Execution Copy Exhibit 4.7
-----------
- -------------------------------------------------------------------------------
CLASS C NOTE PURCHASE AGREEMENT
Dated as of March 6, 2001
among
FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST,
Issuer,
FIRST CONSUMERS NATIONAL BANK,
Seller and Servicer,
THE CLASS C PURCHASERS PARTIES HERETO,
and
DEUTSCHE BANK AG, NEW YORK BRANCH,
Administrative Agent
--------------------
Relating to
First Consumers Credit Card Master Note Trust
Class C Series 2001-A Floating Rate Asset Backed Notes
--------------------
- --------------------------------------------------------------------------------
CLASS C NOTE PURCHASE AGREEMENT, dated as of March 6, 2001, by and
among FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST, an Illinois trust (together
with its successors and assigns, the "Issuer"), FIRST CONSUMERS NATIONAL BANK, a
------
national banking association ("FCNB"), as Seller (as defined in the Indenture
----
referred to below) and as Servicer (as defined in the Indenture referred to
below), the CLASS C PURCHASERS (as hereinafter defined) from time to time
parties hereto, and DEUTSCHE BANK AG, a German banking corporation acting
through its New York Branch ("DBNY"), as administrative agent for the Class C
----
Purchasers (together with its successors in such capacity, the "Administrative
--------------
Agent").
- -----
W I T N E S S E T H:
WHEREAS, the Issuer, the Seller, the Servicer and the Indenture Trustee
(as defined below) are parties to a certain Transfer and Servicing Agreement,
dated as of March 1, 2001 (as the same may from time to time be amended or
otherwise modified, the "Transfer and Servicing Agreement"), pursuant to which,
--------------------------------
among other things, the Seller has assigned, transferred and conveyed its right,
title and interest in, to and under the Collateral Certificate (as defined
therein) to the Issuer, and, upon termination of the First Consumers Master
Trust, has agreed to assign, transfer and convey, its right, title and interest
in, to and under certain Receivables (as defined therein) to the Issuer, and the
Servicer has agreed to service such Receivables;
WHEREAS, the Issuer and The Bank of New York, as trustee (together with
its successors in such capacity, the "Indenture Trustee") are parties to a
-----------------
certain Master Indenture, dated as of March 1, 2001 (as the same may from time
to time be amended or otherwise modified, the "Master Indenture");
----------------
WHEREAS, the Issuer proposes to issue its Class C Series 2001-A
Floating Rate Asset Backed Notes (the "Class C Notes") pursuant to the Master
-------------
Indenture, as supplemented by the Series 2001-A Indenture Supplement, dated as
of March 1, 2001 (as the same may from time to time be amended or, otherwise
modified, the "Supplemental Indenture" and the Master Indenture, as supplemented
----------------------
by the Supplemental Indenture, the "Indenture");
---------
WHEREAS, the Issuer also proposes to issue its Class A Series 2001-A
Floating Rate Asset Backed Notes (the "Class A Notes") and its Class B Series
-------------
2001-A Floating Rate Asset Backed Notes (the "Class B Notes") pursuant to the
-------------
Indenture, to which Class A Notes and Class B Notes the Class C Notes are
subordinate;
WHEREAS, the Issuer proposes to establish a cash collateral account
(the "Spread Account") with the Indenture Trustee pursuant to the terms of the
--------------
Supplemental Indenture for the benefit of the Class C Purchasers;
WHEREAS, the Class C Purchasers are willing to purchase the Class C
Notes in the amount of the Class C Initial Note Principal Balance on the Closing
Date on the terms and conditions provided for herein;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby expressly acknowledged, the parties hereto agree as follows:
ARTICLE 1 DEFINITIONS
1.1 Definitions. All capitalized terms used herein as defined
-----------
terms and not defined herein shall have the meanings given to them in the
Indenture or the Related Documents. Each capitalized term defined herein shall
relate only to the Series 2001-A and to no other Series issued pursuant to the
Indenture.
"Adjusted Eurodollar Rate" shall mean, for any Interest Accrual Period
------------------------
or portion thereof, a rate per annum (rounded upwards, if necessary, to the
nearest 1/16th of 1%) equivalent to the rate determined pursuant to the
following formula:
Adjusted Eurodollar Rate = LIBOR
---------------
1-LIBOR Reserve Percentage
on the first day of such Interest Accrual Period.
"Adjusted Excess Spread" has the meaning specified in the definition of
----------------------
"Excess Spread Percentage" in this Section 1.1.
"Administrative Agent" has the meaning specified in the preamble to
--------------------
this Agreement.
"Affected Party" shall mean, with respect to any CP Conduit, any
--------------
Support Party of such CP Conduit.
"Agreement" shall mean this Class C Note Purchase Agreement, as
---------
amended, supplemented or otherwise modified from time to time.
"Alternative Rate" shall mean, for any Interest Accrual Period, an
----------------
interest rate per annum equal to 0.75% per annum above the Adjusted Eurodollar
Rate for such Interest Accrual Period.
"Applicable Percentage" shall have the meaning specified in the
---------------------
Supplemental Spread Account Letter.
"Assignee" and "Assignment" have the respective meanings specified in
-------- ----------
subsection 8.1(e) of this Agreement.
"Cap Increase Event" shall mean:
------------------
(a) the occurrence of any Series 2001-A Pay Out Event or the
occurrence of an event which would be a Series 2001-A Pay Out Event but
for a waiver of or failure to declare or determine such event by the
noteholders or the Trustee (unless waived by the Required Class C
Owners);
-2-
(b) the failure of the Seller, the Servicer or the Trustee to
make a deposit or withdrawal required hereunder when and as required
and such failure continues for five Business Days (unless waived by the
Required Class C Owners);
(c) A Change of Control shall occur;
(d) a breach of a representation or warranty hereunder which is
not cured within 60 days (unless waived by the Required Class C
Owners);
(e) the failure by the Seller or the Servicer or, if such failure
is reasonably expected to have a material adverse effect on the Class C
Purchasers, by the Trustee, to duly observe or perform any term or
provision of this Agreement (except as covered by clause (a) above)
which is not cured or waived by the Required Class C Owners within 60
days after written notice of such failure is given to the defaulting
party (with a copy to FCNB if FCNB in any capacity is not the
defaulting party) by the Administrative Agent;
(f) the Class A Notes or the Class B Notes are not repaid in full
on the Class A Expected Principal Distribution Date or the Class B
Expected Principal Distribution Date, respectively;
(g) that the Class C Notes are not rated at least Baa2 by Moody's
and BBB by Standard & Poor's or the ratings on the Class C Notes have
been withdrawn by either Moody's or Standard & Poor's;
(h) FCNB is not considered "well capitalized" with respect to
ratios of total capital (and core capital) to risk-weighted-assets
under applicable regulations of the Governmental Authorities regulating
FCNB and such circumstance continues for a period of thirty consecutive
days, provided that if such regulations no longer specify numeric
--------
ratios which qualify a bank as "well capitalized", FCNB shall be deemed
"well capitalized" if the ratio of its risk-based capital to
risk-weighted assets exceeds 10%; or
(i) the occurrence of the Series Termination Date.
"Change of Control" means that:
-----------------
(i) Spiegel shall fail to own, directly or indirectly, free and clear
of all liens, security interests or other encumbrances, at least 51% of the
outstanding shares of the capital stock of FCNB, on a fully diluted basis; or
(ii) the Otto family related investment vehicles shall fail to own at
least 67% of the outstanding shares of the capital stock of Spiegel.
"Class A Notes" has the meaning specified in the recitals to this
-------------
Agreement.
"Class B Notes" has the meaning specified in the recitals to this
-------------
Agreement.
-3-
"Class C Monthly Interest" shall mean, for any Monthly Period, the sum
------------------------
of (a) the interest on the Class C Note Principal Balance accrued for such
Monthly Period computed pursuant to subsections 2.2(a) or 2.2(b), as applicable,
of this Agreement and (b) all amounts (other than principal of the Class C
Notes) due hereunder at such time.
"Class C Note Asset Balance" shall mean, on any date, the product of
--------------------------
(i) the Allocation Percentage (determined, for this purpose only, by using a
numerator equal to the Class C Note Principal Balance in lieu of the Collateral
Amount), and (ii) the sum of the Excess Funding Amount, the amount on deposit in
the Collection Account in respect of Collections of Principal Receivables and
the total amount of Principal Receivables on such date.
"Class C Notes" has the meaning specified in the recitals to this
-------------
Agreement.
"Class C Owners" shall mean the Class C Purchasers that are owners of
--------------
record of the Class C Notes or, with respect to any Class C Note held by the
Administrative Agent hereunder as nominee on behalf of Class C Purchasers, the
Class C Purchasers that are owners of the Class C Noteholders' Interest
represented by such Class C Note as reflected on the books of the Administrative
Agent in accordance with this Agreement and the Related Documents.
"Class C Purchaser" shall mean any Person which is designated as a
-----------------
Class C Purchaser on the signature pages hereto or in the Transfer Supplement
pursuant to which it became a party to this Agreement.
"Closing Date" shall mean March 6, 2001.
------------
"Code" shall mean the Internal Revenue Code of 1986, as amended.
----
"Commercial Paper Notes" shall mean, with respect to a CP Conduit, the
----------------------
short-term promissory notes issued by such CP Conduit which are allocated by
such CP Conduit as its funding for its purchasing or maintaining its Percentage
Interest of the Class C Note Principal Balance hereunder.
"Commercial Paper Rate" shall mean, for each Tranche of the Class C
---------------------
Note Principal Balance, for any day to the extent a CP Conduit funds its
Percentage Interest of such Tranche on such day with outstanding Commercial
Paper Notes, the sum of (a) the rate (or if more than one rate, the weighted
average of the rates) per annum at which such Commercial Paper Notes were sold
by any placement agent or commercial paper dealer selected by or on behalf of
such CP Conduit, as agreed between each such agent or dealer and such CP
Conduit; provided that if the rate (or rates) as agreed between any such agent
--------
or dealer and such CP Conduit is a discount rate (or rates), then such rate
shall be the rate (or if more than one rate, the weighted average of the rates)
resulting from converting such discount rate (or rates) to an interest-bearing
equivalent rate per annum, plus (b) 0.05% in respect of dealer fees and
commissions (to the extent not included in the rate or rates described in clause
(a)).
"Commission" shall mean the Securities and Exchange Commission.
----------
-4-
"Commitment" shall mean, for any Class C Purchaser, the maximum amount
----------
of such Class C Purchaser's commitment to purchase a portion of the Class C
Noteholders' Interest, as set forth on the signature pages hereto, or, in the
case of a Class C Purchaser which became a Class C Purchaser by Assignment, on
Schedule II to such Class C Purchaser's Assignment opposite the heading "Class C
Note Principal Balance Purchased", respectively, as the same may be reduced
pursuant to any Assignment.
"Consented Transferee Letter" shall mean the letter, dated as of the
---------------------------
date of this Agreement and referring to this Agreement (or any replacement
therefor from time to time in effect), from the Seller to, and accepted by, the
Administrative Agent, as such letter may be amended or otherwise modified from
time to time by the Administrative Agent with the consent of the Seller.
"Covered Portion" shall mean a portion of the Class C Note Principal
---------------
Balance equal to the Class C Note Asset Balance.
"CP Conduit" shall mean any Class C Purchaser which is a commercial
----------
paper conduit or other special purpose funding vehicle sponsored by the
Administrative Agent, or by any other bank or financial institution to which the
Administrative Agent and FCNB shall have consented (which consents shall not be
unreasonably withheld).
"DBNY" has the meaning specified in the preamble to this Agreement.
----
"Excess Spread Percentage" shall mean, with respect to each Monthly
------------------------
Period, an amount equal to the percentage equivalent of a fraction, the
numerator of which is the product of (x) an amount (for each Monthly Period, the
- ---------
"Adjusted Excess Spread") equal to (i) Investor Finance Charge Collections with
----------------------
respect to such Monthly Period, plus (ii) the amount of the Reserve Draw Amount
----
plus any amounts of interest and earnings described in Section 4.10 of the
Supplemental Indenture deposited into the Collection Account on the Distribution
Date relating to such Monthly Period, plus (iii) the amount of the Net Swap
----
Receipts for the Distribution Date relating to such Monthly Period minus (iv)
-----
the portion of the Investor Finance Charge Collections consisting of (A)
Discount Option Receivable Collections or (B) Shared Finance Charge Collections,
minus (v) the distributions on the Distribution Date relating to such Monthly
- -----
Period provided for in clauses (i) through (vi) of Section 4.4(a) of the
Supplemental Indenture; and (y) twelve, and the denominator of which is the
-----------
Collateral Amount on the first day of such Monthly Period.
"Excluded Taxes" has the meaning specified in subsection 2.4(a) of this
--------------
Agreement.
"FCNB" has the meaning specified in the preamble to this Agreement.
----
"Governmental Authority" shall mean any nation or government, any state
----------------------
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Indemnitee" has the meaning specified in subsection 2.5(a) of this
----------
Agreement.
-5-
"Indenture Trustee" has the meaning specified in the recitals to this
-----------------
Agreement.
"Interest Accrual Period" shall mean, (i) with respect to each Tranche
-----------------------
of the Class C Note Principal Balance which bears interest calculated by
reference to the Commercial Paper Rate, each period from the date of issuance to
the maturity date of the related tranche of commercial paper notes used in
determining the Commercial Paper Rate for such Tranche (or, if earlier, the date
on which such Tranche ceases to bear interest calculated by reference to the
Commercial Paper Rate), and (ii) with respect to any other Tranches of the Class
C Note Principal Balance, each Monthly Period and the period commencing on the
day following the end of the final Monthly Period for Series 2001-A and ending
on the final Distribution Date for Series 2001-A.
"Investing Office" shall mean initially, the office of any Class C
----------------
Purchaser (if any) designated as such, on the signature pages hereto or in the
Transfer Supplement by which it became a party to this Agreement, and
thereafter, such other office of such Class C Purchaser or such Assignee as may
be designated in writing to the Administrative Agent, the Issuer, the Servicer
and the Indenture Trustee by such Class C Purchaser or Assignee.
"Investment Earnings" shall mean, with respect to any Distribution
-------------------
Date, all interest and earnings on Permitted Investments included in the Spread
Account (net of losses and investment expenses) during the period commencing on
and including the Distribution Date immediately preceding such Distribution Date
and ending on but excluding such Distribution Date.
"Investment Letter" has the meaning specified in subsection 8.1(a) of
-----------------
this Agreement.
"LIBOR" has the meaning specified in the Supplemental Indenture.
-----
"LIBOR Reserve Percentage" shall mean, with respect to any Interest
------------------------
Accrual Period or portion thereof, a percentage (expressed as a decimal) equal
to the weighted average of the percentages in effect during such Interest
Accrual Period, as prescribed by the Board of Governors of the Federal Reserve
System (or any successor thereto) for determining the maximum reserve
requirements applicable to "Eurocurrency liabilities" pursuant to Regulation D
or any other applicable regulation of the Federal Reserve Board (or any
successor thereto) which prescribes reserve requirements applicable to
"Eurocurrency liabilities" as currently defined in Regulation D.
"Loan Spread Rate" shall mean, the applicable rate or rates identified
----------------
as the "Loan Spread Rate" in the Supplemental Fee Letter.
"Maximum Release Amount" shall have the meaning specified in the
----------------------
Supplemental Spread Account Letter.
"Note Rate Determination Date" shall mean, for any Monthly Period, the
----------------------------
third Business Day prior to the Distribution Date which follows the end of such
Monthly Period.
"Participant" has the meaning specified in subsection 8.1(d) of this
-----------
Agreement.
-6-
"Participation" has the meaning specified in subsection 8.1(d) of the
-------------
Agreement.
"Percentage Interest" shall mean, for a Class C Purchaser on any day,
-------------------
the percentage equivalent of (a) the sum of (i) the portion of the Class C
Initial Note Principal Balance (if any) purchased by such Class C Purchaser,
plus (ii) any portion of the Class C Note Principal Balance acquired by such
- ----
Class C Purchaser as an Assignee from another Class C Purchaser pursuant to a
Transfer Supplement executed and delivered pursuant to Section 8.1 of this
Agreement, minus (iii) the aggregate amount of principal payments made to such
-----
Class C Purchaser prior to such day, minus (iv) any portion of the Class C Note
-----
Principal Balance assigned by such Class C Purchaser to an Assignee pursuant to
a Transfer Supplement executed and delivered pursuant to Section 8.1 of this
Agreement, divided by (b) the aggregate Class C Note Principal Balance on such
------- --
day.
"Permitted Transferee" shall mean each initial Class C Purchaser,
--------------------
Administrative Agent (in its individual capacity), each Person listed in the
Consented Transferee Letter as in effect on the date on which such Person became
or agreed to become a Class C Purchaser, a Participant or a Support Party, and
each other Person who has been consented to as a potential Transferee by the
Seller.
"Person" shall mean an individual, partnership, corporation, business
------
trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
"Prime Rate" shall mean, for any day, a fluctuating rate of interest
----------
per annum equal to the higher of: (i) the rate of interest most recently
announced by Deutsche Bank AG as its prime lending rate for unsecured commercial
loans within the United States, and (ii) 0.50% above the rate per annum at which
Deutsche Bank AG, New York Branch, as a branch of a foreign bank, in its
reasonable discretion, can acquire federal funds in the interbank overnight
federal funds market, through brokers of recognized standing or otherwise, as
most recently determined by Deutsche Bank AG, New York Branch. The Prime Rate is
not necessarily intended to be the lowest rate of interest determined by
Deutsche Bank AG or Deutsche Bank AG, New York Branch, in connection with
extensions of credit.
"Prospectus" shall mean the prospectus as first filed with the
----------
Commission under Rule 424(b) of the Act relating to the Series 2001-A Notes.
"Registration Statement" shall mean the registration statement on Form
----------------------
S-3 of FCNB and First Consumers Master Trust (Registration Number 333-48860 and
333-48860-01) as amended from time to time and including incorporated documents
and exhibits, filed with the Commission pursuant to the Act, relating to the
Series 2001-A Notes.
"Regulatory Change" shall mean, as to each Class C Purchaser, any
-----------------
change occurring after the date of the execution and delivery of this Agreement
or, if later, the date of the execution and delivery of the Transfer Supplement
by which it became party to this Agreement; in the case of a Participant, any
change occurring after the date on which its Participation became
-7-
effective, or in the case of an Affected Party, any change occurring after the
date it became such an Affected Party, in any (or the adoption after such date
of any new):
(1) United States Federal or state law or foreign law
applicable to such Class C Purchaser, Affected Party or Participant; or
(2) regulation, interpretation, directive, guideline or
request (whether or not having the force of law) applicable to such
Class C Purchaser, Affected Party or Participant of any court or other
judicial authority or any Governmental Authority charged with the
interpretation or administration of any law referred to in clause (i)
or of any fiscal, monetary or other Governmental Authority or central
bank having jurisdiction over such Class C Purchaser, Affected Party or
Participant.
"Related Documents" shall mean, collectively, this Agreement (including
-----------------
the Supplemental Fee Letter, the Supplemental Spread Account Letter and all
effective Transfer Supplements), the Master Indenture, the Supplemental
Indenture, the Transfer and Servicing Agreement, the Trust Agreement, the Series
2001-A Notes and the Transaction Documents.
"Required Class C Owners" shall mean, at any time, Class C Owners
-----------------------
having at least 51% of the aggregate Percentage Interests of all Class C Owners.
"Requirement of Law" shall mean, as to any Person, 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).
"Risk Portion" shall mean a portion of the Class C Note Principal
------------
Balance equal to the excess, if any, of Class C Note Principal Balance over the
Class C Note Asset Balance.
"Risk Rate" shall mean, for any day, a rate per annum equal to the
---------
Prime Rate in effect for such day.
"Spread Account Amount" shall mean, as of any date, an amount equal to
---------------------
the amount on deposit in the Spread Account (exclusive of Investment Earnings)
on such date, after giving effect to all deposits, transfers and withdrawals
from the Spread Account on such date.
"Spread Account Cap" with respect to any date of determination, shall
------------------
mean the result obtained by multiplying the Initial Collateral Amount by the
Applicable Percentage in effect on such date; provided that the Spread Account
-------------
Cap shall be increased to the Class C Note Principal Balance upon the occurrence
of a Cap Increase Event; and provided, further that at no time shall the Spread
----------------- ----
Account Cap exceed an amount equal to the Class C Note Principal Balance.
"Supplemental Indenture" has the meaning specified in the recitals to
----------------------
this Agreement.
-8-
"Supplemental Fee Letter" shall mean, the letter agreement, designated
-----------------------
therein as a Supplemental Fee Letter, among the Issuer, FCNB and the
Administrative Agent, as such letter agreement may be amended or otherwise
modified from time to time.
"Supplemental Spread Account Letter" shall mean that certain letter
----------------------------------
agreement designated as such, dated as of the date hereof, among the Issuer,
FCNB and the Administrative Agent.
"Support Advances" shall mean, with respect to a Liquidity Purchaser
----------------
and its related CP Conduit, any participation held by such Liquidity Purchaser
in such CP Conduit's Percentage Interest in the Class C Note Principal Balance
which was purchased from such CP Conduit pursuant to a Support Facility and any
loans or other advances made by such Liquidity Purchaser to such CP Conduit
pursuant to a Support Facility to fund such CP Conduit's making or maintaining
its purchases hereunder (but excluding any such loans or advances made to fund
such CP Conduit's obligations to pay interest, fees or other similar amounts
relating to the funding of its making or maintaining its purchases hereunder).
"Support Facility" shall mean any liquidity or credit support agreement
----------------
with a CP Conduit which relates to this Agreement (including any agreement to
purchase an assignment of or participation in Class C Notes).
"Support Party" shall mean any other bank, insurance company or other
-------------
financial institution extending or having a commitment to extend funds to or for
the account of a CP Conduit (including by agreement to purchase an assignment of
or participation in Class C Notes) under a Support Facility.
"Taxes" has the meaning specified in subsection 2.4(a) of this
-----
Agreement.
"Termination Date" shall mean the Series Termination Date, provided
---------------- --------
that if the Rapid Amortization Period has been continued as set forth in the
definition thereof in the Supplemental Indenture because amounts are owed to the
Class C Purchasers, then the Termination Date shall be the last day of the Rapid
Amortization Period, as so continued.
"Three Month Average Excess Spread Percentage" means, with respect to
--------------------------------------------
any Monthly Period, the average of the Excess Spread Percentages for such
Monthly Period and the two preceding Monthly Periods, provided that the Three
--------
Month Average Excess Spread Percentage for the first Monthly Period shall equal
the Excess Spread Percentage for such Monthly Period and the Three Month Average
Excess Spread Percentage for the second Monthly Period shall equal the Two Month
Average Excess Spread Percentage for such Monthly Period.
"Tranche" shall mean (i) in the case of the portion of the Class C Note
-------
Principal Balance which bears interest by reference to the Commercial Paper
Rate, each portion thereof which the applicable CP Conduit determines is funded
or maintained with its commercial paper notes having the same maturity date and
yield or by a single commercial paper note having a maturity date or yield which
differs from any other commercial paper notes allocated by such CP Conduit
-9-
to its funding or maintaining of such portion of the Class C Note Principal
Balance, and (ii) in the case of the remaining portion of the Class C Note
Principal Balance, such entire remaining portion.
"Transfer" has the meaning specified in subsection 8.1(c) of this
--------
Agreement.
"Transfer and Servicing Agreement" has the meaning specified in the
--------------------------------
recitals to this Agreement.
"Transfer Supplement" has the meaning specified in subsection 8.1(e) of
-------------------
this Agreement.
"Transferee" has the meaning specified in subsection 8.1(c) of this
----------
Agreement.
"Trust" has the meaning specified in the recitals to this Agreement.
-----
"Two Month Average Excess Spread Percentage" means, with respect to any
------------------------------------------
Monthly Period, the average of the Excess Spread Percentages for such Monthly
Period and the preceding Monthly Period, provided that the Two Month Average
--------
Excess Spread Percentage for the first Monthly Period shall equal the Excess
Spread Percentage for such Monthly Period.
"written" or "in writing" (and other variations thereof) shall mean any
------- -------
form of written communication or a communication by means of telex, telecopier
device, telegraph or cable.
1.2 Other Definitional Provisions.
-----------------------------
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto.
(b) The words "hereof", "herein", and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and Section,
subsection and Exhibit references are to this Agreement, unless otherwise
specified. The words "including" and "include" shall be deemed to be followed by
the words "without limitation".
ARTICLE 2 AMOUNT AND TERMS OF COMMITMENTS
2.1 Purchase.
--------
(a) On and subject to the terms and conditions of this Agreement,
the Class C Purchaser agrees to purchase the Class C Initial Note Principal
Balance for a purchase price equal to the Class C Initial Note Principal
Balance.
(b) The purchase of the Class C Initial Note Principal Balance
hereunder shall be made on the Closing Date.
-10-
(c) The Class C Purchaser's purchase price payable pursuant to
subsection 2.1(a) of this Agreement shall be made available to the
Administrative Agent, subject to the fulfillment of the applicable conditions
set forth in Article 3 hereof, at or prior to 10:00 a.m., New York City time, on
the Closing Date, by deposit of immediately available funds to an account of the
Administrative Agent specified in subsection 9.2(b) of this Agreement. Subject
to (i) the Administrative Agent's receipt of such funds and (ii) the fulfillment
of the applicable conditions set forth in Article 3 hereof, as determined by the
Administrative Agent, the Administrative Agent will not later than 12:00 p.m.,
New York City time, on the Closing Date make such funds available, in the same
type of funds received, by wire transfer thereof to the account of Issuer or as
the Issuer may otherwise direct in the United States specified in writing by the
Issuer to the Administrative Agent not later than the Business Day prior to the
Closing Date.
2.2 Interest, Fees, Expenses, Payments, Etc.
---------------------------------------
(a) Except as otherwise provided in subsection 2.2(b) of this
Agreement, each Tranche of each CP Conduit's Percentage Interest of the Covered
Portion of the Class C Note Principal Balance shall bear interest for each
Interest Accrual Period at a rate per annum equal to the sum of such CP
Conduit's Commercial Paper Rate applicable to such Tranche plus the Loan Spread
Rate. Each CP Conduit's commercial paper tranches will be selected by such CP
Conduit or its administrator, after consultation with the Seller, to the extent
reasonably practicable. Each other Class C Purchaser's (other than a CP
Conduit's) Percentage Interest of the Covered Portion of the Class C Note
Principal Balance shall bear interest for each Interest Accrual Period at a rate
per annum equal to the sum of the Alternative Rate plus the Loan Spread Rate.
Each Class C Purchaser's Percentage Interest of the Risk Portion of the Class C
Note Principal Balance shall bear interest for each Interest Accrual Period at a
rate per annum equal to the sum of the Risk Rate from time to time in effect
plus the Loan Spread Rate.
(b) If and to the extent that, and only for so long as, a CP
Conduit at any time determines in good faith that it is unable to raise or is
precluded or prohibited from raising, or that it is not advisable to raise,
funds through the issuance of Commercial Paper Notes in the commercial paper
market of the United States to finance its purchase or maintenance of its
Percentage Interest of the Covered Portion of the Class C Note Principal Balance
or any portion thereof (which determination may be based on any allocation
method employed in good faith by such CP Conduit), including by reason of market
conditions or by reason of insufficient availability under any of its Support
Facilities or the downgrading of any of its Support Parties, upon notice from
such CP Conduit to the Administrative Agent and the Issuer, such portion of such
CP Conduit's Percentage Interest of the Class C Note Principal Balance shall
bear interest at a rate per annum equal to the sum of the Alternative Rate plus
the Loan Spread Rate, rather than as otherwise determined pursuant to subsection
2.2(a) of this Agreement.
(c) The principal of the Class C Notes shall be paid as provided
in the Indenture. Accrued and unpaid interest on each Tranche of the Class C
Note Principal Balance shall be due and payable on the last day of each Interest
Accrual Period applicable to such Tranche and on any date on which the principal
of such Tranche is paid or required to be paid
-11-
hereunder or under the Indenture (in respect of the portion of principal paid or
required to be paid). Class C Monthly Interest for each Monthly Period
(including the last Monthly Period), except to the extent otherwise provided in
the definition of Class C Monthly Period contained in Section 1.1, shall be due
and payable on the Distribution Date for such Monthly Period. In the case of
Class C Notes held by the Administrative Agent, the Administrative Agent shall
allocate to the Class C Owners each payment in respect of the Class C Notes
received by the Administrative Agent in its capacity as Class C Noteholder as
provided herein. Payments in reduction of the portion of the Class C Note
Principal Balance evidenced by a Class C Note shall be allocated and applied to
Class C Owners of such Class C Note pro rata based on their respective
Percentage Interests of the Class C Note Principal Balance, or in any such case
in such other proportions as each affected Class C Purchaser may agree upon in
writing from time to time with the Administrative Agent and the Issuer. Payments
of interest in respect of the portion of the Class C Note Principal Balance
evidenced by a Class C Note shall be allocated and applied to Class C Owners of
such Class C Note pro rata based upon the respective amounts of interest due and
payable to them, determined as provided above in this Section 2.2.
(d) The Seller on behalf of the Issuer agrees to pay to the
Administrative Agent the amounts set forth in Section 1 of the Supplemental Fee
Letter at the times specified therein.
(e) The Seller on behalf of the Issuer agrees to pay on demand
(i) to the Administrative Agent and the initial Class C Purchaser all reasonable
costs and expenses in connection with the preparation, execution, and delivery
of this Agreement and the other documents to be delivered hereunder or in
connection herewith, including the reasonable fees and out-of-pocket expenses of
counsel with respect thereto and the amounts due to Moody's and S&P in
connection with their review of the initial Class C Purchaser's acquisition of
the Class C Notes, provided that such fees of counsel shall not exceed the
--------
amounts set forth in the Supplemental Fee Letter, (ii) to the Administrative
Agent and each Class C Purchaser, all reasonable costs and expenses in
connection with the any requested amendments of or waivers or consents under
this Agreement or the Related Documents, including in each case the reasonable
fees and out-of-pocket expenses of counsel with respect thereto, and (iii) if an
Event of Default or Servicer Default shall have occurred, to the Administrative
Agent and each Class C Purchaser, on demand, all reasonable costs and expenses
(including reasonable fees and expenses of counsel), if any, in connection with
the enforcement of this Agreement or any of the Related Documents, and the other
documents delivered thereunder or in connection therewith.
(f) The Seller on behalf of the Issuer agrees to pay on demand
any and all stamp, transfer and other similar taxes (other than Taxes covered by
Section 2.4 hereof) and governmental fees payable in connection with the
execution, delivery, filing and recording of any of the Related Documents and
each related Support Facility, and agrees to save each Class C Purchaser and the
Administrative Agent harmless from and against any liabilities with respect to
or resulting from any delay in paying or any omission to pay such taxes and
fees.
(g) Any interest, fees or other amounts due and payable hereunder
(without regard to any limitations set forth herein on the sources from which
such amount may be paid)
-12-
which are not paid on the due date thereof (including interest payable pursuant
to this clause (g)) shall accrue interest (after as well as before judgment) at
a rate per annum equal to the sum of the Risk Rate from time to time in effect
plus the Loan Spread Rate plus 2.0% from and including the due date thereof to
but excluding the date such amount is actually paid.
(h) Unless otherwise specified in the Supplemental Fee Letter,
interest calculated by reference to the Commercial Paper Rate or the Adjusted
Eurodollar Rate shall be calculated on the basis of a 360-day year for the
actual days elapsed. Interest calculated by reference to the Prime Rate shall be
calculated on the basis of a 365- or 366-day year, as applicable, for the actual
days elapsed. Periodic fees or other periodic amounts payable hereunder shall be
calculated, unless otherwise specified in the Supplemental Fee Letter, on the
basis of a 360-day year and for the actual days elapsed.
(i) All payments to be made hereunder or under the Indenture,
whether on account of principal, interest, fees or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 2:30 p.m., New York
City time, on the due date thereof to the Administrative Agent at its account
specified in subsection 9.2(b) hereof, in United States dollars and in
immediately available funds. Payments received by the Administrative Agent after
2:30 p.m., New York City time, shall be deemed to have been made on the next
Business Day. Notwithstanding anything herein to the contrary, if any payment
due hereunder becomes due and payable on a day other than a Business Day, the
payment date thereof shall be extended to the next succeeding Business Day and
interest shall accrue thereon at the applicable rate during such extension. To
the extent that (i) the Issuer, the Indenture Trustee, the Seller or the
Servicer makes a payment to the Administrative Agent or a Class C Purchaser or
(ii) the Administrative Agent or a Class C Purchaser receives or is deemed to
have received any payment or proceeds for application to an obligation, which
payment or proceeds or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be repaid to a
trustee, receiver or any other party under any bankruptcy or insolvency law,
state or Federal law, common law, or for equitable cause, then, to the extent
such payment or proceeds are set aside, the obligation or part thereof intended
to be satisfied shall be revived and continue in full force and effect, as if
such payment or proceeds had not been received or deemed received by the
Administrative Agent or Class C Purchaser, as the case may be.
(j) At or before 4:00 p.m., New York City time, on each Note Rate
Determination Date and on the third Business Day preceding the end of each
Interest Accrual Period, each CP Conduit shall notify the Administrative Agent
of (i) its Commercial Paper Rate, if applicable, for each Tranche in effect for
the related Monthly Period or Interest Accrual Period, as applicable, and (ii)
if applicable, the date on which the Alternative Rate became applicable to its
Percentage Interest of the Class C Note Principal Balance or a portion thereof
pursuant to subsection 2.2(b) of this Agreement. Such notification may be based
on such CP Conduit's good faith estimate of the Commercial Paper Rate if the
actual rate is not then known to such CP Conduit, and in such case, such CP
Conduit shall notify the Administrative Agent at or before 4:00 p.m., New York
City time, on the following Note Rate Determination Date of the amount of any
variation between interest payable to such CP Conduit for the preceding Monthly
Period or Interest Accrual Period, as applicable, based on such estimate and
interest which
-13-
should have been payable to such CP Conduit for such Monthly Period or Interest
Accrual Period, as applicable, based on its final determination of the
applicable Commercial Paper Rate. The amount of any shortfall in interest based
on such variation shall be included in the portion of Class C Monthly Interest
payable to such CP Conduit on the following Distribution Date, and the amount of
any overpayment of interest to such CP Conduit based on such variation shall be
credited, dollar for dollar, against the portion of Class C Monthly Interest
otherwise payable to such CP Conduit for the following Monthly Period. Each
determination by a CP Conduit of its applicable Commercial Paper Rate pursuant
to this Agreement shall be conclusive and binding on the Class C Purchasers, the
Administrative Agent, the Issuer, the Seller, the Servicer and the Indenture
Trustee in the absence of manifest error.
(k) On each Note Rate Determination Date, (i) the Administrative
Agent shall notify the Servicer, with respect to each CP Conduit, of the
applicable Commercial Paper Rates for the related Monthly Period, and, if
applicable, the dates on which the Alternative Rate was applicable to the
Percentage Interest of the Class C Note Principal Balance owed to any Class C
Purchaser, and (ii) the Administrative Agent shall notify the Servicer of the
Alternative Rate and the Risk Rate, if applicable, for the related Monthly
Period. For such purposes, the Administrative Agent may rely conclusively on
notices from CP Conduits as to the interest rate or rates from time to time
applicable to their respective Percentage Interest of the Class C Note Principal
Balance. Such notification from the Administrative Agent may be based on such CP
Conduit's good faith estimate of the Commercial Paper Rate as provided to the
Administrative Agent pursuant to subsection 2.2(j) hereof, if the actual rate
and amount is not then known to the Administrative Agent. In any such case, the
Administrative Agent shall notify the Servicer and the Indenture Trustee on or
before the next succeeding Note Rate Determination Date of the amount of any
variation between the estimated amount of interest payable on Class C Notes
accrued at the Commercial Paper Rate and the actual amount thereof for the
preceding Monthly Period. The amount of any shortfall in interest based on such
variation shall be a positive "Estimated Interest Adjustment" for such Monthly
-----------------------------
Period, and the amount of any overpayment of interest based on such variation
shall be a negative "Estimated Interest Adjustment" for such Monthly Period. Any
-----------------------------
positive Estimated Interest Adjustment for a Monthly Period shall be deemed not
due on the Distribution Date for such Monthly Period, but shall be due on the
next succeeding Distribution Date. An Estimated Interest Adjustment shall not
bear interest, unless not paid when due as provided in the preceding sentence.
Each determination of the Commercial Paper Rate, the Alternative Rate and the
Risk Rate by the Administrative Agent pursuant to any provision of this
Agreement shall be conclusive and binding on the Class C Purchasers, the Issuer,
the Servicer and the Indenture Trustee in the absence of manifest error.
2.3 Requirements of Law.
-------------------
(a) In the event that any Class C Purchaser shall have reasonably
determined that any Regulatory Change shall impose, modify or hold applicable
any reserve, special deposit, compulsory loan or similar requirement against
assets held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other acquisition of
funds by, such Class C Purchaser and the result of any of the foregoing is to
increase the cost to such Class C Purchaser, by an amount which such Class C
Purchaser deems to be material, of
-14-
maintaining its Commitment or its interest in the Class C Notes or to reduce any
amount receivable in respect thereof, then, in any such case, after submission
----
by such Class C Purchaser to the Administrative Agent of a written request
therefor and the submission by the Administrative Agent to the Issuer and the
Servicer of such written request therefor, the Issuer shall pay to the
Administrative Agent for the account of such Class C Purchaser any additional
amounts necessary to compensate such Class C Purchaser for such increased cost
or reduced amount receivable, to the extent not already reflected in the
applicable interest rate, together with interest on any such unpaid amount from
the Distribution Date following receipt by the Issuer of such request for
compensation under this subsection 2.3(a) of this Agreement, if such request is
received by the Issuer at least five Business Days prior to the Determination
Date related to such Distribution Date, and otherwise from the following
Distribution Date, until payment in full thereof (after as well as before
judgment) at the Prime Rate in effect from time to time.
(b) In the event that any Class C Purchaser shall have reasonably
determined that any Regulatory Change regarding capital adequacy has the effect
of reducing the rate of return on such Class C Purchaser's capital or on the
capital of any Person controlling such Class C Purchaser as a consequence of its
obligations hereunder or its maintenance of its Commitment or its interest in
the Class C Notes to a level below that which such Class C Purchaser or such
Person could have achieved but for such Regulatory Change (taking into
consideration such Class C Purchaser's or such Person's policies with respect to
capital adequacy) by an amount deemed by such Class C Purchaser or such Person
to be material, then, from time to time, after submission by such Class C
----
Purchaser to the Administrative Agent of a written request therefor and
submission by the Administrative Agent to the Issuer and the Servicer of such
written request therefor, the Issuer shall pay to the Administrative Agent for
the account of such Class C Purchaser such additional amount or amounts as will
compensate such Class C Purchaser or such Person, as applicable, for such
reduction, together with interest on any such unpaid amount from the
Distribution Date following receipt by the Issuer of such request for
compensation under this subsection 2.3(b), if such request is received by the
Issuer at least five Business Days prior to the Determination Date related to
such Distribution Date, and otherwise from the following Distribution Date,
until payment in full thereof (after as well as before judgment) at the Prime
Rate in effect from time to time. Nothing in this subsection 2.3(b) shall be
deemed to require the Issuer to pay any amount to a Class C Purchaser to the
extent such Class C Purchaser has been compensated therefor under another
provision of this Agreement or to the extent such amount is already reflected in
the applicable interest rate.
(c) Each Class C Purchaser agrees that it shall use its
reasonable efforts to mitigate, reduce or eliminate any claim for compensation
pursuant to subsections 2.3(a) and 2.3(b) of this Agreement, including but not
limited to designating a different Investing Office for its Class C Notes (or
any interest therein) if such designation will avoid the need for, or reduce the
amount of, any increased amounts referred to in subsection 2.3(a) or 2.3(b)
hereof and will not, in the reasonable opinion of such Class C Purchaser, be
unlawful or otherwise disadvantageous to such Class C Purchaser or inconsistent
with its policies or result in any unreimbursed cost or expense to such Class C
Purchaser or in an increase in the aggregate amount payable under subsections
2.3(a) and 2.3(b) hereof.
-15-
(d) Each Class C Purchaser claiming increased amounts described
in subsection 2.3(a) or 2.3(b) of this Agreement will furnish to the
Administrative Agent (together with its request for compensation) a certificate
prepared in good faith setting forth the basis and the calculation of the amount
(in reasonable detail) of each request by such Class C Purchaser for any such
increased amounts referred to in subsection 2.3(a) or 2.3(b) hereof. Any such
certificate shall be conclusive absent manifest error, and the Administrative
Agent shall deliver a copy thereof to the Issuer and the Servicer. Failure on
the part of any Class C Purchaser to demand compensation for any amount pursuant
to subsection 2.3(a) or 2.3(b) hereof with respect to any period shall not
constitute a waiver of such Class C Purchaser's right to demand compensation
with respect to such period.
(e) If (i) the Issuer becomes obligated to pay additional amounts
to any Class C Purchaser pursuant to Section 2.3(a) or, (ii) any Class C
Purchaser gives notice of the occurrence of any circumstances described in
Section 2.3(b) that continues for more than 90 days, or (iii) any Class C
Purchaser refuses to consent to any amendment, waiver or other action requested
by Issuer, then, in each case Issuer may designate a bank which is acceptable to
the Administrative Agent in its reasonable discretion (such other bank, a
"Replacement Bank") to purchase the related Class C Note, without recourse to or
----------------
warranty by, or expense to, the affected Class C Purchaser for a purchase price
equal to the outstanding principal amount of the Class C Notes held by the
related Class C Note Purchaser plus any accrued but unpaid interest on such
Class C Notes and all accrued but unpaid fees owed to the affected Class C
Purchaser and any other amounts payable to the affected Class C Purchaser
hereunder, and, upon such purchase, such Class C Purchaser shall no longer be
party hereto or have any rights hereunder (other than indemnities and other
similar rights applicable to such Class C Purchaser prior to the date of such
assignment and assumption) and shall be relieved from all obligations to the
Issuer hereunder, and the Replacement Bank shall succeed to the rights and
obligations of such Class C Purchaser hereunder.
2.4 Taxes.
-----
(a) All payments made to the Class C Purchasers or the
Administrative Agent under this Agreement and the Indenture (including all
amounts payable with respect to the Class C Notes) shall, to the extent allowed
by law, be made free and clear of, and without deduction or withholding for or
on account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority
(collectively, "Taxes"), excluding (i) income taxes (including branch profit
-----
taxes, minimum taxes and taxes computed under alternative methods, at least one
of which is based on or measured by net income), franchise taxes (imposed in
lieu of income taxes), or any other taxes based on or measured by the net income
of such Class C Purchaser, Participant or the Administrative Agent (as the case
may be) or the gross receipts or income of such Class C Purchaser, Participant
or the Administrative Agent (as the case may be); (ii) any Taxes that would not
have been imposed but for the failure of such Class C Purchaser, Participant or
the Administrative Agent, as applicable, to provide and keep current (to the
extent legally able) any certification or other documentation required to
qualify for an exemption from, or reduced rate of, any such Taxes or required by
this Agreement
-16-
to be furnished by such Class C Purchaser, Participant or the
Administrative Agent, as applicable; and (iii) any Taxes imposed as a result of
a change by any Class C Purchaser or Participant of its Investing Office (other
than changes mandated by this Agreement, including subsection 2.3(c) hereof, or
required by law) (all such excluded taxes being hereinafter called "Excluded
--------
Taxes"). If, as a result of any change in law, treaty or regulation or in the
- -----
interpretation or administration thereof by any governmental or regulatory
agency or body charged with the administration or interpretation thereof, or the
adoption of any law, treaty or regulation, any Taxes, other than Excluded Taxes,
are required to be withheld from any amounts payable to a Class C Purchaser or
the Administrative Agent hereunder or under the Indenture, then after submission
----
by any Class C Purchaser to the Administrative Agent (in the case of an amount
payable to a Class C Purchaser) and by the Administrative Agent to the Issuer
and the Servicer of a written request therefor, the amounts so payable to such
Class C Purchaser or the Administrative Agent, as applicable, shall be increased
by the Issuer, and the Issuer shall pay to the Administrative Agent for the
account of such Class C Purchaser or for its own account or to the
Administrative Agent, as applicable, the amount of such increase to the extent
necessary to yield to such Class C Purchaser or Agent or the Administrative
Agent, as applicable (after payment of all such Taxes) interest or any such
other amounts payable hereunder or thereunder at the rates or in the amounts
specified in this Agreement and the Indenture; provided, however, that the
-------- -------
amounts so payable to such Class C Purchaser or the Administrative Agent shall
not be increased pursuant to this subsection 2.4(a) if such requirement to
withhold results from the failure of such Person to comply with subsection
2.4(c) hereof. Whenever any Taxes are payable on or with respect to amounts
distributed to a Class C Purchaser or the Administrative Agent, as promptly as
possible thereafter the Servicer shall send to such Class C Purchaser or the
Administrative Agent a certified copy of an original official receipt showing
payment thereof. If the Issuer fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to such Class C Purchaser or the
Administrative Agent the required receipts or other required documentary
evidence, the Issuer shall pay to the Administrative Agent on behalf of such
Class C Purchaser or the Administrative Agent for its own account, as
applicable, any incremental taxes, interest or penalties that may become payable
by such Class C Purchaser or the Administrative Agent, as applicable, as a
result of any such failure.
(b) A Class C Purchaser claiming increased amounts under
subsection 2.4(a) hereof for Taxes paid or payable by such Class C Purchaser
will furnish to the Administrative Agent a certificate prepared in good faith
setting forth the basis and amount of each request by such Class C Purchaser for
such Taxes, and the Administrative Agent shall deliver a copy thereof to the
Issuer and the Servicer. The Administrative Agent claiming increased amounts
under subsection 2.4(a) hereof for its own account for Taxes paid or payable by
the Administrative Agent, will furnish to the Issuer and the Servicer a
certificate prepared in good faith setting forth the basis and amount of each
request by the Administrative Agent for such Taxes. Any such certificate of a
Class C Purchaser or the Administrative Agent shall be conclusive absent
manifest error. Failure on the part of any Class C Purchaser or the
Administrative Agent to demand additional amounts pursuant to subsection 2.4(a)
of this Agreement with respect to any period shall not constitute a waiver of
the right of such Class C Purchaser or the Administrative Agent, as the case may
be, to demand compensation with respect to such period. All such amounts shall
be due and payable to the Administrative Agent on behalf of such Class C
-17-
Purchaser or the Administrative Agent for its own account, as the case may be,
on the Distribution Date following receipt by the Issuer of such certificate, if
such certificate is received by the Issuer at least five Business Days prior to
the Determination Date related to such Distribution Date and otherwise shall be
due and payable on the following Distribution Date (or, if earlier, on the
Series Termination Date).
(c) Each Class C Purchaser and each Participant holding an
interest in Class C Notes agrees that prior to the date on which the first
interest or fee payment hereunder is due thereto, it will deliver to the Issuer,
the Seller, the Servicer, the Indenture Trustee and the Administrative Agent (i)
if such Class C Purchaser or Participant is not incorporated under the laws of
the United States or any State thereof, two duly completed copies of the U.S.
Internal Revenue Service Form W-8ECI or Form W-8BEN claiming treaty benefits, or
in either case successor applicable forms required to evidence that the Class C
Purchaser or Participant is entitled to receive payments under this Agreement
and with respect to the Class C Notes without deduction or withholding of any
United States federal income taxes, (ii) a duly completed U.S. Internal Revenue
Service Form W-9 or successor applicable or required forms, and (iii) such other
forms and information as may be required to confirm the availability of any
applicable exemption from United States federal, state or local withholding
taxes. Each Class C Purchaser or Participant holding an interest in Class C
Notes also agrees to deliver to the Issuer, the Seller, the Servicer, the
Indenture Trustee and the Administrative Agent two further copies of such Form
W-8ECI or Form W-8BEN and Form W-9, or such successor applicable forms or other
manner of certification, as the case may be, on or before the date that any such
form expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent form previously delivered by it hereunder, and such
extensions or renewals thereof as may reasonably be requested by the Servicer,
the Seller or the Administrative Agent, unless in any such case, solely as a
result of a change in treaty, law or regulation occurring prior to the date on
which any such delivery would otherwise be required, the Class C Purchaser is no
longer eligible to deliver the then-applicable form set forth above and so
advises the Servicer, the Seller and the Administrative Agent. Each Class C
Purchaser certifies, represents and warrants as of the Closing Date, each
Assignee and each Participant (in either case other than a Support Party) shall
certify, represent and warrant as a condition of acquiring its Assignment or
Participation as of the effective date of the Transfer Supplement to which it is
a party or of such Participation, as the case may be, and each Support Party
shall certify, represent and warrant as of the effective date of its becoming a
Support Party, that (x) it is entitled to receive payments under this Agreement
and with respect to the Class C Notes without deduction or withholding of any
United States federal income taxes and (y) it is entitled to an exemption from
United States backup withholding tax. Notwithstanding anything to the contrary
herein, each of the Issuer, the Servicer and the Trustee shall be entitled to
withhold any amount that it reasonably determines is required to be withheld
pursuant to Section 1446 of the Code, and such amount shall be deemed to have
been paid to the Class C Purchaser, Assignee or Participant for all purposes of
the Agreement.
2.5 Indemnification.
---------------
-18-
(a) The Seller agrees to indemnify and hold harmless the
Administrative Agent and each Class C Purchaser and any director, officer,
employee or agent thereof (each such Person being an "Indemnitee") from and
----------
against any and all claims, damages, losses, liabilities, costs or expenses
(including reasonable fees and out-of-pocket expenses of counsel) whatsoever
(including claims under federal or state securities laws), which the Indemnitee
may incur (or which may be claimed against the Indemnitee) by reason of or in
connection with (i) the execution and delivery of this Agreement or any Related
Document or the Class C Notes or the assignment hereof to any Support Party,
(ii) the offer and sale by or on behalf of the Issuer, the Seller or any of
their affiliates of the Series 2001-A Notes or (iii) the other transactions
contemplated hereby, except (A) to the extent that any such claim, damage, loss,
liability, cost or expense shall be caused by the willful misconduct or gross
negligence of the Indemnitee, (B) to the extent that any such claim, damage,
loss, liability, cost or expense relates to Taxes or amounts payable by the
Issuer under Section 2.3 or 2.4 hereof, (C) for recourse for the payment of
principal of or interest on, or other amounts due in respect of, the Class C
Notes as a result of nonpayment by Obligors on the Accounts or the related
Receivables or (D) is attributable to market fluctuations or other similar
market or investment risk associated with ownership of the Class C Notes. The
foregoing indemnity shall include indemnification for any claims, damages,
losses, liabilities, costs or expenses (including fees and expenses of counsel)
to which the Indemnitee may become subject under the Act, the Securities
Exchange Act of 1934, as amended, the Investment Company Act of 1940, as
amended, or any other Federal or state law or regulation (including Federal
banking laws and regulations) arising out of or based upon any untrue statement
or alleged untrue statement of a material fact in the Registration Statement at
the time it became effective or the Prospectus or any amendments thereof or
supplements thereto or arising out of or based upon the omission or the alleged
omission to state a material fact necessary to make the statements in the
Registration Statement at the time it became effective or the Prospectus or any
amendment thereof or supplement thereto, in light of the circumstances in which
they were made, not misleading. Subject to the limitations set forth above, but
without limiting the generality of the foregoing, the Seller agrees to indemnify
and hold harmless the Administrative Agent from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including at any time following the payment of the obligations under this
Agreement, including payment of the Class C Note Principal Balance) be imposed
on, incurred by or asserted against the Administrative Agent in any way relating
to or arising out of this Agreement, or any documents contemplated by or
referred to herein or the transactions contemplated hereby or any action taken
or omitted by the Administrative Agent under or in connection with any of the
foregoing; provided that the Seller shall not be liable under this sentence for
--------
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of the
Administrative Agent resulting from its own gross negligence or willful
misconduct. Promptly after receipt by the Administrative Agent or a Class C
Purchaser of notice of the commencement of any action, the Administrative Agent
or Class C Purchaser, as the case may be, will, if a claim in respect thereof is
to be made under this subsection 2.5(a), notify the Seller in writing of the
commencement thereof; provided, however, the omission to so notify the Seller
-------- -------
will not relieve the Seller from any liability which it may have to the
Administrative Agent or Class C Purchaser
-19-
under this subsection 2.5(a) except to the extent the Seller was actually
prejudiced by the failure to give such notices promptly.
(b) FCNB and any Successor Servicer, by accepting its appointment
pursuant to the Transfer and Servicing Agreement, (i) shall agree to be bound by
the terms, covenants and conditions contained herein applicable to the Servicer
and to be subject to the duties and obligations of the Servicer hereunder, (ii)
as of the date of its acceptance, shall be deemed to have made with respect to
itself only the representations and warranties made by the Servicer in
subsections 4.1(a) through 4.1(e) hereof (in the case of subsection 4.1(a) with
appropriate factual changes) and (iii) shall agree to indemnify and hold
harmless any Indemnitee from and against any and all claims, damages, losses,
liabilities, costs or expenses (including the fees and expenses of counsel)
whatsoever which such Indemnitee may incur (or which may be claimed against such
Indemnitee) by reason of the negligence or willful misconduct of such Servicer
in exercising its powers and carrying out its obligations under this Agreement,
the Transfer and Servicing Agreement or any Related Document.
(c) In the event that for any reason, (i) the basis for
calculation of interest on any CP Conduit's Percentage Interest of the Class C
Note Principal Balance shall change from the Commercial Paper Rate to the
Alternative Rate, (ii) any CP Conduit receives any repayment of its share of the
Class C Note Principal Balance, and the date of such change or of such repayment
is not the maturity date for all Commercial Paper Notes allocated by such CP
Conduit to funding its purchase or maintenance of the affected portion of its
Percentage Interest of the Class C Note Principal Balance, or (iii) any Class C
Purchaser receives any repayment of its share of the Class C Note Principal
Balance on a date other than a Distribution Date or upon fewer than two Business
Days' prior (or, with respect to amounts listed at the Alternative Rate based on
the Adjusted Eurodollar Rate, two Business Days') written notice, then in any
----
such case the Issuer agrees to indemnify each affected Class C Purchaser
against, and to promptly pay on demand directly to such Class C Purchaser the
amount equal to any loss or reasonable out-of-pocket expense suffered by such
Class C Purchaser as a result of such change or such repayment, including, in
the case of a CP Conduit, any actual loss, cost or expense suffered by such CP
Conduit by reason of its issuance of Commercial Paper Notes or its incurrence of
other obligations reasonably allocated by such CP Conduit to its funding or the
maintenance of its funding of its share of the Class C Note Principal Balance,
or, in the case of any Class C Purchaser, redeploying funds prepaid or repaid,
in amounts which correspond to its share of the Class C Note Principal Balance.
A statement setting forth in reasonable detail the calculations of any
additional amounts payable pursuant to this Section submitted by a Class C
Purchaser or Agent or by the Administrative Agent, as the case may be, to the
Issuer and the Servicer and shall be conclusive absent manifest error.
ARTICLE 3 CONDITIONS PRECEDENT
3.1 Conditions to Initial Purchase. The following shall be
------------------------------
conditions precedent to the purchase of the Class C Notes by the Class C
Purchasers:
-20-
(a) the representations and warranties of the Issuer and FCNB set
forth or referred to in Sections 4.1 and 4.2, respectively, hereof shall be true
and correct in all material respects on the Closing Date as though made on and
as of the Closing Date, and no event which of itself or with the giving of
notice or lapse of time, or both, would constitute a Series 2001-A Pay Out Event
shall have occurred and be continuing on the Closing Date;
(b) the Supplemental Fee Letter and the Supplemental Spread
Account Letter shall have been executed and delivered by the Issuer and FCNB to
the Administrative Agent;
(c) the Class A Notes in the Class A Initial Note Principal
Balance and the Class B Notes in the Class B Initial Note Principal Balance
shall have been duly issued in accordance with the Indenture; the Spread Account
shall have been established with the Indenture Trustee, and the amount on
deposit in the Spread Account shall equal at least the Spread Account Cap;
(d) the Seller shall have paid all fees payable on the Closing
Date to the Administrative Agent (for its own account or for the account of the
initial Class C Purchasers) described in the Supplemental Fee Letter and all
reasonable and appropriately invoiced costs and expenses of the Administrative
Agent and Class C Purchasers payable by the Seller, to the extent provided
herein, in connection with the transactions contemplated hereby; and
(e) the Administrative Agent on behalf of the Class C Purchasers
shall have received on the Closing Date the following items, each of which shall
be in form and substance satisfactory to the Administrative Agent:
(i) an Officer's Certificate of FCNB confirming the
satisfaction of the conditions set forth in clauses (a) and (c);
(ii) a copy of (A) the certificate of incorporation and
by-laws of, and an incumbency certificate with respect to its officers executing
any of the Related Documents on the Closing Date on behalf of FCNB, certified by
its authorized officer, and (B) resolutions of the Board of Directors (or an
authorized committee thereof) of FCNB with respect to the Related Documents to
which it is party, certified by its authorized officer;
(iii) a certificate issued on a recent date by the
Comptroller of the Currency evidencing the legal existence and good standing of
FCNB as a national banking association;
(iv) the favorable written opinions of counsel for the
Issuer, the Owner Trustee, the Indenture Trustee and FCNB, addressed to the
Administrative Agent and Class C Purchaser, or accompanied by a letter providing
that the Administrative Agent and Class C Purchaser may rely on such opinions as
if they were addressed to them, and dated the Closing Date, covering general
corporate matters, the due execution and delivery of, and the enforceability of,
each of the Related Documents to which the Issuer, the Owner Trustee, the
-21-
Indenture Trustee and FCNB (individually or in any other capacity) is party,
sale/security interest matters and such other matters as the Administrative
Agent may request;
(v) evidence of the due execution and delivery by the
Owner Trustee, on behalf of the Trust, and the Indenture Trustee of the Related
Documents to which each is party;
(vi) an executed copy of the Pooling and Servicing
Agreement, the Collateral Series Supplement, the Transfer and Servicing
Agreement, the Master Indenture, the Supplemental Indenture, the Trust Agreement
and the Administration Agreement;
(vii) a certificate of the Indenture Trustee as to the
establishment of certain accounts as provided in the Indenture;
(viii) the duly executed Class C Note(s) registered in the
name of the Administrative Agent as nominee on behalf of the Class C Owners;
(ix) evidence satisfactory to the Administrative Agent that
financing statements duly executed by First Consumers Master Trust, FCNB and the
Issuer or other, similar instruments or documents, as may be necessary or, in
the opinion of the Administrative Agent or any Class C Purchaser, desirable
under the Uniform Commercial Code of all appropriate jurisdictions or any
comparable law to perfect the transfers (including grants of security interests)
under the Related Documents have been delivered and, if appropriate, have been
duly filed or recorded and that all filing fees, taxes or other amounts required
to be paid in connection therewith have been paid;
(x) certified copies of requests for information or copies
(or a similar search report certified by a party acceptable to the
Administrative Agent), dated a date reasonably near to the Closing Date, listing
all effective financing statements which name First Consumers Master Trust, FCNB
or the Issuer (under its present name and any previous name) as debtor and which
are filed in the jurisdictions in which the statements referred to in clause (x)
above were or are to be filed, together with copies of such financing statements
(none of which, other than financing statements naming the party under the
Related Documents to which transfers (including grants of security interests)
thereunder purport to have been made shall cover any of the property purported
to be conveyed thereunder);
(xi) evidence satisfactory to the Administrative Agent that
the Class C Notes have been rated at least Baa2 by Moody's Investors Service and
BBB by Standard & Poor's.
(xii) evidence satisfactory to each initial CP Conduit that
its purchase of Class C Notes and Class C Note Principal Balance Increases
hereunder will not result in a reduction or withdrawal of the rating of its
Commercial Paper Notes by Moody's, S&P or any other nationally recognized rating
agency
-22-
(xiii) evidence satisfactory to the Administrative Agent that
all amounts outstanding under First Consumers Master Trust Series 2000-A have
been repaid in full;
(xiv) evidence satisfactory to the Administrative Agent that
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 Related Documents in
any material respect; and
(xv) such additional documents, instruments, certificates
or letters as the Administrative Agent or Class C Purchaser may reasonably
request.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of FCNB. FCNB represents and
--------------------------------------
warrants to the Class C Purchasers and the Administrative Agent that the
representations and warranties of FCNB (as Seller or Servicer set forth in the
Transfer and Servicing Agreement, the Indenture and the other Related Documents
are true and correct as of the date hereof (except for representations or
warranties which relate to a specific date, which shall be true and correct as
of such date). FCNB further represents and warrants to, and agrees with, each
Class C Purchaser and the Administrative Agent that, as of the date hereof:
(a) FCNB is a national banking association duly organized,
validly existing and in good standing under the laws of the United States of
America, with full power and authority under such laws 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 and the Related Documents to which it is a party.
(b) FCNB has the power and authority to execute, deliver and
perform this Agreement and the Related Documents to which it is a party and all
the transactions contemplated hereby and thereby and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement
and such Related Documents. When executed and delivered, each of this Agreement
and each Related Document to which FCNB is a party will constitute the legal,
valid and binding agreement of FCNB, enforceable in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium and other laws of general applicability
relating to or affecting creditors' rights generally and the rights of creditors
from time to time in effect. The enforceability of FCNB's obligations under such
agreements is also subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law,
and indemnification sought in respect of securities laws violations may be
limited by public policy.
(c) No consent, license, approval or authorization of, or
registration with, any governmental authority, bureau or agency is required to
be obtained in connection with the execution, delivery or performance of each of
this Agreement or any Related Documents that has not been duly obtained and
which is not and will not be in full force and effect on the Closing Date,
except such that may be required by the blue sky laws of any state and except
those which
-23-
the failure to obtain individually or in the aggregate, would not have a
material adverse effect on the Issuer or FCNB or the transactions contemplated
by, or the ability of the Issuer or FCNB to perform its respective obligations
under, this Agreement or the Related Documents.
(d) The execution, delivery and performance of each of this
Agreement and the Related Documents do not violate any provision of any existing
law or regulation applicable to FCNB, any order or decree of any court to which
FCNB is subject, its charter or by-laws or any mortgage, indenture, contract or
other agreement to which FCNB is a party or by which it or any significant
portion of FCNB's properties is bound (other than violations of such laws,
regulations, orders, decrees, mortgages, indentures, contracts and other
agreements which do not affect the legality, validity or enforceability of any
of such agreements or the Receivables and which, individually or in the
aggregate, would not have a material adverse effect on the Issuer or FCNB or the
transactions contemplated by, or the ability of the Issuer or FCNB to perform
its respective obligations under, this Agreement or the Related Documents).
(e) There is no litigation or administrative proceeding before
any court, tribunal or governmental body presently pending or, to the knowledge
of FCNB, threatened, against FCNB with respect to this Agreement and the Related
Documents, the transactions contemplated hereby or thereby or the issuance of
the Series 2001-A Notes, and there is no such litigation or proceeding against
FCNB or any significant portion of FCNB properties, in each case which would
have a material adverse effect on the Issuer or FCNB or the transactions
contemplated by, or the ability of the Issuer or FCNB to perform its respective
obligations under, this Agreement or the Related Documents.
(f) The Indenture is duly qualified or is not required to be
qualified under the Trust Indenture Act of 1939, and the Issuer is not required
to be registered under the Investment Company Act.
(g) The aggregate amount of the Receivables in the Accounts as of
February 28, 2001 was $1,115,087,125, consisting of $1,085,999,637 of Principal
Receivables and $29,087,488 of Finance Charge Receivables.
(h) On the Closing Date and after giving effect to the purchase
of the Class C Noteholders' Interest and the issuance of the Series 2001-A
Notes, no Series 2001-A Pay Out Event has occurred and is continuing, and no
event, act or omission has occurred and is continuing which, with the lapse of
time, the giving of notice or both, would constitute a Series 2001-A Pay Out
Event.
(i) When the Registration Statement became effective, when the
Prospectus was first filed pursuant to Rule 424(b) under the Act, when any
amendment or supplement to the Registration Statement or Prospectus is filed
with the Commission, and at the Closing Date, neither the Registration Statement
nor the Prospectus nor any amendment thereof or any supplement thereto (a)
contained or will contain any untrue statement of a material fact or omitted or
will omit to state any material fact necessary to make the statements therein,
in the
-24-
light of the circumstances under which they were made, not misleading or (b)
disclosed or will disclose the identity of the Administrative Agent or any Class
C Purchaser.
(j) FCNB has delivered to the Agent complete and correct copies
of the publicly available portions of FCNB's Consolidated Reports of Condition
and Income for the quarter ended December 31, 2000. There has not been any
material adverse change in the business, operations, financial condition,
properties or assets of the Seller since the quarter ended December 31, 2000
except as disclosed in the Prospectus.
4.2 Representations and Warranties of the Issuer. The Issuer
--------------------------------------------
represents and warrants to the Class C Purchasers and the Administrative Agent
that the representations and warranties of the Issuer set forth in the Transfer
and Servicing Agreement, the Indenture and the other Related Documents are true
and correct as of the date hereof (except for representations or warranties
which relate to a specific date, which shall be true and correct as of such
date). The Issuer further represents and warrants to, and agrees with, each
Class C Purchaser and the Administrative Agent that, as of the date hereof:
(a) The Issuer is a common law trust duly organized, validly
existing and in good standing under the laws of the State of Illinois, with full
power and authority under such laws 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 and the Related Documents to which it is a party.
(b) The Issuer has the power and authority to execute, deliver
and perform this Agreement and the Related Documents to which it is a party and
all the transactions contemplated hereby and thereby and has taken all necessary
trust action to authorize the execution, delivery and performance of this
Agreement and such Related Documents. When executed and delivered, each of this
Agreement and each Related Document to which the Issuer is a party will
constitute the legal, valid and binding agreement of the Issuer, enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium and other laws of
general applicability relating to or affecting creditors' rights generally and
the rights of creditors from time to time in effect. The enforceability of the
Issuer's obligations under such agreements is also subject to general principles
of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law, and indemnification sought in respect of
securities laws violations may be limited by public policy.
(c) No consent, license, approval or authorization of, or
registration with, any governmental authority, bureau or agency is required to
be obtained in connection with the execution, delivery or performance of each of
this Agreement or any Related Documents that has not been duly obtained and
which is not and will not be in full force and effect on the Closing Date,
except such that may be required by the blue sky laws of any state and except
those which the failure to obtain individually or in the aggregate, would not
have a material adverse effect on the Issuer or FCNB or the transactions
contemplated by, or Issuer's ability to perform its obligations under, this
Agreement or the Related Documents.
-25-
(d) The execution, delivery and performance of each of this
Agreement and the Related Documents do not violate any provision of any existing
law or regulation applicable to the Issuer, any order or decree of any court to
which the Issuer is subject, its governing instrument or any mortgage,
indenture, contract or other agreement to which the Issuer is a party or by
which it or any significant portion of the Issuer's properties is bound (other
than violations of such laws, regulations, orders, decrees, mortgages,
indentures, contracts and other agreements which do not affect the legality,
validity or enforceability of any of such agreements or the Receivables and
which, individually or in the aggregate, would not have a material adverse
effect on the Issuer or the transactions contemplated by, or the Issuer's
ability to perform its respective obligations under, this Agreement or the
Related Documents.)
(e) There is no litigation or administrative proceeding before
any court, tribunal or governmental body presently pending or, to the knowledge
of the Issuer, threatened, against the Issuer with respect to this Agreement and
the Related Documents, the transactions contemplated hereby or thereby or the
issuance of the Series 2001-A Notes, and there is no such litigation or
proceeding against the Issuer or any significant portion of the Issuer
properties, in each case which would have a material adverse effect on the
Issuer or the transactions contemplated by, or the ability of the Issuer to
perform its obligations under, this Agreement or the Related Documents.
(f) The Indenture is duly qualified or is not required to be
qualified under the Trust Indenture Act of 1939, and the Issuer is not required
to be registered under the Investment Company Act.
(g) On the Closing Date and after giving effect to the purchase
of the Class C Noteholders' Interest and the issuance of the Series 2001-A
Notes, no Series 2001-A Pay Out Event has occurred and is continuing, and no
event, act or omission has occurred and is continuing which, with the lapse of
time, the giving of notice or both, would constitute a Series 2001-A Pay Out
Event.
4.3 Representations and Warranties of the Class C Purchasers.
--------------------------------------------------------
Each of the Class C Purchasers severally (each with respect to itself only)
represents and warrants to, and agrees with, the Issuer, FCNB and the Servicer
that:
(a) Such Class C Purchaser has been duly authorized and is
validly existing and in good standing under the laws of its jurisdiction of
organization, with power and authority to own its properties and to transact the
business in which it is now engaged;
(b) Such Class C 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
such Class C Purchaser of this Agreement and the consummation by such Class C
Purchaser of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporation action on the part of such Class C
Purchaser. This Agreement has been duly and validly executed and delivered by
such Class C Purchaser and constitutes a legal, valid and binding obligation of
such Class C
-26-
Purchaser, enforceable against such Class C 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 such Class C Purchaser of this Agreement nor the
consummation by such Class C Purchaser of any of the transactions contemplated
hereby, nor the fulfillment by such Class C Purchaser of the terms hereof, will
conflict with, or violated, result in a breach of or constitute a default under
(i) any term or provision of the certificate of incorporation or articles of
association or By-laws of such Class C Purchaser or any Requirement of Law
applicable to such Class C Purchaser or (ii) any term or provision of any
indenture or other agreement or instrument, to which such Class C Purchaser is a
party or by which such Class C Purchaser or any portion of its properties are
bound;
(c) Such Class C Purchaser understands and agrees that receipt by
the Issuer of a duly executed Investment Letter pursuant to Section 8.1 hereof
is a condition precedent to the Issuer's obligations hereunder to sell the Class
C Notes;
(d) Such Class C Purchaser is not required to register as an
"investment company" nor is such Class C Purchaser controlled by an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.;
and
(e) No registration with, consent or approval of or other action
by any federal, state, or other governmental authority or regulatory body having
jurisdiction over such Class C Purchaser is required in connection with the
execution, delivery or performance by such Class C Purchaser of this Agreement.
ARTICLE 5 COVENANTS
5.1 Covenants. Each of FCNB, the Servicer and the Issuer
---------
severally covenants and agrees, in each case as to itself individually or in
such respective capacities, each with respect to itself only, through the Series
Termination Date and thereafter so long as any amount of the Class C Note
Principal Balance shall remain outstanding or any monetary obligation arising
hereunder shall remain unpaid, unless the Required Class C Owners shall
otherwise consent in writing, that:
(a) Each of FCNB, the Servicer and the Issuer shall perform in
all material respects each of the respective agreements, warranties and
indemnities applicable to it under the Related Documents and comply in all
material respects with each of the respective terms and provisions applicable to
it under the Related Documents to which it is party, which agreements,
warranties and indemnities are hereby incorporated by reference into this
Agreement as if set forth herein in full; and each of the Servicer and the
Issuer shall take all reasonable actions to enforce the obligations of each of
the other parties to Pooling and Servicing Agreement, the Collateral Series
Supplement and the Collateral Certificate which are contained therein;
(b) The Seller, the Issuer and the Servicer, as applicable, shall
promptly furnish to the Administrative Agent (i) a copy of each certificate,
report, statement, notice or
-27-
other communication (including without limitation, a copy of any Opinion of
counsel delivered pursuant to Section 8.9 of the Indenture) furnished by or on
behalf of the Seller, the Issuer or the Servicer, as applicable, to the holders
of Series 2001-A Notes, to the Indenture Trustee or to the Rating Agencies
(other than any portion of any such communication relating to other outstanding
Series) concurrently therewith and furnish to the Administrative Agent promptly
after receipt thereof a copy of each notice, demand or other communication
received by or on behalf of the Seller, the Issuer or the Servicer, as
applicable, pursuant to this Agreement, the Transfer and Servicing Agreement,
the Indenture, the Indenture Supplement or any Pooling and Servicing Agreement
or the Collateral Series Supplement (other than any portion of any such
communication relating to other outstanding Series), and (ii) such other
information, documents records or reports respecting the Accounts, the
Receivables, the Issuer, the Seller or the Servicer which is in the possession
or under the control of the Issuer, the Seller or the Servicer, as the case may
be, as the Administrative Agent may from time to time reasonably request. Each
such communication provided hereunder shall be furnished to the Administrative
Agent in writing;
(c) The Issuer or the Servicer, as applicable, shall furnish to
the Administrative Agent (i) a copy of each annual certified public accountants'
reports received by the Indenture Trustee pursuant to Section 3.6 of the
Transfer and Servicing Agreement (other than any portion of such reports
relating to other outstanding Series), (ii) with respect to each Distribution
Date with respect to the Transfer and Servicing Agreement, a copy of the
completed report furnished to the Indenture Trustee pursuant to Section 3.4(b)
of the Transfer and Servicing Agreement, and (iii) a copy of any other report
furnished to the Indenture Trustee pursuant to Section 3.5 of the Transfer and
Servicing Agreement (other than any portion of such reports relating to other
outstanding Series);
(d) There shall be no assets included in the Trust Assets other
than any Collateral Certificate or, upon termination of the First Consumers
Master Trust, the assets previously included in or includible in the First
Consumers Master Trust or as consented to by the Administrative Agent;
(e) Each of FCNB, the Servicer and the Issuer shall furnish to
the Administrative Agent promptly after known to such party, information with
respect to any action, suit or proceeding involving such party or any of its
Affiliates (other than, in the case of the Servicer, FCNB and the Issuer) by or
before any court or any Governmental Authority which, if adversely determined,
would be reasonably likely to result in a material and adverse effect on such
party or the transactions contemplated by, or such party's ability to perform
its obligations under, this Agreement or the Related Documents;
(f) From the Closing Date until the Termination Date, each of the
Issuer, the Seller and the Servicer, as applicable, will, at any time and from
time to time during regular business hours, on at least five Business Days' (or
if a Series 2001-A Pay Out Event or event or condition which, with the passage
of time or the giving of notice, or both, would become a Series 2001-A Pay Out
Event has occurred, one Business Day's) notice to the Issuer, the Seller or the
Servicer, as the case may be, permit the Administrative Agent, or its agents or
representatives, at the Issuer's, the Seller's and the Servicer's, as
applicable, reasonable cost and expense if a Series
-28-
2001-A Pay Out Event has occurred (and otherwise at the expense of the
Administrative Agent), (i) to examine all books, records and documents
(including computer tapes and disks) in the possession or under the control of
the Issuer, the Seller or the Servicer, as the case may be, relating to the
Receivables (other than names of account holders and strategic plans for the
Servicer's credit card business and other than any portion of such books,
records and documents relating to other outstanding Series), including the forms
of Credit Card Agreements under which such Receivables arise, and (ii) to visit
the offices and properties of the Issuer, the Seller or the Servicer, as
applicable, for the purpose of examining such materials described in clause (i)
above. Any information obtained by the Administrative Agent pursuant to this
Section 5.1(f) shall be held in confidence by the Administrative Agent in
accordance with the provisions of Section 6.2 hereof, except that the
Administrative Agent may disclose such information to any Class C Purchaser
which shall hold such information in accordance with the provisions of Section
6.2 hereof;
(g) Except for New Issuances in accordance with Section 2.12 of
the Indenture and modifications to Supplemental Indentures with respect to
Series other than Series 2001-A and except for terminations, amendments, waiver
and modifications of Related Documents otherwise permitted hereunder, none of
FCNB, the Servicer or the Issuer shall take any action which, under the terms of
the Related Documents, requires the satisfaction of the Rating Agency Condition,
if such action would materially adversely affect the Class C Purchasers, unless
such action has been consented to by the Required Class C Owners;
(h) Neither the Seller nor the Issuer shall reduce or withdraw
any Discount Percentage if the Early Amortization Commencement Date has
occurred. Neither the Seller nor the Issuer shall reduce or withdraw any
Discount Percentage unless it shall have delivered to the Administrative Agent
an Officer's Certificate of the Servicer stating that the Servicer reasonably
believes that such reduction or withdrawal will not (i) result in the occurrence
of a Series 2001-A Pay Out Event or (ii) cause the Portfolio Yield to be less
than the Base Rate;
(i) FCNB shall not amend the Collateral Certificate, the Pooling
and Servicing Agreement, the Collateral Series Supplement or any other Related
Document in any respect which could have a material adverse effect on the Class
C Purchasers without the prior written consent of by the Required Class C
Owners;
(j) Any determination to be made by FCNB, the Servicer or the
Issuer pursuant to any Related Document that a matter does not adversely or
materially adversely affect (within the meaning of such Related Document) the
interests of Noteholders shall not be made unless such matter does not adversely
or materially adversely affect the interests of the Class C Purchasers;
(k) The Issuer shall not exercise its optional right to repay all
Class C Notes pursuant to Section 7.1 of the Supplemental Indenture, unless the
Class C Purchasers and the Administrative Agent have been paid, or will be paid
upon such purchase or in connection with such optional repayment, the Class C
Note Principal Balance, all interest thereon and all other amounts owing
hereunder in full;
-29-
(l) The Servicer shall furnish to the Administrative Agent,
promptly after the occurrence of any Series 2001-A Pay Out Event, a certificate
of an appropriate officer of the Servicer setting forth the circumstances of
such Series 2001-A Pay Out Event and any action taken or proposed to be taken by
the Servicer, FCNB or the Issuer with respect thereto;
(m) Each of the Seller, the Issuer and the Servicer, as
applicable, shall not terminate (except in accordance with the terms thereof and
only if at the time of such termination none of the Class C Note Principal
Balance or other amount payable to the Administrative Agent and the Class C
Purchasers hereunder is unpaid), amend, waive or otherwise modify any
Transaction Document to which it is a party in any manner which, under the terms
of the Transaction Documents, requires the satisfaction of the Rating Agency
Condition without the prior written consent of the Administrative Agent, unless
the Seller, the Issuer or the Servicer, as applicable, delivers to the
Administrative Agent an Officer's Certificate, in form and substance
satisfactory to the Administrative Agent, to the effect that such amendment,
waiver or modification does not adversely affect the interest of the Class C
Purchasers in any material respect. Each of the Seller, the Issuer and the
Servicer, as applicable, shall not terminate (except in accordance with the
terms thereof and only if at the time of such termination none of the Class C
Note Principal Balance or other amount payable to the Administrative Agent and
the Class C Purchasers hereunder is unpaid), amend, waive or otherwise modify
the Indenture Supplement without the prior written consent of the Administrative
Agent;
(n) There shall be no Series of Notes other than Series 2001-A
included in Group One without the prior written consent of the Required Class C
Owners if after giving effect to the issuance of such Series the weighted
average coupon on the outstanding securities issued by First Consumers Master
Trust and the Issuer exceeds 9.00%. There shall be no Series of Notes paired
with Series 2001-A without the prior written consent of the Required Class C
Owners; and
(o) The Servicer shall furnish to the Rating Agencies, promptly
after the occurrence of any Cap Increase Event, written notice thereof.
-30-
ARTICLE 6 MUTUAL COVENANTS REGARDING CONFIDENTIALITY
6.1 Covenants. Each of FCNB, the Servicer and the Issuer,
---------
severally and with respect to itself only, covenants and agrees to hold in
confidence, and not disclose to any Person, the terms of any fees payable in
connection with this Agreement or the identity of any CP Conduit which is an
agent, a purchaser or beneficial owner of Class C Notes under this Agreement,
except as the Administrative Agent or Class C Purchaser, as the case may be, may
have consented to in writing prior to any proposed disclosure and except it may
disclose such information (i) to its officers, directors, employees, agents,
counsel, accountants, auditors, advisors or representatives or (ii) to the
extent it should be (A) required by law, rule or regulation or in connection
with any legal or regulatory proceeding or (B) requested by any Governmental
Authority to disclose such information; provided, that, in the case of clause
--------
(ii)(A), FCNB, the Servicer or the Issuer, as applicable, will use all
reasonable efforts to maintain confidentiality and will (unless otherwise
prohibited by law) notify the affected Administrative Agent or Class C Purchaser
of its intention to make any such disclosure prior to making such disclosure. It
is expressly hereby acknowledged that nothing contained in this paragraph be
deemed to prohibit disclosure of the identity of the Administrative Agent under
this Agreement by FCNB, the Servicer or the Issuer.
6.2 Covenants of Class C Purchasers. The Administrative Agent and
-------------------------------
each Class C Purchaser, severally and with respect to itself only, covenants and
agrees that any nonpublic information obtained by it pursuant to this Agreement
shall be held in confidence (it being understood that documents provided to the
Administrative Agent or any Class C Purchaser hereunder may in all cases be
distributed to the Administrative Agent or to any Class C Purchaser) except that
the Administrative Agent or Class C Purchaser may disclose such information (i)
to its officers, directors, employees, agents, counsel, accountants, auditors,
advisors or representatives, (ii) to the extent such information has become
available to the public other than as a result of a disclosure by or through the
Administrative Agent or Class C Purchaser, (iii) to the extent such information
was available to the Administrative Agent or such Class C Purchaser on a
nonconfidential basis prior to its disclosure to the Administrative Agent or any
Class C Purchaser hereunder, (iv) with the consent of the affected party, (v) to
the extent permitted by Section 8.1 of this Agreement, (vi) in the case of any
Class C Purchaser that is a CP Conduit, to placement agents and providers of
liquidity and credit support who agree to hold such information in confidence or
to rating agencies, or (vii) to the extent the Administrative Agent or such
Class C Purchaser should be (A) required by law, rule or regulation or in
connection with any legal or regulatory proceeding or (B) requested by any
Governmental Authority to disclose such information; provided, that in the case
--------
of clause (vii)(A), the Administrative Agent or Class C Purchaser, as the case
may be, will use all reasonable efforts to maintain confidentiality and will
(unless otherwise prohibited by law) notify the affected party of its intention
to make any such disclosure prior to making any such disclosure.
-31-
ARTICLE 7 THE ADMINISTRATIVE AGENT
7.1 Appointment. Each Class C Purchaser hereby irrevocably
-----------
designates and appoints the Administrative Agent as the agent of such Class C
Purchaser under this Agreement, and each such Class C Purchaser irrevocably
authorizes the Administrative Agent, as the agent for such Class C Purchaser, to
take such action on its behalf under the provisions of the Related Documents and
to exercise such powers and perform such duties thereunder as are expressly
delegated to the Administrative Agent by the terms of the Related Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Class C
Purchaser, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against any Administrative Agent.
7.2 Delegation of Duties. The Administrative Agent may execute
--------------------
any of its duties under any of the Related Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
7.3 Exculpatory Provisions. Neither the Administrative Agent nor
----------------------
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) liable to any of the Class C Purchasers for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with any of the other Related Documents (except for its or such
Person's own gross negligence or willful misconduct) or (b) responsible in any
manner to any of the Class C Purchasers for any recitals, statements,
representations or warranties made by FCNB, the Servicer, the Issuer or the
Indenture Trustee or any officer thereof contained in any of the other Related
Documents or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, any of the other Related Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any of the other Related Documents or for any failure of FCNB, the Servicer, the
Issuer or the Indenture Trustee to perform its obligations thereunder. No
Administrative Agent shall be under any obligation to any Class C Purchaser to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, any of the other Related Documents,
or to inspect the properties, books or records of FCNB, the Servicer, the Issuer
or the Indenture Trustee.
7.4 Reliance by Agents. The Administrative Agent shall be
------------------
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, written statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to the Administrative Agent),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent shall be fully justified in failing or refusing to take
any action under any of the Related Documents unless it
-32-
shall first receive such advice or concurrence of the Required Class C Owners as
it deems appropriate or it shall first be indemnified to its satisfaction by the
Class C Purchasers against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under any of the Related Documents in accordance with a
request of the Required Class C Owners, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all present and future
Class C Purchasers.
7.5 Notices. The Administrative Agent shall not be deemed to have
-------
knowledge or notice of the occurrence of any breach of this Agreement or the
occurrence of any Series 2001-A Pay Out Event unless the Administrative Agent
has received notice from the Issuer, the Servicer, the Indenture Trustee or any
Class C Purchaser, referring to this Agreement and describing such event. In the
event that the Administrative Agent receives such a notice, it shall promptly
give notice thereof to the Class C Purchasers. The Administrative Agent shall
take such action with respect to such event as shall be reasonably directed by
the Required Class C Owners; provided that unless and until the Administrative
--------
Agent shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such event as it shall deem advisable in the best interests of
the Class C Purchasers.
7.6 Non-Reliance on Agent and Other Class C Purchasers. Each
--------------------------------------------------
Class C Purchaser expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereafter taken, including any review of the affairs of
FCNB, the Servicer, the Issuer or the Indenture Trustee shall be deemed to
constitute any representation or warranty by the Administrative Agent to any
Class C Purchaser. Each Class C Purchaser represents to the Administrative Agent
that it has, independently and without reliance upon the Administrative Agent or
any other Class C Purchaser, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of FCNB, the Servicer, the Issuer, First Consumers Master
Trust, the Collateral Certificate, the Accounts, the Receivables and the
Indenture Trustee and made its own decision to purchase its interest in the
Class C Notes hereunder and enter into this Agreement. Each Class C Purchaser
also represents that it will, independently and without reliance upon the
Administrative Agent or any other Class C Purchaser, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis, appraisals and decisions in taking or not taking action under any
of the Related Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of FCNB, the Servicer, the Issuer, First
Consumers Master Trust, the Collateral Certificate, the Accounts, the
Receivables and the Indenture Trustee. Except for notices, reports and other
documents received by the Administrative Agent under Section 5 hereof, the
Administrative Agent shall have any duty or responsibility to provide any Class
C Purchaser with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of FCNB, the Servicer, the Issuer, First Consumers Master
Trust, the Collateral
-33-
Certificate, the Accounts, the Receivables or the Indenture Trustee which may
come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
7.7 Indemnification. The Purchasers (other than the CP Conduits)
---------------
agree to indemnify the Administrative Agent in its capacity as such (without
limiting the obligation (if any) of FCNB, the Servicer or the Issuer to
reimburse the Administrative Agent for any such amounts), ratably according to
their respective Percentage Interests from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including at any time following the payment of the obligations under this
Agreement, including the Class C Note Principal Balance) be imposed on, incurred
by or asserted against the Administrative Agent in any way relating to or
arising out of this Agreement, or any documents contemplated by or referred to
herein or the transactions contemplated hereby or any action taken or omitted by
the Administrative Agent under or in connection with any of the foregoing;
provided that no Class C Purchaser shall be liable for the payment of any
- --------
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of the Administrative Agent
resulting from its own gross negligence or willful misconduct. The agreements in
this subsection shall survive the payment of the obligations under this
Agreement, including the Class C Note Principal Balance.
7.8 Agent in its Individual Capacity. The Administrative Agent
--------------------------------
and its Affiliates may make loans to, accept deposits from and generally engage
in any kind of business with FCNB, the Servicer or the Issuer as though the
Administrative Agent were not an agent hereunder. In addition, the Class C
Purchasers acknowledges that DBNY may act (i) as administrator, sponsor or agent
for one or more CP Conduits and in such capacity acts and may continue to act on
behalf of each such CP Conduit in connection with its business, and (ii) as the
agent for certain financial institutions under the liquidity and credit
enhancement agreements relating to this Agreement to which any one or more CP
Conduits is party and in various other capacities relating to the business of
any such CP Conduit under various agreements. DBNY, in its capacity as
Administrative Agent, shall not, by virtue of its acting in any such other
capacities, be deemed to have duties or responsibilities hereunder or be held to
a standard of care in connection with the performance of its duties as the
Administrative Agent other than as expressly provided in this Agreement. Any
Person which is the Administrative Agent may act as the Administrative Agent
without regard to and without additional duties or liabilities arising from its
role as such administrator or agent or arising from its acting in any such other
capacity.
7.9 Successor Agent. The Administrative Agent may resign as
---------------
Administrative Agent upon thirty days' notice to the Class C Purchasers, the
Indenture Trustee, the Issuer and the Servicer with such resignation becoming
effective upon a successor agent succeeding to the rights, powers and duties of
the Administrative Agent pursuant to this Section 7.9. If the Administrative
Agent shall resign as Administrative Agent under this Agreement, then the
Required Class C Owners shall appoint from among the Class C Purchasers a
successor administrative agent. Any successor administrative agent shall succeed
to the rights, powers and duties of resigning Administrative Agent, and the term
"Administrative Agent" shall mean such
-34-
successor administrative agent or agent effective upon its appointment, and the
former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement. After
the retiring Administrative Agent's resignation as Administrative Agent, the
provisions of this Section 7 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement.
ARTICLE 8 SECURITIES LAWS; TRANSFERS
8.1 Transfers of Class C Notes.
--------------------------
(a) Each initial Class C Purchaser shall execute and deliver to
the Issuer on the Closing Date an Investment Letter substantially in the form
attached hereto as Exhibit B (an "Investment Letter"). Each Class C Owner agrees
--------- -----------------
that the beneficial interest in the Class C Notes purchased by it will be
acquired for investment only and not with a view to any public distribution
thereof, and that such Class C Owner will not offer to sell or otherwise dispose
of any Class C Note acquired by it (or any interest therein) in violation of any
of the requirements of the Securities Act or any applicable state or other
securities laws. Each Class C Owner acknowledges that it has no right to require
the Issuer to register, under the Securities Act of 1933, as amended, or any
other securities law, the Class C Notes (or the beneficial interest therein)
acquired by it pursuant to this Agreement or any Transfer Supplement. Each Class
C Owner hereby confirms and agrees that in connection with any transfer or
syndication by it of an interest in the Class C Notes, such Class C Owner has
not engaged and will not engage in a general solicitation or general advertising
including advertisements, articles, notices or other communications published in
any newspaper, magazine or similar media or broadcast over radio or television,
or any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
(b) Each initial purchaser of a Class C Note or any interest
therein and any Assignee thereof or Participant therein shall certify to the
Issuer, the Seller, the Servicer, the Indenture Trustee and the Administrative
Agent that it is either (i) a citizen or resident of the United States, (ii) a
corporation or other entity organized in or under the laws of the United States
or any political subdivision thereof or (iii) a person not described in (i) or
(ii) who is entitled to receive payments under this Agreement and with respect
to the Class C Notes without deduction or withholding of any United States
federal income taxes and whose ownership of any interest in a Class C Note will
not result in any withholding obligation with respect to any payments with
respect to the Class C Notes by any Person (other than withholding, if any,
under Section 1446 of the Code) and who will furnish to the Issuer, the Seller,
the Servicer, the Indenture Trustee, the Administrative Agent and to the Class C
Owner making the Transfer the forms described in subsection 2.4(c).
(c) Any sale, transfer, assignment, participation, pledge,
hypothecation or other disposition (a "Transfer") of a Class C Note or any
--------
interest therein may be made only in accordance with this Section 8.1. Any
Transfer of an interest in a Class C Note shall be in respect of, at least
$5,000,000 in the aggregate. Any Transfer of an interest in a Class C Note
-35-
otherwise permitted by this Section 8.1 will be permitted only if it consists of
a pro rata percentage interest in all payments made with respect to the Class C
--------
Purchaser's beneficial interest in such Class C Note. No Class C Note or any
interest therein may be Transferred by Assignment or Participation to any Person
(each, a "Transferee") unless the Transferee is a Permitted Transferee and prior
----------
to the transfer the Transferee shall have executed and delivered to the
Administrative Agent and the Issuer an Investment Letter.
Each of FCNB, the Servicer and the Issuer authorizes each
Class C Purchaser to disclose to any Transferee and Support Party and any
prospective Transferee or Support Party any and all confidential information in
the Class C Purchaser's possession concerning this Agreement or the Related
Documents or concerning the Accounts, the Receivables or such party which has
been delivered to any Class C Purchaser pursuant to this Agreement or the
Related Documents (including information obtained pursuant to rights of
inspection granted hereunder) or which has been delivered to such Class C
Purchaser by or on behalf of FCNB, the Servicer or the Issuer in connection with
such Class C Purchaser's credit evaluation of First Consumers Master Trust, the
Collateral Certificate, the Accounts, the Receivables, FCNB, the Servicer or the
Issuer prior to becoming a party to, or purchasing an interest in this Agreement
or the Class C Notes; provided that prior to any such disclosure, such
--------
Transferee or Support Party or prospective Transferee or Support Party shall
have entered into a confidentiality agreement substantially in the form of
Exhibit C hereto.
- ---------
(d) Each Class C Purchaser may, in accordance with applicable
law, at any time grant participations in all or part of its interest in the
Class C Notes, including the payments due to it under this Agreement and the
Related Documents (each, a "Participation"), to any Permitted Transferee (each,
-------------
a "Participant"); provided, however, that no Participation shall be granted to
----------- -------- -------
any Person unless and until the Administrative Agent shall have consented
thereto and the conditions to Transfer specified in this Agreement, including in
subsection 8.1(c) hereof, shall have been satisfied and that such Participation
consists of a pro rata percentage interest in all payments made with respect to
--- ----
such Class C Purchaser's beneficial interest (if any) in the Class C Notes. In
connection with any such Participation, the Administrative Agent shall maintain
a register of each Participant and the amount of each related Participation.
Each Class C Purchaser hereby acknowledges and agrees that (A) any such
Participation will not alter or affect such Class C Purchaser's direct
obligations hereunder, and (B) neither the Indenture Trustee, the Seller, the
Issuer nor the Servicer shall have any obligation to have any communication or
relationship with any Participant. Each Class C Purchaser and each Participant
shall comply with the provisions of subsection 2.4(c) of this Agreement. No
Participant shall be entitled to Transfer all or any portion of its
Participation, without the prior written consent of the Administrative Agent.
Each Participant shall be entitled to receive additional amounts and
indemnification pursuant to Sections 2.3, 2.4 and 2.5 hereof as if such
Participant were a Class C Purchaser and such Sections applied to its
Participation; provided, in the case of Section 2.4, that such Participant has
--------
complied with the provisions of subsection 2.4(c) hereof as if it were a Class C
Purchaser. Each Class C Purchaser shall give the Administrative Agent notice of
the consummation of any sale by it of a Participation.
-36-
(e) Each Class C Purchaser may, with the consent of the
Administrative Agent and in accordance with applicable law, sell or assign
(each, an "Assignment"), to any Permitted Transferee (each, an "Assignee") all
---------- --------
or any part of its interest in the Class C Notes and its rights and obligations
under this Agreement and the Related Documents pursuant to an agreement
substantially in the form attached hereto as Exhibit D hereto (a "Transfer
--------- --------
Supplement"), executed by such Assignee and the Class C Purchaser and delivered
- ----------
to the Administrative Agent for its acceptance and consent; provided, however,
-------- -------
that (i) no such assignment or sale shall be effective unless and until the
conditions to Transfer specified in this Agreement, including in subsection
8.1(c) hereof, shall have been satisfied, and (ii) in no event shall the consent
of the Administrative Agent be required in the case of an assignment by a CP
Conduit of its interest in the Class C Notes and its rights and obligations
under this Agreement and the Related Documents to any one or more of its Support
Parties. From and after the effective date determined pursuant to such Transfer
Supplement, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Transfer Supplement, have the rights and obligations of
a Class C Purchaser hereunder as set forth therein and (y) the transferor Class
C Purchaser shall, to the extent provided in such Transfer Supplement, be
released from its obligations under this Agreement; provided, however, that
-------- -------
after giving effect to each such Assignment, the obligations released by any
such Class C Purchaser shall have been assumed by an Assignee or Assignees. Such
Transfer Supplement shall be deemed to amend this Agreement to the extent, and
only to the extent, necessary to reflect the addition of such Assignee and the
resulting adjustment of Percentage Interests arising from the Assignment. Upon
its receipt and acceptance of a duly executed Transfer Supplement, the
Administrative Agent shall on the effective date determined pursuant thereto
give notice of such acceptance to the Issuer, the Servicer and the Indenture
Trustee.
Upon instruction to register a transfer of a Class C
Purchaser's beneficial interest in the Class C Notes (or portion thereof) and
surrender for registration of transfer of such Class C Purchaser's Class C
Note(s) (if applicable) and delivery to the Issuer and the Indenture Trustee of
an Investment Letter, executed by the registered owner (and the beneficial owner
if it is a Person other than the registered owner), and receipt by the Indenture
Trustee of a copy of the duly executed related Transfer Supplement and such
other documents as may be required under this Agreement, such beneficial
interest in the Class C Notes (or portion thereof) shall be transferred in the
records of the Indenture Trustee and the Administrative Agent and, if requested
by the Assignee, new Class C Notes shall be issued to the Assignee and, if
applicable, the transferor Class C Purchaser in amounts reflecting such Transfer
as provided in the Indenture. To the extent of any conflict between the
provisions of this Section 8.1 and any provisions of Section 2.05 of the Master
Indenture applicable to Transfers of Class C Notes (or interests therein), the
provisions of this Section 8.1 shall control. Successive registrations of
Transfers as aforesaid may be made from time to time as desired, and each such
registration of a transfer to a new registered owner shall be noted on the Note
Register.
(f) Each Class C Purchaser may pledge its interest in the Class C
Notes to any Federal Reserve Bank as collateral in accordance with applicable
law.
-37-
(g) Any Class C Purchaser shall have the option to change its
Investing Office, provided that such Class C Purchaser shall have prior to such
--------
change in office complied with the provisions of subsection 2.4(c) hereof and
provided further that such Class C Purchaser shall not be entitled to any
- -------- -------
amounts otherwise payable under Section 2.3 or 2.4 hereof resulting solely from
such change in office unless such change in office was mandated by applicable
law or by such Class C Purchaser's compliance with the provisions of this
Agreement.
(h) Each Affected Party shall be entitled to receive additional
payments and indemnification pursuant to Sections 2.3, 2.4 and 2.5 hereof as
though it were a Class C Purchaser and such Section applied to its interest in
or commitment to acquire an interest in the Class C Notes; provided that such
--------
Affected Party shall not be entitled to additional payments pursuant to (i)
Section 2.3 by reason of Regulatory Changes which occurred prior to the date it
became an Affected Party or (ii) Section 2.4 attributable to its failure to
satisfy the requirements of subsection 2.4(c) as if it were a Class C Purchaser,
and provided further, that unless such Affected Party has been consented to by
-------- -------
the Seller, such Affected Party shall be entitled to receive additional amounts
pursuant to Sections 2.3 or 2.4 only to the extent that its related CP Conduit
would have been entitled to receive such amounts in the absence of the
commitment and Support Advances from such Affected Party.
(i) Each Affected Party claiming increased amounts described in
Sections 2.3 or 2.4 hereof shall furnish, through its related CP Conduit, to the
Issuer, the Servicer, the Indenture Trustee and the Administrative Agent a
certificate setting forth the basis and amount of each request by such Affected
Party for any such amounts referred to in Sections 2.3 or 2.4, such certificate
to be conclusive with respect to the factual information set forth therein
absent manifest error.
8.2 Tax Characterization. It is the intention of the parties
--------------------
hereto that the Class C Notes be treated for tax purposes as indebtedness, and
the parties hereto agree to so treat the Class C Notes (to the extent permitted
by law).
-38-
ARTICLE 9 MISCELLANEOUS
9.1 Amendments and Waivers. This Agreement may not be amended,
----------------------
supplemented or modified nor may any provision hereof be waived except in
accordance with the provisions of this Section 9.1. With the written consent of
the Required Class C Owners, the Administrative Agent, the Issuer, the Seller
and the Servicer may, from time to time, enter into written amendments,
supplements, waivers or modifications hereto for the purpose of adding any
provisions to this Agreement or changing in any manner the rights of any party
hereto or waiving, on such terms and conditions as may be specified in such
instrument, any of the requirements of this Agreement; provided, however, that
-------- -------
no such amendment, supplement, waiver or modification shall (i) reduce the
amount or extend the maturity of any Class C Note or reduce the rate or extend
the time of payment of interest thereon, or reduce or alter the timing of any
other amount payable to any Class C Owner hereunder or under the Indenture, in
each case without the consent of the Class C Owner affected thereby, (ii) amend,
modify or waive any provision of this Section 9.1, or, if such amendment would
have a material adverse effect on the Class C Purchasers, the definition of
"Class C Note Principal Balance", or reduce the percentage specified in the
definition of Required Class C Owners, in each case without the written consent
of all Class C Owners or (iii) amend, modify or waive any provision of Section 7
of this Agreement without the written consent of the Administrative Agent. Any
waiver of any provision of this Agreement shall be limited to the provisions
specifically set forth therein for the period of time set forth therein and
shall not be construed to be a waiver of any other provision of this Agreement.
No such amendment, supplement, waiver or modification which would have a
material, adverse effect on the Class C Purchasers shall be effective unless the
Rating Agency Condition shall have been satisfied; it being understood that
amendments, supplements, waivers and modifications of the type set forth in
Section 10.1(a) of the Indenture shall not require satisfaction of the Rating
Agency Condition. The Servicer shall give the Rating Agencies prior notice of
any amendment, supplement, waiver or modification of this Agreement.
The Administrative Agent may cast any vote or give any consent
or direction under the Indenture or other Related Documentation on behalf of the
Class C Noteholders Group if it has been directed to do so by the Required Class
C Owners.
9.2 Notices.
-------
(a) All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or, in the case of mail or telecopy
notice, when received, addressed as follows or, with respect to an Agent or
Class C Purchaser, as set forth on the signature pages hereto or in its
respective Transfer Supplement, or to such other address as may be hereafter
notified by the respective parties hereto:
-39-
Issuer: First Consumers Credit Card Master Note Trust
c/o Bankers Trust Company, as Owner Trustee
Four Albany Street--10th Floor
New York, NY 10006
Attention: Corporate Trust and Agency Services
Telephone: 212-250-6323
Telecopy: 212-250-6439
with separate copies to FCNB.
FCNB, Servicer
or Seller: First Consumers National Bank
9300 S. W. Gemini Drive
Beaverton, Oregon 97008
Attention: President
Telephone: 503-520-8200
Telecopy: 503-520-0515
with a separate copy to:
Spiegel, Inc.
3500 Lacey Road
Downers Grove, IL 60515-5432
Attention: Treasurer
Telephone: 630-769-3250
Telecopy: 630-769-3750
Indenture Trustee: The Bank of New York
101 Barclay Street, 12th Floor
12th Floor, East
New York, New York 10286
Attention: Corporate Trust Administration
Telephone: (212) 815-8195
Telecopy: (212) 815-5544
Administrative Deutsche Bank AG, New York Branch
Agent: 31 West 52/nd/ Street
New York, New York 10019
Attention: Structured Finance
Telephone: (212) 469-4987
Telefax: (212) 469-5160
(b) All payments to be made to the Administrative Agent or any
Class C Purchaser hereunder shall be made in United States dollars and in
immediately available funds
-40-
not later than 2:00 p.m., New York City time, on the date payment is due, and,
unless otherwise specifically provided herein, shall be made to the
Administrative Agent, for the account of one or more of the Class C Purchasers
or for its own account, as the case may be. Unless otherwise directed by the
Administrative Agent, all payments to it shall be made by federal wire to the
Administrative Agent, at its account (account number 104636460008; and account
name - TTI) maintained at DBNY (ABA #026-003-780), reference FCNB Credit Card
Master Note Trust Series 2001-A, with telephone notice (including federal wire
number) to the Structured Finance Department of the Administrative Agent (212-
469-4653), or such other account as the Administrative Agent may designate in
writing to the Issuer. Unless otherwise directed by an Agent or Class C
Purchaser, all payments to it shall be made by federal wire to the account
specified on the signature pages hereto or in the Transfer Supplement by which
it became a party hereto (provided, in the case of an account specified in a
Transfer Supplement, that the Administrative Agent, the Seller, the Issuer, the
Servicer or the Indenture Trustee, as the case may be, shall have received
notice thereof).
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of any party hereto, any right, remedy, power
or privilege under any of the Related Documents shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege under any of the Related Documents 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 in the Related Documents
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the Issuer, the Seller, the Servicer, the
Administrative Agent, the Class C Purchasers, any Transferee and their
respective successors and permitted assigns, and, to the extent provided herein,
to each Indemnitee, Participant and Support Party and their respective
successors and assigns; provided that, except as provided in Section 9.5, the
--------
Issuer, the Seller and the Servicer may not assign or transfer any of their
respective rights or obligations under this Agreement without the prior written
consent of the Required Class C Owners; provided, further, that (i) in
-------- -------
connection with any such assignment the assignee shall expressly agree in
writing to assume all the obligations of the Issuer, the Seller or the Servicer,
as applicable, hereunder and (ii) no such assignment made without the prior
written consent of the Required Class C Owners shall relieve the Issuer, the
Seller or the Servicer, as applicable, of any of its obligations hereunder and
provided further that no assignment permitted hereunder shall relieve the
- -------- -------
Issuer, the Seller or the Servicer, as applicable, from any obligations arising
hereunder prior to such assignment (including obligations with respect to
breaches of representations and warranties made herein).
9.5 Successors to Servicer. In the event that a transfer of
----------------------
servicing occurs under Section 7.2 of the Transfer and Servicing Agreement, (i)
from and after the effective date of such transfer, the Successor Servicer shall
be the successor in all respects to the Servicer and shall be responsible for
the performance of all functions to be performed by the Servicer from and after
such date, except as provided in the Transfer and Servicing Agreement, and shall
be subject to all the responsibilities, duties and liabilities relating thereto
placed on the Servicer by
-41-
the terms and provisions hereof, and all references in this Agreement to the
Servicer shall be deemed to refer to the Successor Servicer, and (ii) as of the
date of such transfer, the Successor Servicer shall be deemed to have made with
respect to itself the representations and warranties made in Section 4.2 hereof
(in the case of subsection 4.2(a) with appropriate factual changes); provided,
--------
however, that the references to the Servicer contained in Section 5.1 of this
- -------
Agreement shall be deemed to refer to the Servicer with respect to
responsibilities, duties and liabilities arising out of an act or acts, or
omission, or an event or events giving rise to such responsibilities, duties and
liabilities and occurring during such time that the Servicer was Servicer under
this Agreement and shall be deemed to refer to the Successor Servicer with
respect to responsibilities, duties and liabilities arising out of an act or
acts, or omission, or an event or events giving rise to such responsibilities,
duties and liabilities and occurring during such time that the Successor
Servicer acts as Servicer under this Agreement; provided, however, to the extent
-------- -------
that an obligation to indemnify Indemnitees under Section 2.5 hereof arises as a
result of any act or failure to act of any Successor Servicer in the performance
of servicing obligations under the Transfer and Servicing Agreement, such
indemnification obligation shall be of the Successor Servicer and not its
predecessor.
9.6 Counterparts. This Agreement may be executed by one or more
------------
of the parties to this Agreement on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument.
9.7 Severability. Any provisions of this Agreement which are
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provisions in any other jurisdiction.
9.8 Integration. This Agreement, the Supplemental Spread Account
-----------
Letter and the Supplemental Fee Letter represent the agreement of the Issuer,
FCNB (as Seller and Servicer), the Administrative Agent and the Class C
Purchasers with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by any party hereto relative to
subject matter hereof not expressly set forth or referred to herein or therein
or in the Related Documents.
9.9 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CONFLICTS OF LAW PROVISIONS.
9.10 Jurisdiction; Consent to Service of Process. Each of the
-------------------------------------------
parties hereto hereby irrevocably and unconditionally (i) submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
in New York County or federal court of the United States of America for the
Southern District of New York, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment arising out of or relating to this
Agreement; (ii) agrees that all claims in respect of any such action or
proceeding may be heard and determined in
-42-
such New York State or, to the extent permitted by law, federal court; (iii)
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law; (iv) consents that any such action or
proceeding may be brought in such courts and waives any objection it may now or
hereafter have to the laying of venue of any such action or proceeding in any
such court and any objection it may now or hereafter have that such action or
proceeding was brought in an inconvenient court, and agrees not to plead or
claim the same; (v) consents to service of process in the manner provided for
notices in Section 9.2 of this Agreement (provided that, nothing in this
-------- ----
Indenture shall affect the right of any such party to serve process in any other
manner permitted by law); and (vi) waives, to the maximum extent not prohibited
by law, any right it may have to claim or recover in any such action or
proceeding any special, exemplary, punitive or consequential damages.
9.11 Termination. This Agreement shall remain in full force and
-----------
effect until the earlier to occur of (a) payment in full of the Class C Note
Principal Balance and all other amounts payable to the Class C Purchasers and
the Administrative Agent hereunder and the termination of all Commitments and
(b) the Series 2001-A Final Maturity Date; provided, that the provisions of
--------
Sections 2.3, 2.4, 2.5, 6.1, 6.2, 7.7, 8.2, 9.10, 9.12 and 9.14 shall survive
termination of this Agreement and any amounts payable to the Administrative
Agent, Class C Purchasers or any Affected Party thereunder shall remain payable
thereto.
9.12 Limited Recourse; No Proceedings.
--------------------------------
(a) The obligations of the Issuer and FCNB under this Agreement
or any other agreement, instrument, document or certificate executed and
delivered or issued by the Issuer in connection herewith are solely the
corporate obligations of the Issuer and FCNB . Except as expressly provided for
in the Trust Agreement, no recourse shall be had for the payment of any fee or
any other obligations or claim arising out of or based upon this Agreement or
any other agreement, instrument, document or certificate executed and delivered
or issued by the Issuer or FCNB in connection herewith against any holder of a
Trust Certificate, employee, officer, director, incorporator, agent or trustee
of the Issuer, FCNB or any Affiliate of the Issuer or FCNB.
(b) It is expressly understood and agreed by the parties hereto
that (i) this Agreement is executed and delivered by Bankers Trust Company, not
individually or personally but solely as the Owner Trustee of the Issuer under
the Trust Agreement, in the exercise of the powers and authority conferred and
vested in it, (ii) each of the representations, undertakings and agreements
herein made on the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by Bankers Trust Company but is
made and intended for the purpose of binding only the Issuer, (iii) nothing
herein contained shall be construed as creating any liability on Bankers Trust
Company, individually or personally, to perform any covenant either expressed or
implied contained herein, all such liability, if any, being expressly waived by
the parties hereto and by any Person claiming by, through or under the such
parties and (iv) under no circumstances shall Bankers Trust Company be
personally liable for the payment of any indebtedness or expenses of the Issuer
or be liable for the breach or
-43-
failure of any obligation, representation, warranty or covenant made or
undertaken by the Issuer under this Indenture or the other Transaction
Documents.
(c) The Administrative Agent and each Class C Purchaser
covenants and agrees that it shall 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.
(d) Each of the Issuer, the Seller, the Servicer, the
Administrative Agent, and each Class C Purchaser hereby agrees that it shall not
institute or join against any CP Conduit any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding under any
federal or state bankruptcy or similar law, for one year and a day after the
latest maturing commercial paper note, medium term note or other debt security
issued by such CP Conduit is paid.
9.13 Survival of Representations and Warranties. All
------------------------------------------
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement, the purchase of the Class C Notes
hereunder and the termination of this Agreement.
9.14 Waiver of Jury Trial. EACH OF THE ISSUER, THE SELLER, THE
--------------------
SERVICER, THE ADMINISTRATIVE AGENT, AND THE CLASS C PURCHASERS HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT, THE CLASS C NOTEHOLDERS' INTEREST OR ANY OTHER
DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF
THE ISSUER, THE SELLER, THE SERVICER, THE ADMINISTRATIVE AGENT, AND THE CLASS C
PURCHASERS. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING
INTO THIS AGREEMENT AND FOR CLASS C PURCHASERS PURCHASING AN INTEREST IN THE
CLASS C NOTEHOLDERS' INTEREST DESCRIBED HEREIN AND THE ADMINISTRATIVE AGENT
AGREEING TO ACT AS SUCH HEREUNDER.
[Remainder of page intentionally left blank.]
-44-
IN WITNESS WHEREOF, the parties hereto have caused this Class C
Note Purchase Agreement to be duly executed by their respective officers as of
the day and year first above written.
FIRST CONSUMERS CREDIT CARD MASTER NOTE
TRUST
By: Bankers Trust Company, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement dated
as of March 1, 2001
By: /s/ Eileen M. Hughes
--------------------
Name: Eileen M. Hughes
Title: Vice President
FIRST CONSUMERS NATIONAL BANK, as Seller and
Servicer
By: /s/ John R. Steele
-------------------
Name: John R. Steele
Title: Treasurer
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent
By: /s/ Adam Cohen
---------------
Name: Adam Cohen
Title: Director
By: /s/ Thomas M. Meier
-------------------
Name: Thomas M. Meier
Title: Directdor
-45-
Address for Notices:
31 West 52nd Street
New York, New York 10019
Attention: Structured Finance
Department/Securitization
Facsimile No.: (212) 469-7185
TWIN TOWERS INC., as Class C Purchaser
Commitment: $36,000,000 By: /s/ Rosa Olivery
----------------
Name: Rosa Olivery
Title: Vice President
Address for Notices and Investing Office:
P.O. Box 4024
Boston, Massachusetts 02101
Attention: R. Douglas Donaldson
Facsimile No.: (617) 951-7050
Payment Instructions:
Deutsche Bank AG, New York Branch
Account number 104636460008
Account name - TTI
ABA #026-003-780)
Reference FCNB Master Note Business Trust Series 2001-
A
Telephone notice (including federal wire number) to
the Structured Finance Department (212-469-4653)
-46-
EXHIBIT B
---------
FORM OF INVESTMENT LETTER
-------------------------
[Date]
First Consumers Credit Card Master Note Trust
c/o Bankers Trust Company, as Owner Trustee
Four Albany Street, 10/th/ Floor
New York, NY 10006
Attention: Corporate Trust and Agency Services
[Name and address of Administrative Agent]
Re First Consumers Credit Card Master Note Trust
Class C Series 2001-A Floating Rate Asset Backed Notes
------------------------------------------------------
Ladies and Gentlemen:
This letter (the "Investment Letter") is delivered by the
undersigned (the "Purchaser") pursuant to subsection 8.1(a) of the Class C Note
Purchase Agreement dated as of March 6, 2001 (as in effect, the "Note Purchase
Agreement"), among First Consumers Credit Card Master Note Trust, First
Consumers National Bank, the Class C Purchasers parties thereto and Deutsche
Bank AG, New York Branch, as Administrative Agent. Capitalized terms used herein
without definition shall have the meanings set forth in the Note Purchase
Agreement. The Purchaser represents to and agrees with the Issuer as follows:
(a) The Purchaser is authorized [to enter into the Note
Purchase Agreement and to perform its obligations thereunder and to
consummate the transactions contemplated thereby] [to purchase a
participation in obligations under the Note Purchase Agreement].
(b) The Purchaser has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of its investment in the Class C Notes and is able to
bear the economic risk of such investment. The Purchaser has been
afforded the opportunity to ask such questions as it deems necessary to
make an investment decision, and has received all information it has
requested in connection with making such investment decision. The
Purchaser has, independently and without reliance upon the
Administrative Agent or any other Class C Purchaser, and based on such
documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Accounts, the
Receivables, First Consumers Master Trust, the Collateral Certificate,
the Issuer, the Seller, the Servicer, and the Indenture Trustee and
made its own decision to purchase its interest in the Class C Notes,
and will,
-1-
independently and without reliance upon the Administrative Agent or any
other Class C Purchaser, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own
analysis, appraisals and decisions in taking or not taking action under
the Note Purchase Agreement, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Accounts, the
Receivables, First Consumers Master Trust, the Collateral Certificate,
the Issuer, the Seller, the Servicer and the Indenture Trustee.
(c) The Purchaser is an "accredited investor", as defined in
Rule 501, promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), or is a sophisticated institutional investor. The
Purchaser understands that the offering and sale of the Class C Notes
has not been and will not be registered under the Securities Act and
has not and will not be registered or qualified under any applicable
"Blue Sky" law, and that the offering and sale of the Class C Notes has
not been reviewed by, passed on or submitted to any federal or state
agency or commission, securities exchange or other regulatory body.
(d) The Purchaser is acquiring an interest in Class C Notes
without a view to any distribution, resale or other transfer thereof
except, with respect to any Class C Purchaser Interest or any interest
or participation therein, as contemplated in the following sentence.
The Purchaser will not resell or otherwise transfer any interest or
participation in the Class C Purchaser Interest, except in accordance
with Section 8.1 of the Note Purchase Agreement and (i) in a
transaction exempt from the registration requirements of the Securities
Act of 1933, as amended, and applicable state securities or "blue sky"
laws; (ii) to the Issuer or any affiliate of the Issuer; or (iii) to a
person who the Purchaser reasonably believes is a qualified
institutional buyer (within the meaning thereof in Rule 144A under the
Securities Act) that is aware that the resale or other transfer is
being made in reliance upon Rule 144A. In connection therewith, the
Purchaser hereby agrees that it will not resell or otherwise transfer
the Class C Notes or any interest therein unless the purchaser thereof
provides to the addressee hereof a letter substantially in the form
hereof.
(e) The Purchaser agrees (for the benefit of the
Administrative Agent, the Issuer, the Indenture Trustee, the Seller,
the servicer and the Class C Noteholders) to provide those forms
required to be provided by subsections 2.4(c) of the Note Purchase
Agreement at the time and in the manner described therein, and to
comply with all applicable U.S. laws and regulations with regard to the
related withholding tax exemptions. The Purchaser further certifies,
represents and warrants that unless the Seller has otherwise consented,
as of the date hereof, the Purchaser is entitled to receive payments
under the Note Purchase Agreement and with respect to the Class C Notes
without deduction of withholding of any United States federal income
taxes and it is entitled to an exemption from United States backup
withholding tax.
-2-
(f) This Investment Letter has been duly executed and
delivered and constitutes the legal, valid and binding obligation of
the Purchaser, enforceable against the Purchaser in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable
principles affecting the enforcement of creditors' rights generally and
general principles of equity.
Very truly yours,
[NAME OF PURCHASER]
By:___________________
Name:
Title:
cc: First Consumers National Bank, as Administrator
-3-
EXHIBIT C
---------
FORM OF CONFIDENTIALITY AGREEMENT
[date]
[Name and address]
Attention:
Ladies and Gentlemen:
First Consumers National Bank (the "Company") will be providing
information to you in connection with a transaction (the "Transaction") to which
the Company will be a party; and in connection therewith you have requested that
the Company furnish or otherwise make available to you certain information
concerning the Company. As a condition to our furnishing such information to
you, we are requiring that you agree, as set forth below, to treat
confidentially such information and any other information that the Company, its
agents or its representatives (including attorneys and financial advisors)
furnishes to you or your partners, officers, directors, employees, attorneys,
accountants, agents, advisors, affiliates or representatives of your agents or
advisors (all of the foregoing collectively referred to as "your
Representatives"), whether furnished before or after the date of this Agreement,
and all notes, analyses, compilations, studies or other documents, whether
prepared by you or others, which contain, is derived from, or otherwise reflect
such information (all of such information collectively referred to as the
"Confidential Information").
The term "Confidential Information" does not include information which
(i) becomes generally available to the public other than as a result of a
disclosure by you or your Representatives, or (ii) was available to you on a
non-confidential basis prior to its disclosure to you by the Company, its
representatives or its agents, or (iii) becomes available to you on a
non-confidential basis from a source other than the Company, its representatives
or its agents, provided that such source is not bound by a confidentiality
agreement with the Company or otherwise prohibited from transmitting the
information to you or your Representatives by a contractual, legal or fiduciary
obligation, or (iv) has been independently developed by you without use of any
information furnished by the Company.
It is understood that you may disclose any of the Confidential
Information to those of your Representatives who require such material for the
purpose of evaluating, or providing advice to you with respect to the
Transaction and the defense, protection and enforcement of your rights and
remedies in the agreements related to the Transaction and otherwise as provided
by law (provided that such Representatives shall be informed by you of the
confidential nature of
-1-
the Confidential Information). You agree that the Confidential Information will
be kept confidential by you and your Representatives and, except with the
specific prior written consent of the Company or as expressly otherwise
permitted by the terms hereof, will not be disclosed by you or your
Representatives, except to any person which has executed a confidentiality
agreement in form and substance similar to this Agreement (and to the
Representatives of such person). You further agree that you and your
Representatives will not use any of the Confidential Information for any reason
or purpose other than to evaluate the Transaction and to defend, protect and
enforce your rights and remedies thereunder.
The obligations of confidentiality and nondisclosure contained herein
shall not apply to the extent disclosure of the Confidential Information is
required by law or is requested by any regulatory authority or, solely with
respect to any Transaction documents, any rating agency; provided, however, in
any case in which the disclosure is so required or requested, you shall disclose
only that portion of the Confidential Information required or requested to be
disclosed. The term "person" as used in this Agreement shall be broadly
interpreted to include without limitation any corporation, company, partnership
and individual.
The obligations of confidentiality and nondisclosure contained herein
shall not apply in the event that you or any of your Representations are
requested or required (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar
process) to disclose any of the Confidential Information, provided it is agreed
that you or such Representative, as the case may be, will provide the Company
with notice of such request for disclosure as may be legally permissible and
reasonably practicable under the circumstances so that the Company may seek an
appropriate protective order or other appropriate remedy and/or waive your or
such Representative's compliance with the provisions of this Agreement. In the
event that such protective order or other remedy is not obtained, or that the
Company grants a waiver hereunder, you or such Representative may furnish that
portion (and only that portion) of the Confidential Information which you are
legally compelled to disclose or which has been waived; provided, however, you
may disclose any Confidential Information under circumstances where you
reasonably believe that the failure to disclose such information could have a
material adverse effect on your business or condition (financial or otherwise).
Although you understand that the Company has endeavored to include in
the Confidential Information known to it which it believes to be relevant for
the purpose of the Transaction, you further understand that neither the Company
nor its agents or its representatives makes any representation or warranty as to
the accuracy or completeness of the Confidential Information except such as is
made to you or your affiliates in definitive written documentation related to
the Transaction, subject to such limitations and restrictions as may be
specified therein. You agree that neither the Company nor its agents or its
representatives shall have any liability to you or any of your Representatives
resulting from the use of the Confidential Information by you or such
Representatives other than in connection with such documentation. The agreements
set forth in this Agreement may be modified or waived only by a separate writing
signed by the Company and you expressly so modifying or waiving such agreements.
-2-
You hereby agree to be responsible for any damage, loss, cost or
liability directly arising out of a breach by you or your Representatives of
this Agreement. You also acknowledge that money damages would be both
incalculable and an insufficient remedy for any breach of this Agreement by you
or your Representatives and that any such breach would cause the Company
irreparable harm. Accordingly, you also agree that in the event of any breach or
threatened breach of this Agreement, the Company, in addition to any other
remedies at law or in equity it may have, shall be entitled, without the
requirement of posting a bond or other security, to equitable relief, including
injunctive relief and specific performance.
It is understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege
hereunder.
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provisions of this
Agreement, which shall remain in full force and effect.
This Agreement and the rights and obligations of the parties set forth
herein shall be governed by the laws of the State of New York.
[Applicable to CP Conduit: The Company hereby agrees that it shall not
institute or join against any you any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding under any federal or
state bankruptcy or similar law, for one year and a day after the latest
maturing commercial paper note, medium term note or other debt security issued
by you is paid. The Company further agrees that any of your monetary obligations
arising under this letter are payable only to the extent you have excess funds
available for the payment thereof after repayment of your commercial paper
notes, liquidity loans and other senior debt, and otherwise shall not constitute
a "claim" (as defined in Section 101(5) of the Bankruptcy Code) against you. No
recourse shall be had for the payment of any amount owing hereunder or any other
obligation of, or claim against, you arising out of or based upon this letter,
against any of your stockholders, employees, officers, agents, directors or
incorporators or any affiliate thereof.]
If you are in agreement with the foregoing, please sign and return one
copy of this Agreement, which thereupon will constitute our agreement with
respect to the subject matter hereof.
Very truly yours,
FIRST CONSUMERS NATIONAL BANK
By: _________________________
Name:
Title:
-3-
Confirmed and agreed to as of
the date first above written:
[_____________________________]
By: __________________
Name:
Title:
-4-
EXHIBIT D
---------
FORM OF TRANSFER SUPPLEMENT
TRANSFER SUPPLEMENT, dated as of the date set forth in Item 1 of
Schedule I hereto, between the Seller Class C Purchaser set forth in Item 2 of
------------------------
Schedule I hereto (the "Seller Class C Purchaser"), and the Purchasing Class C
Purchaser set forth in Item 3 of Schedule I hereto (the "Purchasing Class C
------------------
Purchaser").
- ---------
W I T N E S S E T H:
WHEREAS, this Supplement is being executed and delivered in accordance
with subsection 8.1(e) of the Class C Note Purchase Agreement, dated as of March
6, 2001, among First Consumers Credit Card Master Note Trust, First Consumers
National Bank, the Class C Purchasers parties thereto and Deutsche Bank AG, New
York Branch, as Administrative Agent (as from time to time amended, supplemented
or otherwise modified in accordance with the terms thereof, the "Note Purchase
-------------
Agreement"; unless otherwise defined herein, terms defined in the Note Purchase
- ---------
Agreement are used herein as therein defined);
WHEREAS, the Purchasing Class C Purchaser (if it is not already a
Class C Purchaser party to the Note Purchase Agreement) wishes to become a Class
C Purchaser party to the Note Purchase Agreement and the Purchasing Class C
Purchaser wishes to acquire and assume from the Seller Class C Purchaser,
certain of the rights, obligations and commitments under the Note Purchase
Agreement; and
WHEREAS, the Seller Class C Purchaser wishes to sell and assign to the
Purchasing Class C Purchaser, certain of its rights and obligations under the
Note Purchase Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
(a) Upon receipt by the Administrative Agent of five counterparts of
this Supplement, to each of which is attached a fully completed Schedule I and
Schedule II, each of which has been executed by the Seller Class C Purchaser,
the Purchasing Class C Purchaser and the Administrative Agent, the
Administrative Agent will transmit to the Servicer, the Issuer, the Seller, the
Indenture Trustee, the Seller Class C Purchaser and the Purchasing Class C
Purchaser a Transfer Effective Notice, substantially in the form of Schedule III
to this Supplement (a "Transfer Effective Notice"). Such Transfer Effective
-------------------------
Notice shall be executed by the Administrative Agent and shall set forth, inter
-----
alia, the date on which the transfer effected by this Supplement shall become
- ----
effective (the "Transfer Effective Date"). From and after the Transfer Effective
-----------------------
Date the Purchasing Class C Purchaser shall be a Class C Purchaser party to the
Note Purchase Agreement for all purposes.
(b) At or before 12:00 Noon, local time of the Seller Class C
Purchaser, on the Transfer Effective Date, the Purchasing Class C Purchaser
shall pay to the Seller Class C Purchaser, in immediately available funds, an
amount equal to the purchase price, as agreed between the Seller Class C
Purchaser and such Purchasing Class C Purchaser (the "Purchase Price"), of the
--------------
portion set forth on Schedule II hereto being purchased by such Purchasing Class
C Purchaser of the outstanding Class C Note Principal Balance under the Class C
Note owned by the Seller Class C Purchaser (such Purchasing Class C Purchaser's
"Purchaser Percentage") and other amounts owing to the Seller Class C Purchaser
--------------------
under the Note Purchase Agreement or otherwise in respect of the Class C Notes.
Effective upon receipt by the Seller Class C Purchaser of the Purchase Price
from the Purchasing Class C Purchaser, the Seller Class C Purchaser hereby
irrevocably sells, assigns and transfers to the Purchasing Class C Purchaser,
without recourse, representation or warranty, and the Purchasing Class C
Purchaser hereby irrevocably purchases, takes and assumes from the Seller Class
C Purchaser, the Purchasing Class C Purchaser's Purchaser Percentage of (i) the
presently outstanding Class C Note Principal Balance under the Class C Notes
owned by the Seller Class C Purchaser and other amounts owing to the Seller
Class C Purchaser in respect of the Class C Notes, together with all
instruments, documents and collateral security pertaining thereto, and (ii) the
Purchasing Class C Purchaser's Purchaser Percentage of the Purchaser Percentage
of the Seller Class C Purchaser and the other rights and duties of the Seller
Class C Purchaser under the Note Purchase Agreement. This Supplement is intended
by the parties hereto to effect a purchase by the Purchasing Class C Purchaser
and sale by the Seller Class C Purchaser of interests in the Class C Notes, and
it is not to be construed as a loan or a commitment to make a loan by the
Purchasing Class C Purchaser to the Seller Class C Purchaser. The Seller Class C
Purchaser hereby confirms that the amount of the Class C Note Principal Balance
is $ and its Percentage Interest thereof is ___%, which equals $_______ as of
___________, 200_. Upon and after the Transfer Effective Date (until further
modified in accordance with the Note Purchase Agreement), the Purchaser
Percentage of the Seller Class C Purchaser and the Purchasing Class C Purchaser
shall be as set forth in Schedule II to this Supplement.
(c) The Seller Class C Purchaser has made arrangements with the
Purchasing Class C Purchaser with respect to (i) the portion, if any, to be
paid, and the date or dates for payment, by the Seller Class C Purchaser to the
Purchasing Class C Purchaser of any fees heretofore received by the Seller Class
C Purchaser pursuant to the Note Purchase Agreement prior to the Transfer
Effective Date and (ii) the portion, if any, to be paid, and the date or dates
for payment, by the Purchasing Class C Purchaser to the Seller Class C Purchaser
of fees or interest received by the Purchasing Class C Purchaser pursuant to the
Note Purchase Agreement or otherwise in respect of the Class C Notes from and
after the Transfer Effective Date.
(d) (i) All principal payments that would otherwise be payable from
and after the Transfer Effective Date to or for the account of the Seller Class
C Purchaser in respect of the Class C Notes shall, instead, be payable to or for
the account of the Seller Class C Purchaser and the Purchasing Class C
Purchaser, as the case may be, in accordance with their respective interests as
reflected in this Supplement.
-2-
(ii) All interest, fees and other amounts that would otherwise
accrue for the account of the Seller Class C Purchaser from and after the
Transfer Effective Date pursuant to the Note Purchase Agreement or in respect of
the Class C Notes shall, instead, accrue for the account of, and be payable to
or for the account of, the Seller Class C Purchaser and the Purchasing Class C
Purchaser, as the case may be, in accordance with their respective interests as
reflected in this Supplement. In the event that any amount of interest, fees or
other amounts accruing prior to the Transfer Effective Date was included in the
Purchase Price paid by the Purchasing Class C Purchaser, the Seller Class C
Purchaser and the Purchasing Class C Purchaser will make appropriate
arrangements for payment by the Seller Class C Purchaser to the Purchasing Class
C Purchaser of such amount upon receipt thereof from the Administrative Agent.
(e) Concurrently with the execution and delivery hereof, the
Purchasing Class C Purchaser will deliver to the Administrative Agent and the
Issuer an executed Investment Letter in the form of Exhibit A to the Note
Purchase Agreement and the forms, if any, required by subsection 2.4(c) of the
Note Purchase Agreement.
(f) Each of the parties to this Supplement agrees and acknowledges
that (i) at any time and from time to time upon the written request of any other
party, it will execute and deliver such further documents and do such further
acts and things as such other party may reasonably request in order to effect
the purposes of this Supplement, and (ii) the Administrative Agent shall apply
each payment made to it under the Note Purchase Agreement, whether in its
individual capacity or as Administrative Agent, in accordance with the
provisions of the Note Purchase Agreement, as appropriate.
(g) By executing and delivering this Supplement, the Seller Class C
Purchaser and the Purchasing Class C Purchaser confirm to and agree with each
other, the Administrative Agent and the Class C Purchasers as follows: (i) other
than the representation and warranty that it is the legal and beneficial owner
of the interest being assigned hereby free and clear of any adverse claim, the
Seller Class C Purchaser makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Note Purchase Agreement or the Related
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Note Purchase Agreement or any other instrument or
document furnished pursuant thereto; (ii) the Seller Class C Purchaser makes no
representation or warranty and assumes no responsibility with respect to the
Trust, the financial condition of the Receivables, the Accounts, First Consumers
Master Trust, the Collateral Certificate, the Issuer, FCNB or the Indenture
Trustee, or the performance or observance by the Issuer, FCNB or the Indenture
Trustee of any of their respective obligations under the Note Purchase Agreement
or any Related Document or any other instrument or document furnished pursuant
hereto; (iii) each Purchasing Class C Purchaser confirms that it has received a
copy of such documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Supplement; (iv) each
Purchasing Class C Purchaser will, independently and without reliance upon the
Administrative Agent, the Seller Class C Purchaser or any other Class C
Purchaser and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not
-3-
taking action under the Note Purchase Agreement or the Related Documents; (v)
the Purchasing Class C Purchaser appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under the Note Purchase Agreement and the Related Documents as are delegated to
the Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, all in accordance with Section 7 of the Note
Purchase Agreement; and (vi) each Purchasing Class C Purchaser agrees (for the
benefit of the Seller Class C Purchaser, the Administrative Agent, the Class C
Purchasers, the Indenture Trustee, the Servicer, the Seller and the Issuer) that
it will perform in accordance with their terms all of the obligations which by
the terms of the Note Purchase Agreement are required to be performed by it as a
Class C Purchaser.
(h) Schedule II hereto sets forth the revised Purchaser Percentage of
the Seller Class C Purchaser and the Purchaser Percentage of the Purchasing
Class C Purchaser, as applicable, and the initial Investing Office of the
Purchasing Class C Purchaser, as well as administrative information with respect
to the Purchasing Class C Purchaser.
(i) THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
be executed by their respective duly authorized officers on Schedule I hereto as
of the date set forth in Item 1 of Schedule I hereto.
-4-
SCHEDULE I TO
TRANSFER SUPPLEMENT
-------------------
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Re: Class C Note Purchase Agreement, dated as of March 6, 2001, among
First Consumers Credit Card Master Note Trust, First Consumers
National Bank, the Class C Purchasers parties thereto and
Deutsche Bank AG, New York Branch, as Administrative Agent
Item 1: Date of Transfer Supplement:
Item 2: Seller Class C Purchaser:
Item 3: Purchasing Class C Purchaser:
Item 4: Signatures of Parties to Agreement:
___________________________________
as Seller Class C Purchaser
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
as Purchasing Class C Purchaser
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
CONSENTED TO AND ACCEPTED BY:
-1-
[If applicable:]
DEUTSCHE BANK AG,
NEW YORK BRANCH, as Administrative Agent
By:________________________
Name:
Title:
By:________________________
Name:
Title:
-2-
SCHEDULE II TO
TRANSFER SUPPLEMENT
-------------------
LIST OF INVESTING OFFICES, ADDRESSES
FOR NOTICES, ASSIGNED INTERESTS AND
PURCHASE AND COMMITMENT PERCENTAGES
-----------------------------------
[Seller Class C Purchaser]
A. Type of Purchaser: CP Conduit: Yes/No
B. Purchaser Percentage:
Seller Class C Purchaser Purchaser Percentage
Prior to Sale: _____%
Purchaser Percentage Sold: _____%
Purchaser Percentage Retained: _____%
C. Class C Note Principal Balance:
------------------------------
Seller Class C Purchaser
Class C Note Principal Balance Prior to Sale: $________
Class C Note Principal Balance Sold: $________
Class C Note Principal Balance Retained: $________
[Purchasing Class C Purchaser]
----------------------------
A. Type of Purchaser: CP Conduit: Yes/No
------
B. Purchaser Percentage:
--------------------
Transferee Class C Purchaser Purchaser Percentage
After Sale: _____%
C. Class C Note Principal Balance:
------------------------------
Transferee Class C Purchaser
Class C Note Principal Balance After Sale: $________
Address for Notices:
- -------------------
Investing Office:
- ----------------
- 1 -
SCHEDULE III TO
TRANSFER SUPPLEMENT
-------------------
Form of
Transfer Effective Notice
-------------------------
To: [Name and address of Issuer, Seller,
Servicer, Indenture Trustee, Administrative
Agent, Seller Class C Purchaser and
Purchasing Class C Purchaser]
The undersigned, as Administrative Agent under the Class C Note
Purchase Agreement, dated as of March 6, 2001, among First Consumers Credit Card
Master Note Trust, First Consumers National Bank, the Class C Purchasers and
Deutsche Bank AG, New York Branch, as Administrative Agent, acknowledges receipt
of five executed counterparts of a completed Transfer Supplement. [Note: attach
copies of Schedules I and II from such Agreement.] Terms defined in such
Supplement are used herein as therein defined.
Pursuant to such Supplement, you are advised that the Transfer
Effective Date will be ____________, ____.
Very truly yours,
[NAME OF AGENT], as Administrative
Agent
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
-1-
Table of Contents
-----------------
Page
----
i