Servicer"), and FIRST CONSUMERS CREDIT CARD MASTER
-------
NOTE TRUST (the "Issuer"), pursuant to the Transfer and Servicing Agreement
------
referred to below.
WITNESSETH:
WHEREAS the Seller, the Servicer and the Issuer are parties to the Transfer
and Servicing Agreement, dated as of March 1, 2001 (the "Agreement");
---------
WHEREAS pursuant to the Agreement, the Seller wishes to remove from the
Issuer all Receivables owned by the Issuer in certain designated Accounts (the
"Removed Accounts") and to cause the Issuer to reconvey the Receivables of such
-----------------
Removed Accounts, whether now existing or hereafter created, from the Issuer to
the Seller; and
WHEREAS the Issuer is willing to accept such designation and to reconvey
the Receivables in the Removed Accounts subject to the terms and conditions
hereof;
NOW, THEREFORE, the Seller and the Issuer hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used herein
-------------
shall have such defined meanings when used herein, unless otherwise defined
herein.
"Removal Date" means, with respect to the Removed Accounts designated
------------
hereby, ___________, ____.
"Removal Notice Date" means, with respect to the Removed Accounts
-------------------
______________, ____, (which shall be a date on or prior to the fifth Business
Day prior to the Removal Date).
2. Designation of Removed Accounts. On or before the date that is ten
-------------------------------
(10) Business Days after the Removal Date, the Seller will deliver to the Owner
Trustee a computer file or microfiche list containing a true and complete
schedule identifying all Accounts the Receivables of which are being removed
from the Issuer,
Exhibit B-1
specifying for each such Account, as of the Removal Notice Date, its account
number, the aggregate amount outstanding in such Account and the aggregate
amount of Principal Receivables in such Account, which computer file or
microfiche list shall supplement Schedule 1 to the Agreement.
----------
3. Conveyance of Receivables. (a) The Issuer does hereby transfer,
-------------------------
assign, set over and otherwise convey to the Seller, without recourse, on and
after the Removal Date, all right, title and interest of the Issuer in, to and
under the Receivables existing at the close of business on the Removal Notice
Date and thereafter created from time to time in the Removed Accounts designated
hereby, all Recoveries related thereto, all monies due or to become due and all
amounts received or receivable with respect thereto and all proceeds thereof.
(b) In connection with such transfer, the Issuer agrees to execute and
deliver to the Seller on or prior to the date this Reassignment is delivered,
applicable termination statements prepared by the Seller with respect to the
Receivables existing at the close of business on the Removal Notice Date and
thereafter created from time to time in the Removed Accounts reassigned hereby
and the proceeds thereof evidencing the release by the Issuer of its interest in
the Receivables in the Removed Accounts, and meeting the requirements of
applicable state law, in such manner and such jurisdictions as are necessary to
terminate such interest.
4. Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Issuer as of the Removal Date:
(a) Legal Valid and Binding Obligation. This Reassignment Agreement
----------------------------------
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 bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general 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) Selection Procedures. No selection procedures believed by the Seller
--------------------
to be materially adverse to the interests of the Noteholders were utilized in
selecting the Removed Accounts designated hereby.
5. Condition Precedent. The amendment of the Transfer and Servicing
-------------------
Agreement set forth in Section 7 hereof is subject to the satisfaction, on or
---------
prior to the Removal Date, of the following condition precedent:
Exhibit B-2
6. Officers' Certificate. The Seller shall have delivered to the Owner
---------------------
Trustee an Officers' Certificate certifying that (i) as of the Removal Date, all
requirements set forth in Section 2.5 of the Transfer and Servicing Agreement
-----------
for designating Removed Accounts and reconveying the Receivables of such Removed
Accounts, whether now existing or hereafter created, have been satisfied, and
(ii) each of the representations and warranties made by the Seller in Section 5
---------
hereof is true and correct as of the Removal Date. The Owner Trustee 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.
7. Amendment of the Transfer and Servicing Agreement. The Transfer and
-------------------------------------------------
Servicing Agreement is hereby amended to provide that all references therein to
the "Transfer and Servicing Agreement", to "this Agreement" and "herein" shall
be deemed from and after the Removal Date to be a dual reference to the Transfer
and Servicing Agreement as supplemented by this Reassignment Agreement. Except
as expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Transfer and Servicing 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 Transfer and Servicing
Agreement.
8. Counterparts. This Reassignment Agreement may be executed in two or
------------
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
9. Rights of the Owner Trustee. Each of the parties hereto acknowledges
---------------------------
and agrees that this Agreement is being executed and delivered by Bankers Trust
Company not individually but solely and exclusively in its capacity as Owner
Trustee on behalf of First Consumers Credit Card Master Note Trust for the
purpose and with the intention of binding First Consumers Credit Card Master
Note Trust. No obligations or liabilities hereunder shall run against Bankers
Trust Company in its individual capacity or against its properties or assets.
Exhibit B-3
IN WITNESS WHEREOF, the undersigned have caused this Reassignment Agreement
to be duly executed and delivered by their respective duly authorized officers
on the day and year first above written.
FIRST CONSUMERS NATIONAL
BANK, Seller and Servicer
By:_______________________________
Name:
Title:
FIRST CONSUMERS CREDIT CARD
MASTER NOTE TRUST,
Issuer
By: BANKERS TRUST COMPANY,
not in its individual capacity but solely on
behalf of the Issuer
By:_______________________________
Name:
Title:
Exhibit B-4
Schedule 1
to Reassignment Agreement
REMOVED ACCOUNTS
----------------
Exhibit B-5
EXHIBIT C
to
TRANSFER AND SERVICING AGREEMENT
FORM OF MONTHLY SERVICER'S CERTIFICATE
The undersigned, a duly authorized representative of First Consumers
National Bank ("FCNB"), as Servicer pursuant to the Transfer and Servicing
----
Agreement dated as of March 1, 2001 (the "Transfer and Servicing Agreement")
--------------------------------
between FCNB, as Seller and Servicer, and First Consumers Credit Card Master
Note Trust, as Issuer, does hereby certify as follows:
1. Capitalized terms used in this Certificate have
their respective meanings set forth in the Transfer
and Servicing Agreement; provided that the
--------
"preceding Monthly Period" shall mean the
------------------------
Monthly Period immediately preceding the
calendar month in which this Certificate is
delivered. This Certificate is delivered pursuant to
Section 3.4(b) of the Transfer and Servicing
--------------
Agreement. References herein to certain sections
and subsections are references to the respective
sections and subsections of the Transfer and
Servicing Agreement.
2. FCNB is the Servicer under the Transfer and
Servicing Agreement.
3. The undersigned is a Servicing Officer.
4. The date of this Certificate is a Determination
Date under the Transfer and Servicing Agreement.
5. The aggregate amount of Collections processed
during the preceding Monthly Period was equal to
$ ________________________
6. The aggregate amount of the Allocation
Percentage of Collections of Principal Receivables
processed by the Servicer pursuant to Article VIII
of the Indenture during the preceding Monthly
Period was equal to $ _________________________
7. The aggregate amount of the Allocation
Percentage of Finance Charge Collections
Exhibit C-1
processed by the Servicer pursuant to Article VIII
of the Indenture during the preceding Monthly
Period was equal to $ _________________________
8. The Default Amount for the preceding Monthly
Period was equal to $ _________________________
9. Net Recoveries for the preceding Monthly Period
was equal to $ _________________________
10. The Portfolio Yield for the preceding Monthly
Period for each of the following Series was equal to:
Series __________________$ _________________________
Series __________________$ _________________________
11. The Base Rate for the preceding Monthly Period for
each of the following Series was equal to:
Series ___________________$ _________________________
Series ___________________$ _________________________
12. The aggregate amount of Receivables as of the
last day of the preceding Monthly Period was equal to
$ _________________________
13. The aggregate amount of funds on deposit in the
Collection Account (or any Subaccount thereof)
and each other Series Account with respect to
Collections processed as of the end of the last day
of the preceding Monthly Period was equal to
$___________
14. The aggregate amount, if any, of withdrawals,
drawings or payments under any Enhancement
with respect to each Series made with
respect to the preceding Monthly Period was equal to
$ _________________________
15. The aggregate amount payable to the Noteholders
on the succeeding Distribution Date in respect of
interest is equal to $ _________________________
Exhibit C-2
16. The aggregate amount payable to the
Noteholders on the succeeding Distribution Date
in respect of principal is equal to $ ______________
Exhibit C-3
EXHIBIT D
to
TRANSFER AND SERVICING AGREEMENT
FORM OF ANNUAL SERVICER'S CERTIFICATE
The undersigned, a duly authorized representative of First Consumers
National Bank ("FCNB") as Servicer pursuant to the Transfer and Servicing
----
Agreement dated as of March 1, 2001 (the "Transfer and Servicing Agreement")
--------------------------------
between FCNB and Spiegel Credit Card Master Note Trust, as Issuer, does hereby
certify that:
1. FCNB is Servicer under the Transfer and Servicing Agreement.
2. The undersigned is duly authorized pursuant to the Transfer and
Servicing Agreement to execute and deliver this Certificate to the Owner
Trustee.
3. This Certificate is delivered pursuant to Section 3.5 of the Transfer
-----------
and Servicing Agreement.
4. A review of the activities of the Servicer during the calendar year
ended December 31, 200_ was conducted under my supervision.
5. Based on such review, the Servicer has, to the best of my knowledge,
fully performed all its obligations under the Transfer and Servicing Agreement
throughout such calendar year and no default in the performance of such
obligations has occurred or is continuing except as set forth in paragraph 6
below.
6. The following is a description of each default in the performance of
the Servicer's obligations under the provisions of the Transfer and Servicing
Agreement known to me to have been made during the calendar year ended December
31, 200_, which sets forth in detail the (i) nature of each such default, (ii)
the action taken by the Servicer, if any, to remedy each such default and (iii)
the current status of each such default: [If applicable, insert "None."]
Exhibit D-1
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate this
day of____________, 200 ___.
_______________________________
Name:
Title:
Exhibit D-2
EXHIBIT E
to
TRANSFER AND SERVICING AGREEMENT
FORM OF ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS'
SERVICING REPORT
First Consumers National Bank
0000 X.X. Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
The Bank of New York
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Gentlemen:
We have applied certain agreed-upon procedures, as discussed below, to the
accounting records of First Consumers National Bank (FCNB, or in its capacity as
Servicer, the "Servicer") as of December 31, ____, solely to assist the Servicer
--------
in its responsibilities as Servicer under the Transfer and Servicing Agreement
dated as of March 1, 2001, between FCNB, the Servicer and First Consumers Credit
Card Master Note Trust (the "Transfer and Servicing Agreement"). It is
--------------------------------
understood that this report is solely for your information and is not to be
referred to or distributed for any other purpose to anyone who is not a member
of management of the Servicer, SCCIII or the Owner Trustee, or who is not
otherwise specifically defined as a recipient in the Servicing Agreement. Our
procedures and findings are as follows:
(a) We compared each of the amounts in the certificates delivered by the
Servicer pursuant to Section 3.4(b) of the Transfer and Servicing
--------------
Agreement, the statements or reports delivered to the Noteholders of
each Series pursuant to the Indenture Supplements and the monthly
payment instructions delivered to the Owner Trustee with respect to
each Series of Notes pursuant to the Indenture for each of the months
in the year ended December 31, _____ [the period of ___ months ended
______, ____] to the corresponding amounts in schedules prepared by
the Servicer and found them to be in agreement.
(b) We verified the mathematical accuracy of the schedules prepared by the
Servicer and found no differences.
(c) We compared the information in the schedules prepared by the Servicer
to data extracted from the Servicer's credit accounting system and
found them to be in agreement.
Exhibit E-1
(d) We read the Annual Servicer's Certificate delivered pursuant to
Section 3.5 of the Servicing Agreement for the year ended December 31,
-----------
_____ [for the period of ____months ended, _______, _____] and made
inquiries of the Servicer's management regarding the Servicer's
compliance with the guidelines of the Transfer and Servicing
Agreement.
Because the above procedures do not constitute an audit made in accordance
with generally accepted auditing standards, we express no opinion on any of the
specified accounts or items referred to above. In connection with the procedures
referred to above, no matters came to our attention that caused us to believe
that the certificates and reports referred to above should be adjusted. Based on
our reading, inquiries and procedures as set forth in paragraphs (a), (b), (c)
and (d) above, nothing came to our attention that caused us to believe that the
servicing of the accounts was not conducted in compliance with the terms and
conditions set forth in the Transfer and Servicing Agreement insofar as they
relate to accounting matters. Had we performed additional procedures, matters
might have come to our attention that would have been reported to you. This
report relates only to the accounts or items specified above and does not extend
to any financial statements of First Consumers National Bank, or First Consumers
Credit Card Master Note Trust taken as a whole.
Date:
Exhibit E-2
EXHIBIT F-1
FORM OF OPINION OF COUNSEL
WITH RESPECT TO AMENDMENTS
(Provisions to be included in Opinion of Counsel to be delivered
pursuant to Section 9.2(d)(i))
-----------------
The opinions set forth below may be subject to all the qualifications,
assumptions, limitations and exceptions taken or made in the Opinions Of Counsel
delivered on any applicable Closing Date.
(i) The amendment to the Transfer and Servicing Agreement, attached hereto
as Schedule 1 (the "Amendment" ), has been duly authorized, executed and
---------- ---------
delivered by Seller and constitutes the legal, valid and binding agreement of
Seller, enforceable in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws from time to time in effect affecting creditors' rights generally.
The enforceability of Seller's obligations is also subject to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(ii) The Amendment has been entered into in accordance with the terms and
provisions of Section 9.1 of the Transfer and Servicing Agreement.
-----------
Exhibit F-1-1
EXHIBIT F-2
to
TRANSFER AND SERVICING AGREEMENT
(Provisions to be included in Opinion of Counsel to be delivered
pursuant to Section 2.6(c)(vii) and Section 9.2(d)(ii))
------------------- ------------------
The opinions set forth below may be subject to all the qualifications,
assumptions, limitations and exceptions taken or made in the Opinions of Counsel
delivered on any applicable Closing Date.
1. Except for any Receivable that is evidenced by an instrument, the
Receivables constitute accounts or general intangibles under Article 9 of the
UCC.
2. If the Assignment, together with the Agreement, constitutes a valid
assignment of all Seller's right, title and interest in, to and under the
Receivables in Schedule 1 to the Assignment and all of the Seller's rights,
----------
remedies, powers, and privileges with respect to such Receivables, then the
Issuer has or will acquire all of Seller's right, title and interest in, to and
under the such Receivables free and clear of any Lien or interest of any person
at the time of transfer (and anytime thereafter with respect to any Lien or
interest arising through or under the Seller except as provided in the
Agreement), except for Liens for municipal or other local taxes permitted under
Section 2.5(b) of the Agreement.
3. If the Assignment, together with the Agreement, does not constitute a
valid assignment of all of the Seller's right, title and interest in, to and
under the Receivables in Schedule 1 to the Assignment, then the Assignment
----------
creates a valid security interest in all the Seller's right, title and interest
in, to and under such Receivable and the proceeds thereof in favor of the
Issuer, which security interest is perfected and of first priority.
Exhibit F-2-1
EXHIBIT F-3
PROVISIONS TO BE INCLUDED IN
ANNUAL OPINION OF COUNSEL
The opinions set forth below may be subject to certain qualifications,
assumptions, limitations and exceptions taken or made in the opinion of counsel
to Seller with respect to similar matters delivered on the Initial Closing Date.
Unless otherwise indicated, all capitalized terms used herein shall have the
meanings ascribed to them in the Transfer and Servicing Agreement.
1. No filing or other action, other than such filing or other action
described in this opinion letter, is necessary from the date of this opinion
letter through June 30 of the following year to continue the perfected status of
the security interest of the Trust in the Receivables described in the financing
statements referenced in this opinion letter.
2. No filing or other action, other than such filing or other action
described in this opinion letter, is necessary from the date of this opinion
letter through June 30 of the following year to continue the perfected status of
the security interest of the Indenture Trustee in the Receivables described in
the financing statements referenced in this opinion letter.
Exhibit F-3-1
SCHEDULE 1
List of Accounts
----------------
[Original list delivered to Owner Trustee]
1-1
