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Exhibit 10.2
Execution Copy
_____________________________________________________________________________
NOTE PURCHASE AGREEMENT
among
NORDSTROM CREDIT CARD RECEIVABLES LLC,
as Transferor,
NORDSTROM fsb,
as Servicer,
and
NORDSTROM CREDIT, INC.,
as Purchaser
Dated as of March 1, 2004
_____________________________________________________________________________
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
Section 1.01. Certain Defined Terms....................................... 1
Section 1.02. Other Definitional Provisions................................5
ARTICLE TWO
PURCHASE AND SALE
Section 2.01. Purchase and Sale of the Series 2004-1 Notes.................7
Section 2.02. Initial Purchase Price.......................................7
Section 2.03. Incremental Fundings.........................................7
Section 2.04. Extension of Purchase Expiration Date........................7
Section 2.05. Reduction or Increase of the Series 2004-1 Maximum
Principal Balance............................................7
Section 2.06. Determination of Monthly Interest............................8
ARTICLE THREE
CLOSING
Section 3.01. Closing......................................................9
Section 3.02. Transactions to be Effected at the Closing...................9
ARTICLE FOUR
CONDITIONS PRECEDENT TO PURCHASE ON THE CLOSING DATE
Section 4.01. Performance by the Transferor, the Issuer and the
Servicer....................................................10
Section 4.02. Representations and Warranties..............................10
Section 4.03. Corporate Documents.........................................10
Section 4.04. Opinions of Counsel to Nordstrom fsb and the Transferor.....10
Section 4.05. Opinions of Counsel to the Owner Trustee....................10
Section 4.06. Opinions of Counsel to the Indenture Trustee................10
Section 4.07. Financing Statements........................................10
Section 4.08. Documents...................................................11
Section 4.09. No Actions or Proceedings...................................11
Section 4.10. Approvals and Consents......................................11
Section 4.11. Officer's Certificates......................................11
Section 4.12. Documents Relating to Credit Enhancement....................11
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Section 4.12. Accounts....................................................11
Section 4.13. Other Documents.............................................11
ARTICLE FIVE
REPRESENTATIONS AND WARRANTIES OF THE NORDSTROM PARTIES
Section 5.01. Transfer and Servicing Agreement............................12
Section 5.02. Corporate Existence and Power...............................12
Section 5.03. Corporate and Governmental Authorization; Contravention.....12
Section 5.04. Binding Effect..............................................13
Section 5.05. No Conflict.................................................13
Section 5.06. No Proceedings..............................................13
Section 5.07. Transferor Amount...........................................13
Section 5.08. No Pay Out Event............................................13
Section 5.09. Accuracy of Information.....................................13
Section 5.10. Taxes.......................................................13
Section 5.11. Use of Proceeds.............................................14
Section 5.12. Value.......................................................14
Section 5.13. ERISA.......................................................14
Section 5.14. Place of Business...........................................14
Section 5.15. Investment Company..........................................14
Section 5.16. No Liens....................................................14
Section 5.17. Authorization...............................................14
Section 5.18. No Amendments...............................................14
Section 5.19. No Claims...................................................14
Section 5.20. Agreements Enforced.........................................14
Section 5.21. Series 2004-1 Notes.........................................15
Section 5.22. Issuer Existence and Authorization..........................15
Section 5.23. Financial Condition of Nordstrom Parties....................15
ARTICLE SIX
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Section 6.01. Organization................................................16
Section 6.02. Authority, Etc..............................................16
Section 6.03. Securities Act..............................................16
ARTICLE SEVEN
COVENANTS
Section 7.01. Affirmative Covenants of the Nordstrom Parties..............17
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Section 7.02. Covenants...................................................20
Section 7.03. Negative Covenants of the Nordstrom Parties.................20
ARTICLE EIGHT
ADDITIONAL COVENANTS
Section 8.01. Legal Conditions to Closing.................................22
Section 8.02. Expenses....................................................22
Section 8.03. Mutual Obligations..........................................22
Section 8.04. Restrictions on Transfer....................................22
Section 8.05. Consents, Etc...............................................22
ARTICLE NINE
INDEMNIFICATION
Section 9.01. Indemnities by the Nordstrom Parties........................23
Section 9.02. Procedure...................................................24
Section 9.03. Defense of Claims...........................................25
Section 9.04. Indemnity for Taxes and Expenses............................25
Section 9.05. Costs, Expenses and Taxes...................................26
ARTICLE TEN
MISCELLANEOUS
Section 10.01. Waivers and Amendments.....................................28
Section 10.02. Notices....................................................28
Section 10.03. Binding Effect; Assignability..............................28
Section 10.04. GOVERNING LAW..............................................28
Section 10.05. No Proceedings.............................................28
Section 10.06. Execution in Counterparts..................................29
Section 10.07. No Recourse 29
Section 10.08. Limited Recourse 29
Section 10.09. Survival 29
Section 10.10. Tax Characterization 29
Section 10.11. Nonpetition Covenant 29
Section 10.12. Notice to Rating Agencies 29
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This NOTE PURCHASE AGREEMENT, dated as of March 1, 2004, is among
Nordstrom Credit Card Receivables LLC, Nordstrom fsb and Nordstrom Credit,
Inc.
The parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Certain Defined Terms. Whenever used in this Agreement, the
following words and phrases shall have the following meanings:
"Agreement" means this Note Purchase Agreement.
"Applicable Indemnifying Party" means Nordstrom fsb or the Transferor, as
applicable, with respect to the indemnity to be provided pursuant to Article
Nine.
"Assignment and Acceptance" means an assignment and acceptance agreement
entered into by the Purchaser and a permitted assignee, pursuant to which
such assignee may become a party to this Agreement.
"Benefit Plan" means an employee benefit plan, as defined in Section 3(3) of
ERISA, that is subject to Title I of ERISA, a plan, as defined in Section
4975(e)(1) of the Code, that is subject to Section 4975 of the Code, and any
entity deemed to hold plan assets of any of the foregoing by reason of an
employee benefit plan's or plan's investment in the entity or otherwise under
ERISA.
"Class A Incremental Funded Amount" means the amount of the increase in the
Class A Invested Amount occurring as a result of any Incremental Funding.
"Class A Initial Principal Balance" means $182,000,000.
"Class A Initial Purchase Price" means an amount equal to 100% of the Class A
Initial Principal Balance.
"Class A Invested Amount" means, at any time, the Class A Note Principal
Balance at such time; provided, that any reduction of the Class A Invested
Amount shall be restored in the amount of any Collections or other payments
received and applied to pay principal of the Class A Notes if at any time the
distribution of such Collections or payments are rescinded, returned or
refunded for any reason.
"Class A Maximum Principal Balance" means $182,000,000, as such amount may be
increased or decreased from time to time in accordance with Section 2.05.
"Class A Note Principal Balance" has the meaning specified in the Indenture
Supplement.
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"Class A Notes" means the Series 2004-1 Asset Backed Variable Funding Notes,
Class A in the Class A Maximum Principal Balance to be issued by the Issuer
pursuant to the Indenture.
"Class B Incremental Funded Amount" means the amount of the increase in the
Class B Invested Amount occurring as a result of any Incremental Funding.
"Class B Initial Principal Balance" means $18,000,000.
"Class B Initial Purchase Price" means an amount equal to 100% of the Class B
Initial Principal Balance.
"Class B Invested Amount" means, at any time, the Class B Note Principal
Balance at such time; provided, that any reduction of the Class B Invested
Amount shall be restored in the amount of any Collections or other payments
received and applied to pay principal of the Class B Notes if at any time the
distribution of such Collections or payments are rescinded, returned or
refunded for any reason.
"Class B Maximum Principal Balance" has the meaning specified in the
Indenture Supplement.
"Class B Note Principal Balance" has the meaning specified in the Indenture
Supplement.
"Class B Notes" means the Series 2004-1 Asset Backed Variable Funding Notes,
Class B in the Class B Maximum Principal Balance to be issued by the Issuer
pursuant to the Indenture.
"Class B Required Amount" means the product of the (i) Required Subordination
Percentage and (ii) Series 2004-1 Principal Balance.
"Closing" has the meaning specified in Section 3.01.
"Closing Date" has the meaning specified in Section 3.01.
"Code" has the meaning specified in the Transfer and Servicing Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, and the
regulations promulgated and the rulings issued thereunder.
"ERISA Affiliate" means, with respect to any Person, (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as such Person, (ii) a trade or
business (whether or not incorporated) under common control (within the
meaning of Section 414(c) of the Code) with such Person or (iii) a member of
the same affiliated service group (within the meaning of Section 414(n) of
the Code) as such Person, any corporation described in clause (i) above or
any trade or business described in clause (ii) above.
"Fee Letter" means the letter agreement, dated March 31, 2004, between the
Servicer and the Purchaser setting forth certain fees payable in connection
with the purchase of the Series 2004-1 Notes by the Purchaser.
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"Federal Bankruptcy Code" means Title 11 of the United States Code.
"Governmental Actions" means any and all consents, approvals, permits,
orders, authorizations, waivers, exceptions, variances, exemptions or
licenses of, or registrations, declarations or filings with, any Governmental
Authority required under any Governmental Rules.
"Governmental Authority" means the United States, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government and having jurisdiction over the applicable Person.
"Governmental Rules" means any and all laws, statutes, codes, rules,
regulations, ordinances, orders, writs, decrees and injunctions of any
Governmental Authority and any and all legally binding conditions, standards,
prohibitions, requirements and judgments of any Governmental Authority.
"Increase Conditions" has the meaning specified in the Indenture Supplement.
"Incremental Funding" means an increase in the Note Principal Balance in
accordance with a Principal Balance Increase pursuant to Section 4.09 of the
Indenture Supplement and Section 2.03 hereof.
"Incremental Funding Date" means the date on which an Incremental Funding
occurs.
"Indemnified Amounts" means any and all damages, losses, claims, liabilities,
costs and expenses, including reasonable attorneys' fees (which such
attorneys may be employees of the Purchaser) and disbursements of an
Indemnified Party with respect to the indemnity to be provided by the
Applicable Indemnifying Party pursuant to Article Nine.
"Indemnified Party" means the Purchaser and any of its officers, directors
and employees with respect to the indemnity to be provided by the Applicable
Indemnifying Party pursuant to Article Nine.
"Indenture" means the Master Indenture, as supplemented by the Indenture
Supplement.
"Indenture Supplement" means the Indenture Supplement, dated as of March 1,
2004, between the Issuer and the Indenture Trustee, which supplements the
Master Indenture as it relates to the Series 2004-1 Notes.
"Indenture Trustee" means Wells Fargo Bank, National Association, as
successor-by-merger to Wells Fargo Bank Minnesota, National Association, as
Indenture Trustee under the Indenture.
"Issuer" means Nordstrom Credit Card Master Note Trust.
"Master Indenture" means the Master Indenture, dated as of April 1, 2002,
between the Issuer and the Indenture Trustee.
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"Material Adverse Effect" means a material adverse effect on (i) the
financial condition or operations of any Nordstrom Party, (ii) the ability of
any Nordstrom Party to perform its obligations under this Agreement, (iii)
the legality, validity or enforceability of this Agreement or any other
Series Document or (iv) the collectibility of the Receivables generally or of
any material portion of the Receivables.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA which is or was at any time during the current year or
the immediately preceding five years contributed to by the Borrower or any
ERISA Affiliate on behalf of its employees.
"NCI" means Nordstrom Credit, Inc.
"Nordstrom Parties" means Nordstrom fsb and the Transferor.
"Note Principal Balance" has the meaning set forth in the Indenture
Supplement.
"Notice of Incremental Funding" means a written notice of a Principal Balance
Increase Request substantially in the form of Exhibit D to the Indenture
Supplement.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Potential Pay Out Event" means an event which but for the lapse of time, the
giving of notice or both, would constitute a Pay Out Event.
"Purchase Expiration Date" means the earlier of the date (i) which is 364
days from the date of this Agreement, as such date may from time to time be
extended in accordance with Section 2.04 and (ii) on which the Early
Amortization Period commences.
"Purchaser" means NCI.
"Receivables Purchase Agreement" means the Receivables Purchase Agreement,
dated as of April 1, 2002, between Nordstrom fsb and the Transferor.
"Required Subordination Percentage" has the meaning set forth in the
Indenture Supplement.
"Requirement of Law" for any Person shall mean the charter, certificate of
incorporation or articles of association and by-laws or other organizational
or governing documents of such Person, and any law, treaty, rule or
regulation, or determination of an arbitrator or Governmental Authority, in
each case applicable to or binding upon such Person or to which such Person
is subject, whether Federal, state or local (including usury laws, the
Federal Truth in Lending Act and Regulation Z and Regulation B of the Board
of Governors of the Federal Reserve System).
"Securities Act" means the Securities Act of 1933.
"Series Documents" means the Transfer and Servicing Agreement, the Indenture
Supplement, the Master Indenture, the Receivables Purchase Agreement, the Fee
Letter and this Agreement.
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"Series 2004-1 Incremental Funded Amount" means the sum of the (i) Class A
Incremental Funded Amount and (ii) Class B Incremental Funded Amount.
"Series 2004-1 Initial Principal Balance" means the sum of the (i) Class A
Initial Principal Balance and (ii) Class B Initial Principal Balance.
"Series 2004-1 Initial Purchase Price" means an amount equal to 100% of the
Series 2004-1 Initial Principal Balance.
"Series 2004-1 Invested Amount" means the sum of the (i) Class A Invested
Amount and (ii) Class B Invested Amount.
"Series 2004-1 Maximum Principal Balance" means an amount equal to the sum of
the (i) Class A Maximum Principal Balance and (ii) Class B Maximum Principal
Balance.
"Series 2004-1 Notes" means the Class A Notes and the Class B Notes.
"Servicer" means Nordstrom fsb, in its capacity as Servicer, or any Successor
Servicer appointed in accordance with the terms of the Transfer and Servicing
Agreement and the Indenture Supplement.
"Third Party Claim" means any claim made by any Person against the
Indemnified Party.
"Transfer and Servicing Agreement" means the Transfer and Servicing Agreement
dated as of April 1, 2002, among the Transferor, the Servicer and the
Indenture Trustee.
"Transferor" means Nordstrom Credit Card Receivables LLC.
"Transferor's Account" means the Transferor's account no. 375-192-7329,
titled "Nordstrom Credit Card Receivables LLC", ABA# 111000012.3, maintained
at the Indenture Trustee (or such other account as may from time to time be
specified by the Transferor in a notice to the Purchaser).
Section 1.02. Other Definitional Provisions.
(a) All capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in the Indenture or the Transfer and
Servicing Agreement, as the case may be. If a term used herein is defined in
both the Indenture and the Transfer and Servicing Agreement, it shall have
the meaning set forth in the Indenture.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.01, and accounting terms partially defined in Section 1.01 to the extent
not defined, shall have the respective meanings given to them under generally
accepted accounting principles. To the extent that the definitions of
accounting terms herein are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained
herein shall control.
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(c) For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, (i) terms used herein
include, as appropriate, all genders and the plural as well as the singular,
(ii) references to this Agreement include all Schedules and Exhibits hereto,
if any, (iii) references to words such as "herein", "hereof" "hereunder" and
the like shall refer to this Agreement as a whole and not to any particular
part, Article or Section within this Agreement, (iv) references to an Article
or Section such as "Article One" or "Section 1.01" and the like shall refer
to the applicable Article or Section of this Agreement, (v) the term
"include" and all variations thereof shall mean "include without limitation",
(vi) the term "or" shall include "and/or", (vii) the term "proceeds" shall
have the meaning ascribed to such term in the UCC, (viii) Section, subsection
and Schedule, as applicable, references contained in this Agreement are
references to Sections, subsections and Schedules in or to this Agreement
unless otherwise specified, (ix) any agreement, instrument or statute defined
or referred to herein or in any instrument or certificate delivered in
connection herewith means such agreement, instrument or statute as from time
to time amended, modified or supplemented and includes (in the case of
agreements or instruments) references to all attachments thereto and
instruments incorporated therein and (x) references to a Person are also to
its successors and permitted assigns.
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ARTICLE TWO
PURCHASE AND SALE
Section 2.01. Purchase and Sale of the Series 2004-1 Notes. On the terms
and subject to the conditions set forth in this Agreement, and in reliance on
the covenants, representations, warranties and agreements herein set forth,
at the Closing the Transferor shall sell to the Purchaser, and the Purchaser
shall purchase, the Series 2004-1 Notes in an initial principal amount equal
to the Series 2004-1 Initial Principal Balance.
Section 2.02. Initial Purchase Price. The Series 2004-1 Notes shall be
purchased at a price equal to the Series 2004-1 Initial Purchase Price.
Section 2.03. Incremental Fundings.
(a) Subject to the terms and conditions of this Agreement and the
Indenture Supplement, from time to time prior to the Purchase Expiration Date
upon receipt by the Purchaser of a Notice of Incremental Funding, the
Purchaser, in its sole and absolute discretion, may make Incremental
Fundings.
(b) Each Incremental Funding shall be subject to the following conditions
precedent that:
(i) the Increase Conditions shall have been satisfied;
(ii) the Transferor and the Servicer shall be in compliance in all
material respects with all of their respective covenants contained in the
Series Documents; and
(iii) at least three Business Days prior to the Incremental Funding
Date, the Purchaser shall have received a Notice of Incremental Funding.
(c) Each Incremental Funding shall be requested in an aggregate principal
amount of $2,000,000 and integral multiples of $500,000 in excess thereof;
provided, that an Incremental Funding may be requested in the entire
remaining Series 2004-1 Maximum Principal Balance.
(d) The purchase price of each Incremental Funding shall equal 100% of
the Series 2004-1 Incremental Funded Amount and shall be paid not later than
1:00 p.m. New York City time on the Incremental Funding Date by wire transfer
of immediately available funds to the Transferor's Account.
Section 2.04. Extension of Purchase Expiration Date. The parties to this
Agreement may mutually agree in writing to the extension of the Purchase
Expiration Date to a date no later than 364 days following the date of such
extension. The Transferor may request such an extension no earlier than 60
days prior to the then applicable Purchase Expiration Date and the Purchaser
will respond to such request no later than the later of 30 days following
such request or the date which is 30 days' prior to the then-applicable
Purchase Expiration Date.
Section 2.05. Reduction or Increase of the Series 2004-1 Maximum Principal
Balance.
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(a) The Transferor may reduce in whole or in part the Series 2004-1
Maximum Principal Balance (but not below the Series 2004-1 Invested Amount)
by giving the Purchaser written notice thereof at least ten Business Days
before such reduction is to take place; provided, however, that any partial
reduction shall be in an aggregate amount of $2,000,000 or any integral
multiples of $500,000 in excess thereof.
(b) The Transferor may request an increase in the Series 2004-1 Maximum
Principal Balance by written notice to the Purchaser at least 30 days before
the date on which such increase is requested to become effective. No such
increase will take effect with respect to any Note unless the Purchaser
agrees thereto.
Section 2.06. Determination of Monthly Interest.
(a) Interest on the Series 2004-1 Notes will be determined pursuant to
Section 4.02 of the Indenture Supplement.
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ARTICLE THREE
CLOSING
Section 3.01. Closing. The closing (the "Closing") of the purchase and sale
of the Series 2004-1 Notes shall take place at 10:00 a.m., New York City
time, at the offices of Sidley Austin Brown & Wood LLP, 555 California
Street, San Francisco, California 94104, on March 31, 2004, or if the
conditions to closing set forth in Article Four of this Agreement shall not
have been satisfied or waived by such date, as soon as practicable after such
conditions shall have been satisfied or waived, or at such other time, date
and place as the parties hereto shall agree upon (the date of the Closing
being referred to herein as the "Closing Date").
Section 3.02. Transactions to be Effected at the Closing. At the Closing,
the Series 2004-1 Notes will be delivered to or upon the order of the
Purchaser. The Series 2004-1 Initial Purchase Price to be paid by NCI will
be credited, in the form of the forgiveness of debt owed by the Bank (the
Transferor's sole economic member) to NCI. The amount of debt owed by the
Bank to NCI that will be forgiven will be an amount equal to the Series 2004-
1 Initial Purchase Price.
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ARTICLE FOUR
CONDITIONS PRECEDENT TO
PURCHASE ON THE CLOSING DATE
The purchase by the Purchaser of the Series 2004-1 Notes is subject to
the satisfaction at the time of the Closing of the following conditions (any
or all of which may be waived by the Purchaser in its sole discretion):
Section 4.01. Performance by the Transferor, the Issuer and the Servicer.
All the terms, covenants, agreements and conditions of the Series Documents
to be complied with and performed by the Transferor, the Issuer and the
Servicer at or before the Closing shall have been complied with and performed
in all material respects.
Section 4.02. Representations and Warranties. Each of the representations
and warranties of the Transferor, the Issuer and the Servicer made in the
Series Documents shall be true and correct in all material respects as of the
time of the Closing (except to the extent they expressly relate to an earlier
or later time).
Section 4.03. Corporate Documents. The Purchaser shall have received copies
of (a) the (i) charter documents and by-laws of Nordstrom fsb, (ii) Board of
Directors resolutions of Nordstrom fsb with respect to the Series Documents
and (iii) incumbency certificate of Nordstrom fsb, each certified by
appropriate corporate authorities and (b) the (i) certificate of formation
and good standing certificate of the Transferor, (ii) charter documents of
the Transferor, (iii) Board of Directors resolutions of the Transferor with
respect to the Series Documents and (iv) incumbency certificate of the
Transferor, each certified by appropriate authorities.
Section 4.04. Opinions of Counsel to Nordstrom fsb and the Transferor.
Counsel to Nordstrom fsb and the Transferor shall have delivered to the
Purchaser favorable opinions, dated as of the Closing Date and reasonably
satisfactory in form and substance to the Purchaser and addressed to the
Purchaser.
Section 4.05. Certificate of the Owner Trustee. The Owner Trustee shall
have delivered to the Purchaser an Officer's Certificate, dated as of the
Closing Date and reasonably satisfactory in form and substance to the
Purchaser.
Section 4.06. Certificate of the Indenture Trustee. The Indenture Trustee
shall have delivered to the Purchaser an Officer's Certificate, dated as of
the Closing Date and reasonably satisfactory in form and substance to the
Purchaser.
Section 4.07. Financing Statements. The Purchaser shall have received
evidence satisfactory to it of the completion of all recordings,
registrations and filings as may be necessary or, in its opinion, desirable
to perfect or evidence (i) the assignments by Nordstrom fsb to the Transferor
and by the Transferor to the Issuer of their respective ownership interests
in the Receivables and the proceeds thereof and (ii) the security interest
granted by the Issuer to the Indenture Trustee in the Receivables and the
proceeds thereof, including:
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(i) acknowledgment copies of all UCC financing statements and
assignments that have been filed in the offices of the Secretary of State of
the applicable States and in the appropriate office or offices of such other
locations as may be appropriate and
(ii) certified copies of requests for information (Form UCC-1) (or a
similar search report certified by parties acceptable to the Purchaser and
its counsel) dated a date reasonably near the Closing Date and listing all
effective financing statements which name Nordstrom fsb, the Transferor or
the Issuer, as seller, assignor or debtor and which are filed in all
jurisdictions in which the filings were or will be made, together with copies
of such financing statements.
Section 4.08. Documents. The Purchaser shall have received a duly executed
counterpart of each of the Series Documents and each and every document or
certification delivered by any party in connection with any of such
agreements, and each such document shall be in full force and effect.
Section 4.09. No Actions or Proceedings. No action, suit, proceeding or
investigation by or before any Governmental Authority shall have been
instituted to restrain or prohibit the consummation of, or to invalidate, the
transactions contemplated by the Series Documents and the documents related
thereto in any material respect.
Section 4.10. Approvals and Consents. All Governmental Actions of all
Governmental Authorities required with respect to the transactions
contemplated by the Series Documents and the other documents related thereto
shall have been obtained or made.
Section 4.11. Officer's Certificates. The Purchaser shall have received
Officer's Certificates from the Transferor, the Issuer and the Servicer in
form and substance reasonably satisfactory to the Purchaser, dated as of the
Closing Date, certifying as to the satisfaction of the conditions set forth
in Sections 4.01 and 4.02 with respect to the Transferor, the Issuer and the
Servicer, respectively.
Section 4.12. Documents Relating to Credit Enhancement.
(a) The Purchaser shall have received evidence that the Class B Initial
Principal Balance is at least equal to the Class B Required Amount.
Section 4.13. Accounts. The Purchaser shall have received evidence that the
Collection Account and the Special Funding Account have been established in
accordance with the terms of the Indenture.
Section 4.14. Other Documents. The Transferor shall have furnished to the
Purchaser such other information, certificates and documents as the Purchaser
may reasonably request.
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ARTICLE FIVE
REPRESENTATIONS AND WARRANTIES OF THE NORDSTROM PARTIES
Each Nordstrom Party hereby makes the following representations and
warranties to the Purchaser, as to itself, as of the Closing Date and as of
each Incremental Funding Date, and the Purchaser shall be deemed to have
relied on such representations and warranties in purchasing the Series 2004-1
Notes on the Closing Date and in making (or committing to make) each
Incremental Funding on each Incremental Funding Date. The representations
and warranties set forth in this Article shall survive the sale of the Series
2004-1 Notes to the Purchaser. Upon discovery by either Nordstrom Party or
the Purchaser of a breach of any of the following representations and
warranties, the party discovering such breach shall give prompt written
notice to the other. Any document, instrument, certificate or notice
delivered to the Purchaser hereunder shall be deemed to be a representation
and warranty by such Nordstrom Party.
Section 5.01. Transfer and Servicing Agreement. The Transferor repeats and
reaffirms to the Purchaser the representations and warranties of the
Transferor set forth in Sections 2.03 and 2.04 of the Transfer and Servicing
Agreement and represents and warrants that such representations and
warranties are true and correct. Nordstrom fsb repeats and reaffirms to the
Purchaser the representations, warranties and covenants of the, Servicer set
forth in Section 3.03 of the Transfer and Servicing Agreement and represents
and warrants that all such representations and warranties are true and
correct.
Section 5.02. Corporate Existence and Power. The Transferor is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware. Nordstrom fsb is a federal savings bank
duly organized, validly existing and in good standing under the laws of the
United States. Each Nordstrom Party has all power, authority and legal right
and all material governmental licenses, authorizations, consents and
approvals required to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted in
each jurisdiction in which it presently owns properties and presently
conducts its business, and to, as applicable, execute and deliver each Series
Document to which it is a party. Each Nordstrom Party is duly qualified to
do business and is in good standing (or is exempt from such requirements) in
any jurisdiction in which the nature of its business requires it to be so
qualified.
Section 5.03. Corporate and Governmental Authorization; Contravention. The
execution and delivery by each Nordstrom Party, as applicable, of the Series
Documents to which such Nordstrom Party is a party and the performance by
each Nordstrom Party of its respective obligations thereunder are within its
official powers, have been duly authorized by all necessary corporate or
limited liability company action, require no action by or in respect of, or
filing with, any Governmental Authority or official thereof and do not
contravene, or constitute a default under, any provision of applicable law,
rule or regulation or of the charter or by-laws of Nordstrom fsb, the limited
liability company agreement of the Transferor or of any agreement, judgment,
injunction, order, writ, decree or other instrument binding upon such
Nordstrom Party or result in the creation or imposition of any Lien on the
assets of such Nordstrom Party, other than pursuant to the Series Documents.
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Section 5.04. Binding Effect. Each Series Document to which a Nordstrom
Party is a party constitutes the legal, valid and binding obligation of such
Nordstrom Party, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, insolvency, moratorium or other similar laws
affecting the rights of creditors generally.
Section 5.05. No Conflict. The execution and delivery of the Series
Documents to which such Nordstrom Party is a party, the performance of the
transactions contemplated by the Series Documents to which such Nordstrom
Party is a party and the fulfillment of the terms hereof and thereof 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 Requirement of Law applicable to such Nordstrom Party or any indenture,
contract, agreement, mortgage, deed of trust or other material instrument to
which such Nordstrom Party is a party or by which it or any of its properties
are bound.
Section 5.06. No Proceedings. There are no actions, suits, proceedings or
investigations pending or, to the best knowledge of each Nordstrom Party,
threatened, against or affecting such Nordstrom Party, as applicable, or any
Affiliate of such Nordstrom Party or their respective properties, in or
before any court, regulatory body, administrative agency, arbitrator or other
tribunal or governmental instrumentality (i) asserting the invalidity of any
Series Document to which such Nordstrom Party is a party, (ii) seeking to
prevent the issuance of the Series 2004-1 Notes or the consummation of any of
the transactions contemplated by the Series 2004-1 Notes or any Series
Document to which such Nordstrom Party is a party, (iii) seeking any
determination or ruling that, individually or in the aggregate, in the
reasonable judgment of such Nordstrom Party, would materially and adversely
affect the performance by such Nordstrom Party of its obligations under the
Series 2004-1 Notes or any Series Document to which such Nordstrom Party is a
party or (iv) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of the Series 2004-1 Notes or
any Series Document to which such Nordstrom Party is a party.
Section 5.07. Transferor Amount. As of the Closing Date and each
Incremental Funding Date, the Transferor Interest is not less than the
Minimum Transferor Interest and the aggregate amount of Principal Receivables
is not less than the Required Minimum Principal Balance.
Section 5.08. No Pay Out Event. After giving effect to the (i) issuance of
the Series 2004-1 Notes, and the acquisition by the Purchaser of the Series
2004-1 Notes, and (ii) occurrence of any Incremental Funding pursuant to
Section 2.03, no event shall have occurred and not been waived or be
continuing and no condition shall exist which would constitute a Pay Out
Event or Potential Pay Out Event.
Section 5.09. Accuracy of Information. Each document, book, record, report,
exhibit, schedule or other information furnished or to be furnished at any
time by each Nordstrom Party to the Purchaser for purposes of or in
connection with this Agreement, the Indenture Supplement or any transaction
contemplated hereby or thereby is or will be true and accurate in all
material respects on the date such information is stated or certified.
Section 5.10. Taxes. Each Nordstrom Party has filed all tax returns
(Federal, state and local) required to be filed by such Nordstrom Party and
has paid or made adequate provision for
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the payment of all, taxes, assessments and other governmental charges
relating to such Nordstrom Party.
Section 5.11. Use of Proceeds. No proceeds of the acquisition of the Series
2004-1 Notes or any Incremental Funding will be used by the Transferor to
acquire any security in any transaction which is subject to Sections 13 or 14
of the Securities Exchange Act of 1934.
Section 5.12. Value. Nordstrom fsb has received or will receive reasonably
equivalent value in return for the transfer of the Receivables and the other
property transferred to the Transferor. The Transferor has received or will
receive reasonably equivalent value in return for the transfer of the
Receivables and other property transferred to the Issuer.
Section 5.13. ERISA. Each Nordstrom Party and its ERISA Affiliates is in
compliance in all material respects with ERISA and no lien exists in favor of
the PBGC on any of the Receivables.
Section 5.14. Place of Business. The principal executive offices of
Nordstrom fsb are in Englewood, Colorado. Electronic records concerning the
Receivables and related contracts are maintained by Nordstrom fsb's service
provider located in Columbus, Georgia. The principal executive offices of
the Transferor are in Englewood, Colorado.
Section 5.15. Investment Company. Neither the Transferor nor the Issuer is
required to be registered as an "investment company" within the meaning of
the Investment Company Act of 1940.
Section 5.16. No Liens. The sale, assignment and conveyance of the Series
2004-1 Notes and the consummation of the transactions contemplated herein
will not result in the creation or imposition of any Lien, charge or
encumbrance upon any of the property or assets of any Nordstrom Party or any
of its Affiliates pursuant to the terms of any indenture, mortgage, deed of
trust, loan agreement or other agreement (including this Agreement) or
instrument to which such Nordstrom Party or any of its Affiliates is bound or
to which any of its property or assets is subject.
Section 5.17. Authorization. The Transferor has directed the Issuer to
issue the Series 2004-1 Notes.
Section 5.18. No Amendments. Since April 1, 2002, there have been no
amendments (other than the amendments referred to herein), modifications or
waivers of the terms of the Master Indenture or the Transfer and Servicing
Agreement.
Section 5.19. No Claims. No Person that is party to the Master Indenture or
Transfer and Servicing Agreement has any defenses, counterclaims or right of
set-off with respect to either agreement.
Section 5.20. Agreements Enforced. Except as otherwise agreed by the
parties thereto, each of the Master Indenture and the Transfer and Servicing
Agreement have been strictly enforced in accordance with their terms by each
party thereto.
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Section 5.21. Series 2004-1 Notes. The Series 2004-1 Notes have been duly
and validly authorized, and, when executed and authenticated in accordance
with the terms of the Indenture, and delivered to and paid for in accordance
with this Agreement, will be duly and validly issued and outstanding and will
be entitled to the benefits of the Transfer and Servicing Agreement and the
Indenture.
Section 5.22. Issuer Existence and Authorization. The Issuer is validly
existing under the laws of the State of Delaware.
Section 5.23. Financial Condition of Nordstrom Parties. On the date hereof
and on each Incremental Funding Date, neither Nordstrom Party is insolvent
nor the subject of any insolvency proceeding.
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ARTICLE SIX
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby makes the following representations and warranties
to the Transferor and Nordstrom fsb on which the Transferor and Nordstrom fsb
shall rely in entering into this Agreement.
Section 6.01. Organization. The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Colorado, with power and authority to own its properties and to transact the
business in which it is now engaged.
Section 6.02. Authority, Etc. The Purchaser has all requisite power and
authority to enter into and perform its obligations under this Agreement and
to consummate the transactions contemplated hereby and thereby. The
execution and delivery by the Purchaser of this Agreement and the
consummation by the Purchaser of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate action on the
part of the Purchaser. This Agreement has been duly and validly executed and
delivered by the Purchaser and constitutes a legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms, subject as to enforcement to bankruptcy, reorganization,
insolvency, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights and to general principles of
equity. Neither the execution and delivery by the Purchaser of this
Agreement nor the consummation by it of any of the transactions contemplated
hereby, nor the fulfillment by it of the terms hereof, will conflict with, or
violate, result in a breach of or constitute a default under any term or
provision of the articles of incorporation or by-laws of the Purchaser or any
Governmental Rule applicable to the Purchaser.
Section 6.03. Securities Act. The Series 2004-1 Notes purchased by the
Purchaser pursuant to this Agreement will be acquired for investment only and
not with a view to any public distribution thereof, and the Purchaser will
not offer to sell or otherwise dispose of its interest in the Series 2004-1
Notes so acquired by it (or any interest therein) in violation of any of the
registration requirements of the Securities Act or any applicable state
securities laws. The Purchaser acknowledges that it has no right to require
the Transferor or any other Person to register under the Securities Act or
any state securities law the Series 2004-1 Notes to be acquired by the
Purchaser pursuant to this Agreement.
The Purchaser has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Series 2004-1 Notes and the Purchaser is able to bear the
economic risk of such investment. The Purchaser has reviewed the Series
Documents and has had the opportunity to perform due diligence with respect
thereto and to ask questions of and receive answers from the transferor and
its representatives concerning the Transferor, the Issuer and the Series
2004-1 Notes. The Purchaser is an "accredited investor" as defined in Rule
501 of the Securities Act.
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ARTICLE SEVEN
COVENANTS
Section 7.01. Affirmative Covenants of the Nordstrom Parties. So long as
the Series 2004-1 Notes remain outstanding, each Nordstrom Party, as the case
may be, hereby covenants, as to itself, as set forth below:
(a) Financial Reporting. Such Nordstrom Party will maintain a system of
accounting established and administered in accordance with GAAP and Nordstrom
fsb will furnish to the Purchaser, upon written its request:
(i) Annual Reporting. Within 120 days after the close of each
fiscal year of Nordstrom fsb, the most recent annual thrift financial report
of Nordstrom fsb, certified by its president or any vice president.
(ii) Quarterly Reporting. Within 60 days after the close of the
first three quarterly periods of each fiscal year of Nordstrom fsb, the most
recent quarterly call report of Nordstrom fsb, certified by its president or
any vice president.
(b) Notice of Pay Out Events or Potential Pay Out Events. As soon as
possible and in any event within two days after the occurrence of each Pay
Out Event or each Potential Pay Out Event, a statement of the president or
any vice president of such Nordstrom Party setting forth details of such Pay
Out Event or Potential Pay Out Event and the action which such Nordstrom
Party proposes to take with respect thereto.
(c) Change in Credit Card Guidelines and Debt Ratings. Within ten days
after the date any material change in or material amendment to the Credit
Card Guidelines occurs, a copy of the Credit Card Guidelines then in effect
indicating such change or amendment; provided, however, if such change or
amendment would be reasonably likely to materially and adversely affect the
collectibility of the Receivables or generally decrease the credit quality of
the Receivables overall, such change or amendment will be provided to the
Purchaser at least 30 days in advance of such change or amendment and require
the Purchaser's prior written consent thereto.
(d) Credit Card Guidelines. Within 90 days after the close of such
Nordstrom Party's fiscal year, a complete copy of the Credit Card Guidelines
then in effect.
(e) ERISA. Promptly after the filing or receiving thereof, copies of all
reports and notices with respect to any Reportable Event (as defined in
Article IV of ERISA) which such Nordstrom Party or any ERISA Affiliate of
such Nordstrom Party files under ERISA with the Internal Revenue Service, the
PBGC or the United States Department of Labor or which such Nordstrom Party
or any ERISA Affiliate of such Nordstrom Party receives from the Internal
Revenue Service, the PBGC or the United States Department of Labor.
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(f) Other Information. Such other information (including non-financial
information) as the Purchaser may from time to time reasonably request with
respect to the Transferor.
(g) Corporate Existence: Conduct of Business. The Transferor will
preserve and maintain its existence as a limited liability company duly
organized and existing under the laws of the State of Delaware. Nordstrom
fsb will preserve and maintain its existence as a federal savings bank duly
organized and existing under the laws of the United States. Each Nordstrom
Party will carry on and conduct its business in substantially the same manner
and in substantially the same fields of enterprise as it is presently
conducted and do all things necessary to remain duly organized, validly
existing and in good standing under its jurisdiction of formation or
organization, as applicable, and maintain all requisite authority to conduct
its business in each jurisdiction in which its business is conducted.
(h) Compliance with Laws. Each Nordstrom Party will comply with all
laws, rules, regulations, orders, writs, judgments, injunctions, decrees or
awards applicable to it, its properties, the Accounts or any part thereof,
except where the failure to so comply could not reasonably be expected to
have a Material Adverse Effect.
(i) Furnishing of Information and Inspection of Records. Each Nordstrom
Party will furnish to the Purchaser, from time to time, such information with
respect to the Receivables as the Purchaser may reasonably request, including
listings identifying the Obligor and the outstanding balance for each
Receivable. Each Nordstrom Party will at any time and from time to time
during regular business hours, permit the Purchaser, or its agents or
representatives, to (i) examine and make copies of and abstracts from all
records and (ii) visit the offices and properties of such Nordstrom Party for
the purpose of examining such Records, and to discuss matters relating to
Receivables or such Nordstrom Party's performance hereunder and under the
other Series Documents to which such Nordstrom Party is a party with any of
the officers, directors, employees or independent public accountants of such
Nordstrom Party having knowledge of such matters.
(j) Keeping of Records, and Books of Account. Nordstrom fsb will cause
the Servicer will maintain and implement administrative and operating
procedures (including an ability to recreate records evidencing Receivables
in the event of the destruction of the originals thereof), and keep and
maintain, all documents, books, records and other information reasonably
necessary or advisable for the collection of all Receivables (including
records adequate to permit the daily identification of each new Receivable
and all Collections of and adjustments to each existing Receivable).
Nordstrom fsb will cause the Servicer to give the Purchaser notice of any
material change in the administrative and operating procedures of the
Servicer referred to in the previous sentence.
(k) Transfer and Servicing Agreement. The Transferor will comply with
the covenants set forth in Sections 2.07 and 2.08 of the Transfer and
Servicing Agreement. The Servicer will comply with the covenants set forth in
Section 3.03 of the Transfer and Servicing Agreement.
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(l) Notice of Adverse Claims. Each Nordstrom Party will advise the
Purchaser promptly, in reasonable detail, (i) of any Lien asserted or a claim
by a Person that is not an Obligor made against any of the Receivables, (ii)
of the occurrence of any breach by such Nordstrom Party of any of its
representations, warranties and covenants contained herein or in the Series
Documents and (iii) of the occurrence of any other event which would have a
material adverse effect on the Indenture Trustee's interest in the
Receivables or the collectibility thereof.
(m) Protection of Interest in Receivables. Each Nordstrom Party shall
execute (if applicable) and file such security interest continuation
statements and any other documents reasonably requested by the Indenture
Trustee or the Purchaser or which may be required by law to fully preserve
and protect the interest of the Indenture Trustee in and to the Receivables.
(n) Notice of Judgments, Material Adverse Effects and Events of Default.
Each Nordstrom Party will notify the Purchaser in writing of any of the
following promptly upon learning of the occurrence thereof, describing the
same, and if applicable, the steps being taken with respect thereto:
(i) (A)(1) The entry of any judgment or decree against the Servicer
if such judgment or decree exceeds $10,000,000 or the aggregate amount of all
judgments and decrees then outstanding against the Servicer exceeds
$50,000,000 and (2) the institution of any litigation, arbitration proceeding
or governmental proceeding against the Servicer which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect and
(B) the entry of any judgment or decree of the institution of any litigation,
arbitration proceeding or governmental proceeding against Transferor or any
of its Affiliates.
(ii) The occurrence of any event or condition that has had, or could
reasonably be expected to have, a Material Adverse Effect.
(iii) The occurrence of a default or an event of default under any
other financing arrangement to which such Nordstrom Party is a debtor or an
obligor.
(o) Compliance with Credit Card Agreements and Credit Card Guidelines.
Such Nordstrom Party will and cause any Account Originator to timely and
fully (i) perform and comply with all provisions, covenants and other
promises required to be observed by it under the Credit Card Agreements
related to the Receivables and (ii) comply in all respects with the Credit
Card Guidelines in regard to each Receivable and the related Credit Card
Agreement, except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect.
(p) Transfers of Receivables. With respect to the transfer of the
Receivables, (i) from Nordstrom fsb to the Transferor under the Receivables
Purchase Agreement and (ii) from the Transferor to the Issuer under the
Transfer and Servicing Agreement, each such transfer shall be effected under,
and in strict compliance with the terms of the
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applicable transfer agreement, including the terms relating to the amount and
timing of payments to be made with respect to the purchase price for the
related Receivables.
Section 7.02. Covenants. Each Nordstrom Party will duly observe and perform
each of its covenants set forth in the other Series Documents.
Section 7.03. Negative Covenants of the Nordstrom Parties. So long as the
Series 2004-1 Notes remain outstanding, each Nordstrom Party hereby covenants
as to itself, as set forth below:
(a) Amendments. No Nordstrom Party will make, nor will it permit any
Person to make, any amendment, modification or change to, or provide any
waiver under any Series Document without the prior written consent of the
Purchaser; provided, however, that no consent of the Purchaser will be
required for any amendment to any Series Document if the Transferor shall
have delivered an Officer's Certificate to the Purchaser stating that such
proposed amendment will not, in such officer's good faith judgment,
materially adversely affect the interest of any Series 2004-1 Noteholder.
(b) No Sales, Liens, Etc. Except (i) as otherwise provided herein, (ii)
as contemplated in the Master Indenture (relating to the issuance of one or
more Series) and (iii) as otherwise provided in the other Series Documents,
such Nordstrom Party will not sell, assign (by operation of law or otherwise)
or otherwise dispose of, or create or suffer to exist any Lien upon (or the
filing of any financing statement) or with respect to any of the Receivables.
(c) No Extension or Amendment of Receivables. Except as otherwise
permitted by the Series Documents, the Servicer will not extend, amend or
otherwise modify the terms of any Receivable.
(d) No Change in Business or Account Guidelines. Neither Nordstrom Party
will make any change in the character of its business or in the Credit Card
Guidelines, which change would, in either case, delay the timing of
recognition of the charge-off or write-off of any delinquent or fraudulent
Receivable or any Receivable with respect to which the related Obligor has
declared bankruptcy, impair the collectibility of any Receivable or otherwise
have a material adverse effect on the Indenture Trustee's interest in the
Receivables, including any change which would have the effect of diminishing
the creditworthiness of Obligors with respect to Additional Accounts or
Supplemental Accounts.
(e) Change of Name, Etc. Neither Nordstrom Party will without providing
30 days' notice to the Purchaser and without filing such amendments to any
previously filed financing statements as the Purchaser may require, change
(i) the location of its principal executive office or the location of the
offices where the records relating to the accounts are kept or the
jurisdiction of its organization or (ii) its name, identity or corporate
structure in any manner which would, could or might make any financing
statement or continuation statement filed by such Nordstrom Party in
accordance with the Series Documents seriously misleading within the meaning
of Sections 9-506 and 9-507
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of the UCC as in effect in the relevant UCC States or any applicable
enactment of the UCC.
(f) ERISA Matters. Such Nordstrom Party will not (i) engage or permit
any of its respective ERISA Affiliates to engage in any prohibited
transaction (as defined in Section 4975 a the Code and Section 406 of ERISA)
for which an exemption is not available or has not previously been obtained
from the United States Department of Labor; (ii) permit to exist any
accumulated funding deficiency (as defined in Section 302(a) of ERISA and
Section 412(a) of the Code) or funding deficiency with respect to any Benefit
Plan other than a Multiemployer Plan; (iii) fail to make any payments to any
Multiemployer Plan that such Nordstrom Party or any ERISA Affiliate of such
Nordstrom Party is required to make under the agreement relating to such
Multiemployer Plan or any law pertaining thereto; (iv) terminate any Benefit
Plan so as to result in any liability; or (v) permit to exist any occurrence
of any reportable event described in Title IV of ERISA which represents a
material risk of a liability to the Transferor, or any ERISA Affiliate of
such Nordstrom Party under ERISA or the Code, if such prohibited
transactions, accumulated funding deficiencies, payments, terminations and
reportable events occurring within any fiscal year of such Nordstrom Party,
in the aggregate, involve a payment of money) or an incurrence of liability
by such Nordstrom Party or any ERISA Affiliate of such Nordstrom Party in an
amount in excess of $100,000.
(g) Transfer of Transferor Interest. Except as permitted by the Series
Documents, the Transferor shall not assign, transfer or otherwise convey to
any Person other than NCI or an Affiliate of the Transferor any interest in
the Transferor Interest.
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ARTICLE EIGHT
ADDITIONAL COVENANTS
Section 8.01. Legal Conditions to Closing. The parties hereto will take all
reasonable action necessary to obtain (and will cooperate with one another in
obtaining) any consent, authorization, permit, license, franchise, order or
approval of, or any exemption by, any Governmental Authority or any other
Person, required to be obtained or made by it in connection with any of the
transactions contemplated by this Agreement.
Section 8.02. Expenses. Whether or not the Closing takes place, except as
otherwise expressly provided herein or in the Fee Letter, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall (as between the Transferor and the Purchaser) be
paid by the Transferor.
Section 8.03. Mutual Obligations. On and after the Closing, each party
hereto will do, execute and perform, as applicable, all such other acts,
deeds and documents as the other parties may from time to time reasonably
require in order to carry out the intent of this Agreement.
Section 8.04. Restrictions on Transfer. The Purchaser agrees that it will
comply with the restrictions on transfer of the Series 2004-1 Notes set forth
in the Indenture and that it will resell the Series 2004-1 Notes only in
compliance with such restrictions.
Section 8.05. Consents, Etc. The Purchaser agrees not to unreasonably
withhold or delay its consent to any amendment or other matter requiring
consent of the Series 2004-1 Noteholders under a provision of any Series
Document to the extent that such provision specifies that such consent is not
to be unreasonably withheld or delayed.
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ARTICLE NINE
INDEMNIFICATION
Section 9.01. Indemnities by the Nordstrom Parties. Without limiting any
other rights which the Purchaser may have hereunder or under applicable law,
(i) the Transferor hereby agrees to indemnify the Indemnified Parties from
and against any and all Indemnified Amounts awarded against or incurred by
any Indemnified Party in any action or proceeding between the Transferor and
any of the Indemnified Parties or between any of the Indemnified Parties and
any third party or otherwise arising out of or as a result of this Agreement,
the other Series Documents, the ownership or maintenance, either directly or
indirectly, by the Purchaser of the Series 2004-1 Notes or any of the other
transactions contemplated hereby or thereby, and (ii) Nordstrom fsb hereby
agrees to indemnify each Indemnified Party for Indemnified Amounts awarded
against or incurred by any of them in any action or proceeding (including in
its capacity as Servicer) between Nordstrom fsb and any of the Indemnified
Parties or between any of the Indemnified Parties and any third party or
otherwise arising out of or as a result of this Agreement, the other Series
Documents, the ownership or maintenance, either directly or indirectly, of
the Series 2004-1 Notes or any of the other transactions contemplated hereby
or thereby, excluding, in each case, (a) Indemnified Amounts to the extent a
final judgment of a court of competent jurisdiction holds that such
Indemnified Amounts result from gross negligence or willful misconduct on the
part of an Indemnified Party seeking indemnification or (b) Indemnified
Amounts to the extent the same include losses in respect of Receivables that
are uncollectible on account of the insolvency, bankruptcy or lack of
creditworthiness of the related Obligor. Without limiting the generality of
the foregoing, each Nordstrom Party shall indemnify each Indemnified Party
for Indemnified Amounts relating to or resulting from:
(i) any representation or warranty made by any Nordstrom Party or
any officer of such Person under or in connection with this Agreement, any
other Series Document or any other information or report delivered by such
Person pursuant hereto or thereto, which shall have been false or incorrect
in any material respect when made or deemed made;
(ii) the failure by the Account Originator, Nordstrom fsb (including
in its capacity as Servicer) or the Transferor to comply with any applicable
law, rule or regulation with respect to any Receivable, or the nonconformity
of any Receivable with any such applicable law, rule or regulation;
(iii) the failure to vest and maintain vested in the Indenture
Trustee, on behalf of the Trust, a first priority perfected security interest
in the Collateral free and clear of any Lien;
(iv) any failure of the Account Originator, Nordstrom fsb (including
in its capacity as Servicer) or the Transferor to perform its duties,
covenants or other obligations in accordance with the provisions of this
Agreement or any other Series Document;
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(v) any products liability, personal injury or damage suit or other
similar claim arising out of or in connection with merchandise, insurance or
services that are the subject of any Receivable;
(vi) any dispute, claim, offset or defense (other than discharge in
bankruptcy) of the Obligor to the payment of any Receivable (including a
defense based on such Receivable not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its
terms), or any other claim resulting from the sale of merchandise or services
related to such Receivable or the furnishing or failure to furnish such
merchandise or services;
(vii) the commingling of Collections of Receivables at any time with
other funds;
(viii) any investigation, litigation or proceeding related to or
arising from this Agreement or any other Series Document, the transactions
contemplated hereby, the use of the proceeds of an Incremental Funding, the
ownership of the Series 2004-1 Notes or any other investigation, litigation
or proceeding relating to the Account Originator, Nordstrom fsb (including in
its capacity as Servicer) or the Transferor in which any Indemnified Party
becomes involved as a result of any of the transactions contemplated hereby;
(ix) any inability to litigate any claim against any Obligor in
respect of any Receivable as a result of such Obligor being immune from civil
and commercial law and suit on the grounds of sovereignty or otherwise from
any legal action, suit or proceeding;
(x) any failure of the Trust to acquire and maintain legal and
equitable title to, and ownership of any Receivable free and clear of any
Lien (other than as created under the Series Documents or created in
connection with the issuance of any other Series) or any failure of the
Transferor to give reasonably equivalent value to Nordstrom fsb under the
Receivables Purchase Agreement in consideration of the transfer by Nordstrom
fsb of any Receivable, or any attempt by any Person to void such transfer
under statutory provisions or common law or equitable action;
(xi) the failure to have filed, or any delay in filing, financing
statements or other similar instruments or documents under the UCC of any
applicable jurisdiction or other applicable laws with respect to any
Receivable with respect thereto, and the proceeds of any thereof, and
(xii) any action or omission by the Account Originator, Nordstrom
fsb (including in its capacity as Servicer) or the Transferor which reduces
or impairs the Purchaser with respect to any Receivable or the value of any
such Receivable.
Section 9.02. Procedure. In order for an Indemnified Party to be entitled
to any indemnification provided for under this Agreement in respect of,
arising out of, or involving a Third Party Claim, such Indemnified Party must
notify the Applicable Indemnifying Party in writing of the Third Party Claim
within a reasonable time after receipt by such Indemnified Party of written
notice of the Third Party Claim unless the Applicable Indemnifying Party
shall have
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previously obtained actual knowledge thereof. Thereafter, the Indemnified
Party shall deliver to the Applicable Indemnifying Party, within a reasonable
time after the Indemnified Party's receipt thereof, copies of all notices and
documents (including court papers) received by the Indemnified Party relating
to the Third Party Claim.
Section 9.03. Defense of Claims. If a Third Party Claim is made against an
Indemnified Party, (i) the Applicable Indemnifying Party will be entitled to
participate in the defense thereof and, (ii) if it so chooses, to assume the
defense thereof with counsel selected by the Applicable Indemnifying Party,
provided that in connection with such assumption such counsel is not
reasonably objected to by the Indemnified Party. Should the Applicable
Indemnifying Party so elect to assume the defense of a Third Party Claim, the
Applicable Indemnifying Party will not be liable to the Indemnified Party for
any legal expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof. If the Applicable Indemnifying Party
elects to assume the defense of a Third Party Claim, the Indemnified Party
will (i) cooperate in all reasonable respects with the Applicable
Indemnifying Party in connection with such defense and (ii) not admit any
liability with respect to, or settle, compromise or discharge such Third
Party Claim without the Applicable Indemnifying Party's prior written
consent, as the case may be. If the Applicable Indemnifying Party shall
assume the defense of any Third Party Claim, the Indemnified Party shall be
entitled to participate in (but not control) such defense with its own
counsel at its own expense. If the Applicable Indemnifying Party does not
assume the defense of any such Third Party Claim, the Indemnified Party may
defend the same in such manner as it may deem appropriate, including settling
such claim or litigation after giving notice to the Applicable Indemnifying
Party of such terms and the Applicable Indemnifying Party promptly reimburse
the Indemnified Party upon written request. Anything contained in this
Agreement to the contrary notwithstanding, neither Applicable Indemnifying
Party shall be entitled to assume the defense of any part of a Third Party
Claim that seeks an order, injunction or other equitable relief or relief for
other than money damages against the Indemnified Party.
Section 9.04. Indemnity for Taxes and Expenses.
(a) If after the date hereof, the adoption of any Governmental Rule or
bank regulatory guideline or any amendment or change in the interpretation of
any existing or future Governmental Rule or bank regulatory guideline by any
Governmental Authority charged with the administration, interpretation or
application thereof, or the compliance with any directive of any Governmental
Authority (in the case of any bank regulatory guideline, whether or not
having the force of Governmental Rule):
(i) shall subject any Indemnified Party to any tax, duty, deduction
or other charge with respect to the Receivables, the Series 2004-1 Notes,
this Agreement or any other Series Document, or payments of amounts due
thereunder, or shall change the basis of taxation of payments to any
Indemnified Party of amounts payable in respect thereof (except for changes
in the rate of general corporate, franchise, net income or other income tax
(including by means of withholding) imposed on such Indemnified Party by the
United States, the jurisdiction in which such Indemnified Party's principal
executive office is located or any other jurisdiction in which the
Indemnified Party would be subject to such tax even if the transactions
contemplated by this Agreement had not occurred);
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(ii) shall impose, modify or deem applicable any reserve, capital,
special deposit or similar requirement (including any such requirement
imposed by the Board of Governors of the Federal Reserve System) against
assets of, deposits with or for the account of, or credit extended by, any
Indemnified Party or shall impose on any Indemnified Party or on the United
States market for certificates of deposit or the London interbank market any
other condition affecting the Receivables, the Series 2004-1 Notes, this
Agreement, the other Series Documents or payments of amounts due thereunder
(including with respect to Eurocurrency liability reserves); or
(iii) imposes upon any Indemnified Party any other cost or expense
(including reasonable attorneys' fees and expenses, and expenses of
litigation or preparation therefor in contesting any of the foregoing if such
a contest is requested by the Applicable Indemnifying Party) with respect to
the Receivables, the Series 2004-1 Notes, any Series Document or payments of
amounts due hereunder or thereunder;
and the result of any of the foregoing is to increase the cost or reduce the
payments to such Indemnified Party with respect to the Receivables, the
Series 2004-1 Notes, this Agreement, the other Series Documents or payments
of amounts due thereunder or the obligations thereunder or the funding of any
purchases (including Incremental Fundings) with respect thereto by any
Purchaser, by an amount deemed by such Indemnified Party to be material, then
the Transferor agrees to pay such Indemnified Party, within ten days after
demand by such Indemnified Party, such additional amount or amounts as will
compensate such Indemnified Party for such increased cost or reduced
payments.
(b) Any Indemnified Party who makes a demand for payment of increased
costs pursuant to Section 9.04(a) shall promptly deliver to the Transferor a
certificate setting forth in reasonable detail the computation of such
increased costs and specifying the basis therefor. In the absence of
manifest error, such Note shall be conclusive and binding for all purposes.
Each Indemnified Party shall use reasonable efforts to mitigate the effect
upon the Transferor of any such increased costs; provided, it shall not be
obligated to take any action that it determines would be disadvantageous to
it or inconsistent with its policies.
(c) No Indemnified Party shall be permitted to recover any additional or
increased cost described in this Section on a retroactive basis for a period
of time that is morn than 90 days prior to the delivery of a notice to the
Transferor that such additional or increased cost has commenced accruing or
been incurred.
Section 9.05. Costs, Expenses and Taxes.
(a) The Transferor shall be obligated to pay on demand to the Purchaser
(i) all reasonable costs and expenses in connection with the preparation,
execution and delivery of this Agreement, the other documents to be delivered
hereunder or in connection herewith and any requested amendments, waivers or
consents or examination or visit by the Purchaser pursuant to Section
7.01(i), including the reasonable fees and out-of-pocket expenses of counsel
for the Purchaser, with respect thereto and with respect to advising the
Purchaser as to its rights and remedies under this Agreement and the other
documents delivered hereunder or in connection
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herewith and (ii) all costs and expenses, if any, in connection with the
enforcement of this Agreement and the other documents delivered hereunder or
in connection herewith.
(b) In addition, the Transferor shall be obligated to pay on demand any
and all stamp's and other taxes and fees payable in connection with the
execution, delivery, filing and recording of this Agreement, the Series 2004-
1 Notes or the other documents and agreements to be delivered hereunder and
agrees to hold the Purchaser harmless from and against any liabilities with
respect to or resulting from any delay in paying or omission to pay such
taxes and fees.
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ARTICLE TEN
MISCELLANEOUS
Section 10.01. Waivers and Amendments. No failure or delay on the part of
the Purchaser in exercising any power, right or remedy under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise
of any such power, right or remedy preclude any other further exercise
thereof or the exercise of any other power, right or remedy. The rights and
remedies herein provided shall be cumulative and nonexclusive of any rights
or remedies provided by law. Any provision of this Agreement may be amended
if, but only if, such amendment is in writing and signed by the parties
hereto.
Section 10.02. Notices. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including
telecopies, telegraphic, telex or cable communication) and mailed,
telecopied, telegraphed, cabled or delivered, as to each party hereto, at its
address set forth in Schedule I or at such other address as shall be
designated by such party in a written notice to the other party hereto. All
such notices and communications shall, when mailed, telecopied, telegraphed
or cabled, be effective when deposited in the mails, confirmed by telephone,
delivered to the telegraph company or delivered to the cable company,
respectively.
Section 10.03. Binding Effect; Assignability.
(a) This Agreement shall be binding upon and inure to the benefit of the
Transferor, Nordstrom fsb and the Purchaser (including any subsequent holders
of the Series 2004-1 Notes); provided, however, that the Transferor shall not
have the right to assign its rights hereunder or any interest herein (by
operation of law or otherwise) without the prior written consent of the
Purchaser. The Purchaser agrees that it shall not transfer the Series 2004-1
Notes without the Transferor's consent.
(b) With the consent of the Transferor, the Purchaser may assign all or a
portion of its rights and obligations under this Agreement to any financial
or other institution acceptable to the Purchaser and the Transferor. The
parties to each such assignment shall execute and deliver an Assignment and
Acceptance to the Purchaser.
(c) This Agreement shall create and constitute the continuing obligation
of the parties hereto in accordance with its terms and shall remain in full
force and effect until such time as all amounts payable with respect to the
Series 2004-1 Notes shall have been paid in full.
Section 10.04. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.05. No Proceedings. The Purchaser agrees that it shall not at
any time file, or join in the filing of, a petition against the Issuer under
the Federal Bankruptcy Code or join in the
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commencement of any bankruptcy, reorganization, arrangement, insolvency,
liquidation or other similar proceeding against the Issuer.
Section 10.06. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the
same agreement.
Section 10.07. No Recourse. The obligations of the Purchaser under this
Agreement, or any other agreement, instrument, document or certificate
executed and delivered by or issued by the Purchaser or any officer thereof
are solely the corporate obligations of the Purchaser. No recourse shall be
had for payment of any fee or other obligation or claim arising out of or
relating to this Agreement or any other agreement, instrument, document or
Series 2004-1 Note executed and delivered or issued by the Purchaser or any
officer thereof in connection therewith, against any stockholder, employee,
officer, director or incorporator of such Purchaser.
Section 10.08. Limited Recourse. The obligations of the Transferor and
Nordstrom fsb under this Agreement are solely the official obligations of
each of the Transferor and Nordstrom fsb. No recourse shall be had for the
payment of any fee or other obligation or claim arising out of or relating to
this Agreement or any other agreement, instrument, document or certificate
executed and delivered or issued by the Transferor, Nordstrom fsb or any
officer thereof in connection therewith, against any stockholder, employee,
officer or director of the Transferor or Nordstrom fsb.
Section 10.09. Survival. All representations, warranties, covenants and
guaranties contained in this Agreement, including Sections 10.05, 10.07 and
10.08, and in any document, Note or statement delivered pursuant hereto or in
connection herewith shall survive the sale, transfer or repayment of the
Series 2004-1 Notes.
Section 10.10. Tax Characterization. Each party to this Agreement (i)
acknowledges and agrees that it is the intent of the parties to this
Agreement that, for federal, state and local income and franchise tax
purposes only, the Series 2004-1 Notes will be treated as evidence of
indebtedness secured by the Receivables and proceeds thereof and the Issuer
will not be characterized as an association (or publicly traded partnership)
taxable as a corporation, (ii) agrees to treat the Series 2004-1 Notes for
federal, state and local income and franchise tax purposes as indebtedness
and (iii) agrees that the provisions of this Agreement and all other Series
Documents shall be construed to further these intentions of the parties.
Section 10.11. Nonpetition Covenant. The Purchaser, by entering into this
Agreement hereby covenants and agrees that it will not at any time institute
against the Transferor or the Issuer, or join in instituting against the
Transferor or the Issuer, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under the Federal
Bankruptcy Code or any or state bankruptcy or similar law.
Section 10.12. Notice to Rating Agencies. The Transferor shall provide the
Rating Agencies at least ten days prior written notice of any amendment to
this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
NORDSTROM CREDIT CARD
RECEIVABLES LLC,
as Transferor
By: /s/ Marc A. Anacker
-------------------------
Name: Marc A. Anacker
Title:Treasurer
NORDSTROM fsb,
as Servicer
By: /s/ Denny D. Dumler
-------------------------
Name: Denny D. Dumler
Title:President
NORDSTROM CREDIT, INC.
as Purchaser
By: /s/ Kevin T. Knight
-------------------------
Name: Kevin T. Knight
Title:President
<page>
SCHEDULE I
Addresses for Notices
If to:
Transferor: Nordstrom Credit Card Receivables LLC
13531 E. Caley Avenue
Englewood, Colorado 80111
Attention: Legal Department
Facsimile No.: (303) 397-4767
Servicer: Nordstrom fsb
13531 E. Caley Avenue
Englewood, Colorado 80111
Attention: Legal Department
Facsimile No.: (303) 397-4767
Purchaser: Nordstrom Credit, Inc.
13531 E. Caley Avenue
Englewood, Colorado 80111
Attention: Legal Department
Facsimile No.: (303) 397-4767
S-1