-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HBKVOu+nLk36Fe53FXVz3rydl5OlGWMhiKOJxi7JP6ahGjy5iUO+XqvkfJE6JKUQ dorpYis7LnQIJxuVeZmaJQ== 0000950131-02-000309.txt : 20020414 0000950131-02-000309.hdr.sgml : 20020414 ACCESSION NUMBER: 0000950131-02-000309 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 10 CONFORMED PERIOD OF REPORT: 20011231 ITEM INFORMATION: Acquisition or disposition of assets ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20020131 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIRST CONSUMERS NATIONAL BANK CENTRAL INDEX KEY: 0000888945 STANDARD INDUSTRIAL CLASSIFICATION: ASSET-BACKED SECURITIES [6189] IRS NUMBER: 930982044 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 033-89192-01 FILM NUMBER: 02524022 BUSINESS ADDRESS: STREET 1: 9300 SW GEMINI DRIVE CITY: BEAVERTON STATE: OR ZIP: 97008 BUSINESS PHONE: 5032936181 MAIL ADDRESS: STREET 1: 9300 S W GEMINI DRIVE CITY: BEAVERTON STATE: OR ZIP: 97008 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIRST CONSUMERS MASTER TRUST CENTRAL INDEX KEY: 0000893331 STANDARD INDUSTRIAL CLASSIFICATION: ASSET-BACKED SECURITIES [6189] IRS NUMBER: 363826636 STATE OF INCORPORATION: IL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-48860-01 FILM NUMBER: 02524023 BUSINESS ADDRESS: STREET 1: C/O BANKERS TRUST CO STREET 2: 4 ALBANY STREET 10TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10006 BUSINESS PHONE: 5035208264 MAIL ADDRESS: STREET 1: C/O BANKERS TRUST CO STREET 2: 4 ALBANY STREET 10TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10006 8-K 1 d8k.txt FORM 8-K ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K Current Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of Earliest Event Reported) December 31, 2001 ------------------------ First Consumers National Bank First Consumers Master Trust ________________________________________________________________________________ (Exact Name of Registrant as Specified in its Charter) Illinois - -------------------------------------------------------------------------------- (State or Other Jurisdiction of Incorporation) 333-48860 and 333-48860-01 93-098-2044 - -------------------------------- ---------------------------------------- (Commission File Number) (I.R.S. Employer Identification No.) 9300 S.W. Gemini Drive, Beaverton, OR 97008 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) (630) 986-8800 - -------------------------------------------------------------------------------- (Registrant's Telephone Number, Including Area Code) No Change - -------------------------------------------------------------------------------- (Former Name or Former Address, if Changed Since Last Report) ================================================================================ Item 2. Acquisition or Disposition of Assets. On December 31, 2001, Registrant converted the First Consumers Credit Card Master Note Trust into a two-step structure in order to continue to achieve sale treatment. The Registrant is filing final forms of the exhibits listed in Item 7(c) below relating to the Notes. Item 7. Financial Statements and Exhibits. (c) Exhibits. Exhibit No. Document Description ----- -------------------- (a) Not applicable (b) Not applicable (c) Exhibit 4.1 The amended and restated Master Indenture, dated as of December 31, 2001, between First Consumers Credit Card Master Note Trust and The Bank of New York Exhibit 4.2 The amended and restated Transfer and Servicing Agreement, dated as of December 31, 2001, among First Consumers Credit Corporation, First Consumers National Bank and First Consumers Credit Card Master Note Trust Exhibit 4.3 The amended and restated Trust Agreement, dated as of December 31, 2001, between First Consumers Credit Corporation and Bankers Trust Company Exhibit 4.4 Administration Agreement, dated as of December 31, 2001, between First Consumers Credit Card Master Note Trust and First Consumers National Bank Exhibit 4.5 The Receivables Purchase Agreement, dated as of December 31, 2001, between First Consumers National Bank and First Consumers Credit Corporation Exhibit 4.6 The amended and restated Pooling and Servicing Agreement, dated as of December 31, 2001, among First Consumers Credit Corporation, First Consumers National Bank and The Bank of New York Exhibit 4.7 The Assignment and Assumption Agreement, dated as of December 31, 2001, between First Consumers National Bank and First Consumers Credit Corporation Exhibit 4.8 The Seller Substitution Agreement, dated as of December 31, 2001, among First Consumers National Bank, First Consumers Credit Corporation, Spiegel Credit Corporation III, Spiegel, Inc. and Morgan Guaranty Trust Company of New York. Exhibit 4.9 The amended and restated Note Purchase Agreement, dated as of December 31, 2001, between First Consumers National Bank and Deutsche Banc Alex. Brown Inc. -2- SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. FIRST CONSUMERS NATIONAL BANK (Co-Registrant) Dated: December 31, 2001 By:/s/ John R. Steele ------------------ Name: John R. Steele Title: Treasurer and Director FIRST CONSUMERS MASTER TRUST (Co-Registrant) By: First Consumers National Bank, as originator of First Consumers Master Trust Dated: December 31, 2001 By:/s/ John R. Steele ------------------- Name: John R. Steele Title: Treasurer and Director -3- EX-4.1 3 dex41.txt AMENDED AND RESTATED MASTER INDENTURE 12/31/2001 Exhibit 4.1 ----------- MASTER INDENTURE between FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST Issuer, and THE BANK OF NEW YORK Indenture Trustee Dated as of March 1, 2001, amended and restated as of December 31, 2001 TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS ....................................................... 3 Section 1.1. Definitions ........................................ 3 Section 1.2. Other Definitional Provisions ...................... 3 ARTICLE II THE NOTES ......................................................... 4 Section 2.1. Form Generally ..................................... 4 Section 2.2. Denominations ...................................... 4 Section 2.3. Execution, Authentication and Delivery ............. 5 Section 2.4. Authenticating Agent ............................... 5 Section 2.5. Registration of and Limitations on Transfer and Exchange of Notes .................................. 6 Section 2.6. Mutilated, Destroyed, Lost or Stolen Notes ......... 8 Section 2.7. Persons Deemed Owners .............................. 9 Section 2.8. Appointment of Paying Agent ........................ 10 Section 2.9. Access to List of Noteholders' Names and] Addresses .......................................... 10 Section 2.10. Cancellation ....................................... 11 Section 2.11. [Reserved] ......................................... 11 Section 2.12. New Issuances ...................................... 11 Section 2.13. Book-Entry Notes ................................... 13 Section 2.14. Notices to Clearing Agency or Foreign Clearing Agency ............................................. 14 Section 2.15. Definitive Notes ................................... 14 Section 2.16. Global Note ........................................ 15 Section 2.17. Meetings of Noteholders ............................ 15 ARTICLE III REPRESENTATIONS AND COVENANTS OF ISSUER ........................... 15 Section 3.1. Payment of Principal and Interest .................. 15 Section 3.2. Maintenance of Office or Agency .................... 16 Section 3.3. Money for Note Payments to Be Held in Trust ........ 16 Section 3.4. Existence .......................................... 17 Section 3.5. Protection of Collateral ........................... 17 Section 3.6. Opinions as to Collateral .......................... 18 Section 3.7. Performance of Obligations; Servicing of Receivables ........................................ 19 Section 3.8. Negative Covenants ................................. 21 Section 3.9. Statements as to Compliance ........................ 21 Section 3.10. Issuer May Consolidate, Etc., Only on Certain Terms .............................................. 22
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TABLE OF CONTENTS (Continued) Page ---- Section 3.11. Successor Substituted .............................. 24 Section 3.12. No Other Business .................................. 24 Section 3.13. [Reserved] ......................................... 24 Section 3.14. Servicer's Obligations ............................. 24 Section 3.15. Investments ........................................ 24 Section 3.16. Capital Expenditures ............................... 24 Section 3.17. Removal of Administrator ........................... 24 Section 3.18. Restricted Payments ................................ 25 Section 3.19. Notice of Events of Default ........................ 25 Section 3.20. Further Instruments and Acts ....................... 25 ARTICLE IV SATISFACTION AND DISCHARGE ........................................ 25 Section 4.1. Satisfaction and Discharge of this Indenture ....... 25 Section 4.2. Application of Issuer Money ........................ 27 ARTICLE V PAY OUT EVENTS, DEFAULTS AND REMEDIES ............................. 27 Section 5.1. Pay Out Events ..................................... 27 Section 5.2. Events of Default .................................. 27 Section 5.3. Acceleration of Maturity; Rescission and Annulment .......................................... 29 Section 5.4. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee ................... 30 Section 5.6. Optional Preservation of the Collateral ............ 34 Section 5.7. Limitation on Suits ................................ 34 Section 5.8. Unconditional Rights of Noteholders to Receive Principal and Interest ............................. 35 Section 5.10. Rights and Remedies Cumulative ..................... 35 Section 5.11. Delay or Omission Not Waiver ....................... 35 Section 5.12. Rights of Noteholders to Direct Indenture Trustee ............................................ 36 Section 5.13. Waiver of Past Defaults ............................ 36 Section 5.14. Undertaking for Costs .............................. 37 Section 5.16. Sale of Receivables ................................ 37 Section 5.17. Action on Notes .................................... 38 ARTICLE VI THE INDENTURE TRUSTEE ............................................. 38 Section 6.1. Duties of the Indenture Trustee .................... 38 Section 6.2. Notice of Pay Out Event or Event of Default ........ 40 Section 6.3. Rights of Indenture Trustee ........................ 41 Section 6.4. Not Responsible for Recitals or Issuance of
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TABLE OF CONTENTS (Continued) Page ---- Notes ............................................. 42 Section 6.5. Restrictions on Holding Notes ..................... 42 Section 6.6. Money Held in Trust ............................... 42 Section 6.7. Compensation, Reimbursement and Indemnification ................................... 42 Section 6.8. Replacement of Indenture Trustee .................. 43 Section 6.9. Successor Indenture Trustee by Merger ............. 45 Section 6.10. Appointment of Co-Indenture Trustee or Separate Indenture Trustee ........................ 45 Section 6.11. Eligibility; Disqualification ..................... 46 Section 6.12. Preferential Collection of Claims Against ......... 47 Section 6.13. Representations and Covenants of the Indenture Trustee ........................................... 47 Section 6.14. Custody of the Collateral ......................... 47 ARTICLE VII NOTEHOLDERS' LIST AND REPORTS BY INDENTURE TRUSTEE AND ISSUER .... 48 Section 7.1. Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders .......................... 48 Section 7.2. Preservation of Information; Communications to Noteholders ....................................... 48 Section 7.3. Reports by Issuer ................................. 48 Section 7.4. Reports by Indenture Trustee ...................... 49 ARTICLE VIII ALLOCATION AND APPLICATION OF COLLECTIONS ........................ 50 Section 8.1. Collection of Money ............................... 50 Section 8.2. Rights of Noteholders ............................. 50 Section 8.3. Establishment of Collection Account and Excess Funding Account ................................... 50 Section 8.4. Collections and Allocations ....................... 53 Section 8.5. Shared Principal Collections ...................... 56 Section 8.6. Excess Finance Charge Collections ................. 56 Section 8.7. Allocation of Collateral to Series or Groups ...... 57 Section 8.8. Release of Collateral; Eligible Loan Documents .... 57 Section 8.9. Opinion of Counsel ................................ 58 ARTICLE IX DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS ......................... 58 ARTICLE X SUPPLEMENTAL INDENTURES .......................................... 59 Section 10.1. Supplemental Indentures Without Consent of
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TABLE OF CONTENTSS (Continued) Page ---- Noteholders ....................................... 59 Section 10.2. Supplemental Indentures with Consent of Noteholders ....................................... 61 Section 10.3. Execution of Supplemental Indentures .............. 62 Section 10.4. Effect of Supplemental Indenture .................. 63 Section 10.5. Conformity With Trust Indenture Act ............... 63 Section 10.6. Reference in Notes to Supplemental Indentures ..... 63 ARTICLE XI TERMINATION ....................................................... 63 Section 11.1. Termination of Issuer ............................. 63 Section 11.2. Final Distribution ................................ 63 Section 11.3. Issuer's Termination Rights ....................... 64 ARTICLE XII MISCELLANEOUS ..................................................... 65 Section 12.1. Compliance Certificates and Opinions etc .......... 65 Section 12.2. Form of Documents Delivered to Indenture Trustee ........................................... 66 Section 12.3. Acts of Noteholders ............................... 67 Section 12.4. Notices, Etc. to Indenture Trustee and Issuer ..... 67 Section 12.5. Notices to Noteholders; Waiver .................... 68 Section 12.6. Alternate Payment and Notice Provisions ........... 68 Section 12.7. Conflict with Trust Indenture Act ................. 69 Section 12.8. Effect of Headings and Table of Contents .......... 69 Section 12.9. Successors and Assigns ............................ 69 Section 12.10. Separability ...................................... 69 Section 12.11. Benefits of Indenture ............................. 69 Section 12.12. Legal Holidays .................................... 69 Section 12.13. GOVERNING LAW ..................................... 69 Section 12.14. Counterparts ...................................... 70 Section 12.15. Issuer Obligation ................................. 70 Section 12.16. No Petition ....................................... 70
iv RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND INDENTURE PROVISIONS/1/ Trust Indenture Act Section Indenture Section --------------- ----------------- 310(a)(1) ......................................... 6.11 (a)(2) ......................................... 6.11 (a)(3) ......................................... 6.10 (a)(4) ......................................... Not Applicable (a)(5) ......................................... 6.11 (b) ............................................ 6.8, 6.11 (c) ............................................ Not Applicable 311(a) ............................................ 6.12 (b) ............................................ 6.12 (c) ............................................ Not Applicable 312(a) ............................................ 7.1, 7.2(a) (b) ............................................ 7.2(b) (c) ............................................ 7.2(c) 313(a) ............................................ 7.4 (b) ............................................ 7.4 (c) ............................................ 7.3, 7.4 (d) ............................................ 7.4 314(a) ............................................ 3.9, 7.3(a) (b) ............................................ 3.6 (c)(1) ......................................... 8.9, 12.1(a) (c)(2) ......................................... 8.9, 12.1(a) (c)(3) ......................................... 8.9, 12.1(a) (d)(1) ......................................... 8.9, 12.1(b) (d)(2) ......................................... Not Applicable (d)(3) ......................................... Not Applicable (e) ............................................ 12.1(a) 315(a) ............................................ 6.1(b) (b) ............................................ 6.2 (c) ............................................ 6.1(c) (d) ............................................ 6.1(d) (d)(1) ......................................... 6.1(d) (d)(2) ......................................... 6.1(d) (d)(3) ......................................... 6.1(d) (e) ............................................ 5.14 316(a)(1)(A) ...................................... 5.12 316(a)(1)(B) ...................................... 5.13 316(a)(2) ......................................... Not Applicable 316(b) ............................................ 5.8 317(a)(1) ......................................... 5.4 317(a)(2) ......................................... 5.4(d) ____________________________ /1/ This reconciliation and tie shall not, for any purpose, be deemed to be part of the within indenture. 317(b) ............................................ 5.4(a) 317(a) ............................................ 12.7 MASTER INDENTURE, dated as of March 1, 2001, and amended and restated as of December 31, 2001 (the "Indenture"), between First Consumers Credit Card Master --------- Note Trust, a trust organized under the laws of the State of Illinois (the "Issuer"), and The Bank of New York, a New York banking corporation, as ------ indenture trustee (the "Indenture Trustee"). This Indenture may be supplemented ----------------- at any time and from time to time by an indenture supplement in accordance with Article X (an "Indenture Supplement," and together with this Indenture and any - --------- -------------------- amendments, the "Agreement"). If a conflict exists between the terms and --------- provisions of this Indenture and any Indenture Supplement, the terms and provisions of the Indenture Supplement shall be controlling with respect to the related Series. PRELIMINARY STATEMENT The Issuer has duly authorized the execution and delivery of this Indenture to provide for an issue of its asset backed notes as provided in this Indenture. All covenants and agreements made by the Issuer herein are for the benefit and security of the Noteholders. The Issuer is entering into this Indenture, and the Indenture Trustee is accepting the trusts created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged. Simultaneously with the amendment and restatement of this Indenture, the Issuer is amending and restating a Transfer and Servicing Agreement with First Consumers National Bank, a national banking association, as Servicer (which amendment and restatement will, among other things, substitute First Consumers Credit Corporation, a Delaware corporation for First Consumers National Bank as Seller under that Agreement), pursuant to which (a) the Seller will convey to the Issuer all of its right, title and interest in, to and under (i) the Collateral Certificate, which the Seller will have received from First Consumers Master Trust, and (ii) on and after the FCMT Termination Date, the Receivables which the Seller will have received from First Consumers National Bank pursuant to the Receivables Purchase Agreement, dated as of the date hereof, and (b) the Servicer will agree to service the Receivables and make collections thereon on behalf of the Noteholders. Under the Receivables Purchase Agreement and the Transfer and Servicing Agreement, Receivables arising in the Accounts from time to time will be conveyed thereunder to the Issuer. GRANTING CLAUSE The Issuer hereby Grants to the Indenture Trustee, for the benefit of the Holders of the Notes and the Enhancement Providers, all of the Issuer's right, title and interest, whether now owned or hereafter acquired, in, to and under (a) the Collateral Certificate, (b) the Receivables, (c) Recoveries related to and all money, instruments, investment property and other property distributed or distributable in respect of (together with all earnings, dividends, distributions, income, issues, and profits relating to) the Receivables pursuant to the terms of the Transfer and Servicing Agreement, this Indenture and any Indenture Supplement; (d) the rights to receive certain amounts paid or payable as Interchange (if and to the extent provided for in any Indenture Supplement), (e) all rights to security for any Receivables (including rights to bank accounts or certificates of deposit pledged as collateral), (f) all Permitted Investments and all money, investment property, instruments and other property on deposit from time to time in, credited to or related to the Collection Account, the Series Accounts and the Excess Funding Account (including any subaccounts of any such account), and in all interest, dividends, earnings, income and other distributions from time to time received, receivable or otherwise distributed or distributable thereto or in respect thereof (including any accrued discount realized on liquidation of any investment purchased at a discount); (g) all rights, remedies, powers, privileges and claims of the Issuer under or with respect to any Series Enhancement and the Transfer and Servicing Agreement (whether arising pursuant to the terms of the Transfer and Servicing Agreement or otherwise available to the Issuer at law or in equity), including the rights of the Issuer to enforce the Transfer and Servicing Agreement, and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Transfer and Servicing Agreement to the same extent as the Issuer could but for the assignment and security interest granted to the Indenture Trustee for the benefit of the Noteholders; (h) all proceeds of any Credit Insurance policies relating to the Receivables; (i) all proceeds of any derivative contracts between the Issuer or FCNB and a counterparty, as described in any Indenture Supplement; (j) all money, accounts, general intangibles, chattel paper, instruments, documents, goods, investment property, deposit accounts, certificates of deposit, letters of credit, and advices of credit consisting of, arising from or related to the foregoing; (k) all other property of the Issuer; (l) all present and future claims, demands, causes and choses in action in respect of any or all of the foregoing and all payments on or under and all proceeds of every kind and nature whatsoever in respect of any or all of the foregoing, including all proceeds, products, rents, receipts or profits of the conversion, voluntary or involuntary, into cash or other property, all cash and non-cash proceeds, and other property consisting of, arising from or relating to all or any part of any of the foregoing; and (m) any proceeds of the foregoing (collectively, the "Collateral"). ---------- LIMITED RECOURSE The obligation of the Issuer to make payments of principal, interest and other amounts in respect of the Notes is limited by recourse only to the Collateral. 2 ARTICLE I DEFINITIONS Section 1.1. Definitions. ----------- Capitalized terms used herein are defined in Annex A. ------- Section 1.2. Other Definitional Provisions. ----------------------------- (a) All terms defined directly or by reference in this Indenture shall have the defined meanings when used in any certificate or other document delivered pursuant hereto unless otherwise defined therein. For purposes of this Indenture and all such certificates and other documents, unless the context otherwise requires: (i) accounting terms not otherwise defined in this Indenture, and accounting terms partly defined in this Indenture to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles; (ii) terms defined in Article 9 of the UCC as in effect in the applicable jurisdiction and not otherwise defined in this Indenture are used as defined in that Article; (iii) any reference to each Rating Agency shall only apply to any specific rating agency if such rating agency is then rating any outstanding Series; (iv) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (v) the words "hereof," "herein" and "hereunder" and words of similar import refer to this Indenture (or the certificate or other document in which they are used) as a whole and not to any particular provision of this Indenture (or such certificate or document); (vi) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to this Indenture (or the certificate or other document in which the reference is made), and references to any paragraph, Section, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (vii) the term "including" means "including without limitation"; (viii) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (ix) references to any Person include that Person's successors and assigns; and (x) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof. (b) Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "indenture securities" means the Notes -------------------- "indenture security holder" means a Noteholder ------------------------- 3 "indenture to be qualified" means this Indenture ------------------------- "indenture trustee" or "institutional trustee" means the Indenture Trustee ----------------- --------------------- "obligor" on the indenture securities means the Issuer and any other ------- obligor on the indenture securities All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule have the meanings assigned to them by such definitions. ARTICLE II THE NOTES Section 2.1. Form Generally. Any Series or Class of Notes, together with -------------- the Indenture Trustee's certificate of authentication related thereto, may be issued in bearer form (the "Bearer Notes") with attached interest coupons and a ------------ special coupon (collectively, the "Coupons") or in fully registered form (the ------- "Registered Notes") and shall be in substantially the form of an exhibit to the ---------------- related Indenture Supplement with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or such Indenture Supplement, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon, as may, consistently herewith, be determined by the officers executing such Notes, as evidenced by their execution of such Notes. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note. The terms of any Notes set forth in an exhibit to the related Indenture Supplement are part of the terms of this Indenture, as applicable. The Definitive Notes shall be typewritten, printed, lithographed or engraved or produced by any combination of these methods, all as determined by the officers executing such Notes, as evidenced by their execution of such Notes. Each Note will be dated the Closing Date and each Definitive Note will be dated as of the date of its authentication. Section 2.2. Denominations. Except as otherwise specified in the related ------------- Indenture Supplement and the Notes, each class of Notes of each Series shall be issued in fully registered form in minimum amounts of $1,000 and in integral multiples of $1,000 in excess thereof (except that one Note of each Class may be issued in a different amount, so long as such amount exceeds the applicable minimum denomination for such Class), and shall be issued upon initial issuance as one or more Notes in an aggregate 4 original principal amount equal to the applicable Collateral Amount for such Class or Series. Section 1.1. Section 2.3. Execution, Authentication and Delivery. Each Note shall be -------------------------------------- executed by manual or facsimile signature on behalf of the Issuer by an Authorized Officer. Notes bearing the manual or facsimile signature of an individual who was, at the time when such signature was affixed, authorized to sign on behalf of the Issuer shall not be rendered invalid, notwithstanding the fact that such individual ceased to be so authorized prior to the authentication and delivery of such Notes or does not hold such office at the date of issuance of such Notes. At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer to the Indenture Trustee for authentication and delivery, and the Indenture Trustee shall authenticate at the written direction of the Issuer and deliver such Notes as provided in this Indenture or the related Indenture Supplement and not otherwise. No Note shall be entitled to any benefit under this Indenture or the applicable Indenture Supplement or be valid or obligatory for any purpose, unless there appears on such Note a certificate of authentication substantially in the form provided for herein or in the related Indenture Supplement executed by or on behalf of the Indenture Trustee by the manual signature of a duly authorized signatory, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. Section 2.4. Authenticating Agent. -------------------- (a) The Indenture Trustee, at the expense of the Servicer, may appoint one or more authenticating agents with respect to the Notes which shall be authorized to act on behalf of the Indenture Trustee in authenticating the Notes in connection with the issuance, delivery, registration of transfer, exchange or repayment of the Notes. Whenever reference is made in this Indenture to the authentication of Notes by the Indenture Trustee or the Indenture Trustee's certificate of authentication, such reference shall be deemed to include authentication on behalf of the Indenture Trustee by an authenticating agent and a certificate of authentication executed on behalf of the Indenture Trustee by an authenticating agent. Each authenticating agent must be acceptable to the Issuer and the Servicer. (b) Any institution succeeding to the corporate agency business of an authenticating agent shall continue to be an authenticating agent without the execution 5 or filing of any power or any further act on the part of the Indenture Trustee or such authenticating agent. (c) An authenticating agent may at any time resign by giving written notice of resignation to the Indenture Trustee, the Issuer and the Servicer. The Indenture Trustee may at any time terminate the agency of an authenticating agent by giving notice of termination to such authenticating agent and to the Issuer and the Servicer. Upon receiving such a notice of resignation or upon such a termination, or in case at any time an authenticating agent shall cease to be acceptable to the Indenture Trustee or the Issuer and the Servicer, the Indenture Trustee may promptly appoint a successor authenticating agent. Any successor authenticating agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an authenticating agent. No successor authenticating agent shall be appointed unless acceptable to the Issuer and the Servicer. (d) The Issuer agrees to pay to each authenticating agent from time to time reasonable compensation for its services under this Section 2.4. ----------- (e) The provisions of Sections 6.1 and 6.4 shall be applicable to any ------------ --- authenticating agent. (f) Pursuant to an appointment made under this Section 2.4, the Notes may ----------- have endorsed thereon, in lieu of or in addition to the Indenture Trustee's certificate of authentication, an alternative certificate of authentication in substantially the following form: "This is one of the Notes described in the within-mentioned Agreement. ____________________________ ____________________________ as Authenticating Agent for the Indenture Trustee By: __________________________ "Authorized Signatory" 6 Section 2.5. Registration of and Limitations on Transfer and Exchange of ----------------------------------------------------------- Notes. The Issuer shall cause to be kept a register (the "Note Register") in - ----- ------------- which the Issuer shall provide for the registration of Notes and the registration of transfers of Notes. The Indenture Trustee initially shall be the transfer agent and registrar (in such capacity, the "Transfer Agent and ------------------ Registrar") for the purpose of registering Notes and transfers of Notes as - --------- herein provided. Upon any resignation of any Transfer Agent and Registrar, the Issuer shall promptly appoint a successor or, if it elects not to make such an appointment, assume the duties of Transfer Agent and Registrar. If a Person other than the Indenture Trustee is appointed by the Issuer as Transfer Agent and Registrar, the Issuer will give the Indenture Trustee prompt written notice of the appointment of a Transfer Agent and Registrar and of the location, and any change in the location, of the Transfer Agent and Registrar and Note Register. The Indenture Trustee shall have the right to inspect the Note Register at all reasonable times and to obtain copies thereof, and the Indenture Trustee shall have the right to conclusively rely upon a certificate executed on behalf of the Transfer Agent and Registrar by an officer thereof as to the names and addresses of the Noteholders and the principal amounts and numbers of such Notes. Upon surrender for registration of transfer of any Note at the office or agency of the Transfer Agent and Registrar, to be maintained as provided in Section 3.2, if the requirements of Section 8-401 of the UCC as in effect in the - ----------- applicable jurisdiction are met as certified by the Administrator to the Indenture Trustee, the Issuer shall execute, and upon receipt of such surrendered Note the Indenture Trustee shall authenticate and deliver to the Noteholder, in the name of the designated transferee or transferees, one or more new Notes (of the same Series and Class) in any authorized denominations of like aggregate principal amount. At the option of a Noteholder, Notes may be exchanged for other Notes (of the same Series and Class) in any authorized denominations and of like aggregate principal amount, upon surrender of such Notes to be exchanged at the office or agency of the Transfer Agent and Registrar. Whenever any Notes are so surrendered for exchange, if the requirements of Section 8-401 of the UCC as in effect in the applicable jurisdiction are met as certified by the Administrator to the Indenture Trustee, the Issuer shall execute, and upon receipt of such surrendered Note the Indenture Trustee shall authenticate and deliver to the Noteholder, the Notes which the Noteholder making the exchange is entitled to receive. All Notes issued upon any registration of transfer or exchange of Notes shall evidence the same obligations, evidence the same debt, and be entitled to the same rights and privileges under this Indenture, as the Notes surrendered upon such registration of transfer or exchange. 7 Every Note presented or surrendered for registration of transfer or exchange shall be duly endorsed by, or be accompanied by a written instrument of transfer in a form satisfactory to the Indenture Trustee duly executed by, the Noteholder thereof or its attorney-in-fact duly authorized in writing, and by such other documents as the Indenture Trustee may reasonably require. Any Note held by the Seller at any time after the date of its initial issuance may be transferred or exchanged only upon the delivery to the Owner Trustee and the Indenture Trustee of a Tax Opinion dated as of the date of such transfer or exchange, as the case may be, with respect to such transfer or exchange. The registration of transfer of any Note shall be subject to the additional requirements, if any, set forth in the related Indenture Supplement. No service charge shall be made for any registration of transfer or exchange of Notes, but the Issuer and the Transfer Agent and Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of such Notes. All Notes surrendered for registration of transfer and exchange shall be canceled by the Issuer and delivered to the Indenture Trustee for subsequent destruction without liability on the part of either. The Indenture Trustee shall destroy the Global Note upon its exchange in full for Definitive Notes and shall deliver a certificate of destruction to the Seller. Such certificate shall also state that a certificate or certificates of each Foreign Clearing Agency referred to in the applicable Indenture Supplement was received with respect to each portion of the Global Note exchanged for Definitive Notes. The preceding provisions of this Section 2.5 notwithstanding, the Issuer ----------- shall not be required to make, and Transfer Agent and Registrar need not register, transfers or exchanges of Notes for a period of twenty (20) days preceding the due date for any payment with respect to the Note. If and so long as any Series of Notes are listed on the Luxembourg Stock Exchange and such exchange shall so require, the Issuer shall appoint a co-transfer agent and co-registrar in Luxembourg or another European city. Any reference in this Indenture to the Transfer Agent and Registrar shall include any co-transfer agent and co-registrar unless the context otherwise requires. The Indenture Trustee will enter into any appropriate agency agreement with any co-transfer agent and co-registrar not a party to this Indenture, which will implement the provisions of this Indenture that relate to such agent. 8 Section 2.6. Mutilated, Destroyed, Lost or Stolen Notes. If (a) any ------------------------------------------ mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, and (b) in case of destruction, loss, or theft there is delivered to the Indenture Trustee such security or indemnity as may be required by it to hold the Issuer, the Noteholders and the Indenture Trustee harmless, then, in the absence of notice to the Issuer, the Transfer Agent and Registrar or the Indenture Trustee that such Note has been acquired by a protected purchaser (as defined in Section 8-303 of the UCC as in effect in the applicable jurisdiction), the Issuer shall execute, and the Indenture Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement Note of like tenor (including the same date of issuance) and principal amount, bearing a number not contemporaneously outstanding; provided, however, that if any such mutilated, -------- ------- destroyed, lost or stolen Note shall have become or within seven (7) days shall be due and payable, or shall have been selected or called for redemption, instead of issuing a replacement Note, the Issuer may pay such Note without surrender thereof, except that any mutilated Note shall be surrendered. If, after the delivery of such replacement Note or payment of a destroyed, lost or stolen Note pursuant to the proviso to the preceding sentence, a protected purchaser (as defined in Section 8-303 of the UCC as in effect in the applicable jurisdiction) of the original Note in lieu of which such replacement Note was issued presents for payment such original Note, the Issuer and the Indenture Trustee shall be entitled to recover such replacement Note (or such payment) from the Person to whom it was delivered or any Person taking such replacement Note from such Person to whom such replacement Note was delivered or any assignee of such Person, except a protected purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the Indenture Trustee in connection therewith. Upon the issuance of any replacement Note under this Section 2.6, the ----------- Issuer may require the payment by the Holder of such Note of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Indenture Trustee or the Transfer Agent and Registrar) connected therewith. Every replacement Note issued pursuant to this Section 2.6 in replacement ----------- of any mutilated, destroyed, lost or stolen Note shall constitute complete and indefeasible evidence of an obligation of the Trust, as if originally issued, whether or not the mutilated, destroyed, lost or stolen Note shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder. The provisions of this Section 2.6 are exclusive and shall preclude (to the ----------- extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes. 9 Section 2.7. Persons Deemed Owners. Prior to due presentment for --------------------- registration of transfer of any Note, the Issuer, the Seller, the Indenture Trustee and any agent of the Issuer, the Seller or the Indenture Trustee shall treat the Person in whose name any Note is registered as the owner of such Note for the purpose of receiving distributions pursuant to the terms of the applicable Indenture Supplement and for all other purposes whatsoever, whether or not such Note is overdue, and neither the Issuer, the Seller, the Indenture Trustee nor any agent of the Issuer, the Seller or the Indenture Trustee shall be affected by any notice to the contrary. Section 2.8. Appointment of Paying Agent. --------------------------- (a) The Issuer reserves the right at any time to vary or terminate the appointment of a Paying Agent for the Notes, and to appoint additional or other Paying Agents, provided that it will at all times maintain the Indenture Trustee as a Paying Agent. If and so long as any Notes are listed on the Luxembourg Stock Exchange and such exchange shall so require, the Indenture Trustee will appoint a co-paying agent in Luxembourg or another European city. The Indenture Trustee will enter into any appropriate agency agreement with any co-paying agent not a party to this Indenture, which will implement the provisions of this Indenture that relate to such agent. Notice of all changes in the identity or specified office of a Paying Agent will be delivered promptly to the Noteholders by the Indenture Trustee. (b) The Indenture Trustee shall cause each Paying Agent (other than itself) to execute and deliver to the Indenture Trustee an instrument in which such Paying Agent shall agree with the Indenture Trustee that such Paying Agent will hold all sums, if any, held by it for payment to the Noteholders in trust for the benefit of the Noteholders entitled thereto until such sums shall be paid to such Noteholders and shall agree, and if the Indenture Trustee is the Paying Agent it hereby agrees, that it shall comply with all requirements of the Code regarding the withholding by the Indenture Trustee of payments in respect of federal income taxes due from the Note Owners. Section 2.9. Access to List of Noteholders' Names and Addresses. -------------------------------------------------- (a) The Issuer will furnish or cause to be furnished to the Indenture Trustee, the Servicer or the Paying Agent, within five (5) Business Days after receipt by the Issuer of a written request therefor from the Indenture Trustee, the Servicer or the Paying Agent, respectively, a list of the names and addresses of the Noteholders. Unless otherwise provided in the related Indenture Supplement, the Holders of not less than 10% of the principal balance of the Outstanding Notes of any Series (the "Applicants") may apply in writing to the ---------- Indenture Trustee, and if such application states that the Applicants 10 desire to communicate with other Noteholders of any Series with respect to their rights under this Indenture or under the Notes and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Indenture Trustee, after having been adequately indemnified by such Applicants for its costs and expenses, shall afford or shall cause the Transfer Agent and Registrar to afford such Applicants access during normal business hours to the most recent list of Noteholders held by the Indenture Trustee and shall give the Servicer notice that such request has been made, within five (5) Business Days after the receipt of such application. Such list shall be as of a date no more than forty-five (45) days prior to the date of receipt of such Applicants' request. (b) Every Noteholder, by receiving and holding a Note, agrees that none of the Issuer, the Indenture Trustee, the Transfer Agent and Registrar and the Servicer or any of their respective agents and employees shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Noteholders hereunder, regardless of the sources from which such information was derived. Section 2.10. Cancellation. All Notes surrendered for payment, registration ------------ of transfer, exchange or redemption shall, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly canceled by it. The Issuer may at any time deliver to the Indenture Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Issuer may have acquired in any lawful manner whatsoever, and all Notes so delivered shall be promptly canceled by the Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes canceled as provided in this Section 2.10, except as expressly permitted by this ------------ Indenture. All canceled Notes held by the Indenture Trustee shall be destroyed unless the Issuer shall direct by a timely order that they be returned to it. Section 2.11. [Reserved] ---------- Section 2.12. New Issuances. ------------- (a) Pursuant to one or more Indenture Supplements, the Seller may from time to time direct the Owner Trustee, on behalf of the Issuer, to issue one or more new Series of Notes (a "New Issuance"). The Notes of all outstanding Series ------------ shall be equally and ratably entitled as provided herein to the benefits of this Indenture without preference, priority or distinction, all in accordance with the terms and provisions of this Indenture and the applicable Indenture Supplement except, with respect to any Series or Class, as provided in the related Indenture Supplement. Interest on and principal of the Notes of each outstanding Series shall be paid as specified in the Indenture Supplement relating to such outstanding Series. 11 (b) On or before the Closing Date relating to any new Series of Notes, the parties hereto will execute and deliver an Indenture Supplement which will specify the Principal Terms of such Series. The terms of such Indenture Supplement may modify or amend the terms of this Indenture solely as applied to such new Series. The obligation of the Owner Trustee to execute, on behalf of the Issuer, the Notes of any Series and of the Indenture Trustee to authenticate such Notes (other than any Series issued pursuant to an Indenture Supplement dated as of the date hereof) and to execute and deliver the related Indenture Supplement is subject to the satisfaction of the following conditions: (i) on or before the fifth Business Day immediately preceding the Closing Date the Seller shall have given the Owner Trustee, the Indenture Trustee, the Servicer and each Rating Agency notice (unless such notice requirement is otherwise waived) of such issuance and the Closing Date; (ii) the Seller shall have delivered to the Owner Trustee and the Indenture Trustee any related Indenture Supplement, in form satisfactory to the Owner Trustee and the Indenture Trustee, executed by each party hereto (other than the Indenture Trustee); (iii) the Seller shall have delivered to the Owner Trustee and the Indenture Trustee any related Enhancement Agreement executed by the Seller and the Series Enhancer; (iv) the Rating Agency Condition shall have been satisfied with respect to such issuance; (v) such issuance will not result in any Adverse Effect and the Seller shall have delivered to the Owner Trustee and the Indenture Trustee an Officer's Certificate, dated the Closing Date to the effect that the Seller reasonably believes that such issuance will not, based on the facts known to such officer at the time of such certification, have an Adverse Effect; (vi) the Seller shall have delivered to the Owner Trustee and the Indenture Trustee (with a copy to each Rating Agency) (A) an Opinion of Counsel, dated the Closing Date with respect to such issuance, to the effect that, except as otherwise stated in the related Indenture Supplement, the Notes of the new Series will be characterized as debt for federal income tax purposes and (B) a Tax Opinion, dated the Closing Date with respect to such issuance; and (vii) the Aggregate Principal Balance shall not be less than the Minimum Aggregate Principal Balance as of the Closing Date and after giving effect to such issuance. 12 (c) Upon satisfaction of the above conditions, pursuant to Section 2.3, the ----------- Owner Trustee, on behalf of the Issuer, shall execute and the Indenture Trustee shall upon written direction of the Issuer authenticate and deliver the Notes of such Series as provided in this Indenture and the applicable Indenture Supplement. (d) The Issuer may direct the Indenture Trustee in writing to deposit the net proceeds from any New Issuance in the Excess Funding Account. The Issuer may also specify that on any Transfer Date the proceeds from the sale of any new Series may be withdrawn from the Excess Funding Account and treated as Shared Principal Collections. Section 2.13. Book-Entry Notes. Unless otherwise provided in any related ---------------- Indenture Supplement, the Notes, upon original issuance, shall be issued in the form of typewritten or printed Notes representing the Book-Entry Notes to be delivered to the depository specified in such Indenture Supplement which shall be the Clearing Agency or Foreign Clearing Agency, by or on behalf of such Series. The Notes of each Series shall, unless otherwise provided in the related Indenture Supplement, initially be registered in the Note Register in the name of the nominee of the Clearing Agency or Foreign Clearing Agency for such Book-Entry Notes and shall be delivered to the Indenture Trustee or, pursuant to such Clearing Agency's or Foreign Clearing Agency's instructions held by the Indenture Trustee's agent as custodian for the Clearing Agency or Foreign Clearing Agency. Unless and until Definitive Notes are issued under the limited circumstances described in Section 2.15, no Note Owner shall be entitled to ------------ receive a Definitive Note representing such Note Owner's interest in such Note. Unless and until Definitive Notes have been issued to the Note Owners pursuant to Section 2.15: ------------ (a) the provisions of this Section 2.13 shall be in full force and effect ------------ with respect to each such Series; (b) the Indenture Trustee shall be entitled to deal with the Clearing Agency or Foreign Clearing Agency and the Clearing Agency Participants for all purposes of this Indenture (including the payment of principal of and interest on the Notes of each such Series) as the authorized representatives of the Note Owners; (c) to the extent that the provisions of this Section 2.13 conflict with ------------ any other provisions of this Indenture, the provisions of this Section 2.13 ------------ shall control with respect to each such Series; (d) the rights of Note Owners of each such Series shall be exercised only through the Clearing Agency or Foreign Clearing Agency and the applicable Clearing 13 Agency Participants and shall be limited to those established by law and agreements between such Note Owners and the Clearing Agency or Foreign Clearing Agency and/or the Clearing Agency Participants. Pursuant to the depository agreement applicable to a Series, unless and until Definitive Notes of such Series are issued pursuant to Section 2.15, the initial Clearing Agency shall ------------ make book-entry transfers among the Clearing Agency Participants and receive and transmit distributions of principal and interest on the Notes to such Clearing Agency Participants; and (e) whenever this Indenture requires or permits actions to be taken based upon instructions or directions of the Holders of Notes representing a specified percentage of the Outstanding Amount, the Clearing Agency or Foreign Clearing Agency shall be deemed to represent such percentage only to the extent that they have received instructions to such effect from the Note Owners and/or Clearing Agency Participants owning or representing, respectively, such required percentage of the beneficial interest in the Notes and has delivered such instructions to the Indenture Trustee. Section 2.14. Notices to Clearing Agency or Foreign Clearing Agency. ----------------------------------------------------- Whenever a notice or other communication to the Noteholders is required under this Indenture, unless and until Definitive Notes shall have been issued to Note Owners pursuant to Section 2.15, the Indenture Trustee shall give all such ------------ notices and communications specified herein to be given to Noteholders to the Clearing Agency or Foreign Clearing Agency, as applicable, and shall have no obligation to the Note Owners. Section 2.15. Definitive Notes. If (i) (A) the Seller advises the Indenture ---------------- Trustee in writing that the Clearing Agency is no longer willing or able to discharge properly its responsibilities as Clearing Agency with respect to the Book-Entry Notes of a given Series and (B) the Indenture Trustee or Issuer is unable to locate and reach an agreement on satisfactory terms with a qualified successor, (ii) the Seller, at its option, advises the Indenture Trustee in writing that it elects to terminate the book-entry system through the Clearing Agency with respect to such Series or (iii) after the occurrence of a Servicer Default, Note Owners of Notes evidencing more than 50% of the principal balance of the Outstanding Notes (or such other percentage as specified in the related Indenture Supplement) of such Series advise the Indenture Trustee and the applicable Clearing Agency through the applicable Clearing Agency Participants in writing that the continuation of a book-entry system is no longer in the best interests of the Note Owners of such Series, the Clearing Agency shall notify all Note Owners of such Series of the occurrence of such event and of the availability of Definitive Notes to Note Owners of such Series requesting the same. Upon surrender to the Indenture Trustee of the Notes of such Series, accompanied by registration instructions from the applicable Clearing Agency, the Issuer shall execute and the Indenture Trustee shall authenticate Definitive Notes of such Series and shall recognize the registered holders of such Definitive Notes as Noteholders under this Indenture. Neither the Issuer nor the Indenture Trustee shall be liable for any delay in delivery of such instructions, and the Issuer and the Indenture 14 Trustee may conclusively rely on, and shall be fully protected in relying on, such instructions. Upon the issuance of Definitive Notes of such Series, all references herein to obligations imposed upon or to be performed by the applicable Clearing Agency or Foreign Clearing Agency shall be deemed to be imposed upon and performed by the Indenture Trustee, to the extent applicable with respect to such Definitive Notes, and the Indenture Trustee shall recognize the registered holders of the Definitive Notes of such Series as Noteholders of such Series hereunder. Definitive Notes will be transferable and exchangeable at the offices of the Transfer Agent and Registrar. Section 2.16. Global Note. If specified in the related Indenture Supplement ----------- for any Series, Notes may be initially issued in the form of a single temporary Global Note (the "Global Note") in bearer form, without interest coupons, in the ----------- denomination of the initial principal amount and substantially in the form attached to the related Indenture Supplement. Unless otherwise specified in the related Indenture Supplement, the provisions of this Section 2.16 shall apply to ------------ such Global Note. The Global Note will be authenticated by the Indenture Trustee upon the same conditions, in substantially the same manner and with the same effect as the Definitive Notes. The Global Note may be exchanged in the manner described in the related Indenture Supplement for Registered Notes or Bearer Notes in definitive form. Except as otherwise specifically provided in the Indenture Supplement, any Notes that are issued in bearer form pursuant to this Indenture shall be issued in accordance with the requirements of Code section 163(f)(2). Section 2.17. Meetings of Noteholders. To the extent provided by the ----------------------- Indenture Supplement for any Series issued in whole or in part in Bearer Notes, the Servicer or the Indenture Trustee may at any time call a meeting of the Noteholders of such Series, to be held at such time and at such place as the Servicer and the Indenture Trustee, as the case may be, shall determine, for the purpose of approving a modification or amendment to, or obtaining a waiver of, any covenant or condition set forth in this Indenture with respect to such Series or in the Notes of such Series, subject to Article X. --------- Section 2.18. Uncertificated Classes. Notwithstanding anything to the ---------------------- contrary contained in this Article II or in Article XI, unless otherwise ---------- ---------- specified in any Indenture Supplement, any provisions contained in this Article ------- II and in Article XI relating to the registration, form, execution, - -- ---------- authentication, delivery, presentation, cancellation and surrender of Notes shall not be applicable to any uncertificated Notes, provided, however, that, -------- ------- except as otherwise specifically provided in the Indenture Supplement, any such uncertificated Notes shall be issued in "registered form" within the meaning of Code section 163(f)(1). 15 ARTICLE III REPRESENTATIONS AND COVENANTS OF ISSUER Section 3.1. Payment of Principal and Interest. --------------------------------- (a) The Issuer will duly and punctually pay principal and interest in accordance with the terms of the Notes as specified in the relevant Indenture Supplement. (b) The Noteholders of a Series as of the Record Date in respect of a Distribution Date shall be entitled to the interest accrued and payable and principal payable on such Distribution Date as specified in the related Indenture Supplement. All payment obligations under a Note are discharged to the extent such payments are made to the Noteholder of record. Section 3.2. Maintenance of Office or Agency. The Issuer will maintain ------------------------------- an office or agency within the State of New York and such other locations as may be set forth in an Indenture Supplement where Notes may be presented or surrendered for payment, where Notes may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer hereby initially appoints the Indenture Trustee at its Corporate Trust Office to serve as its agent for the foregoing purposes. The Issuer will give prompt written notice to the Indenture Trustee and the Noteholders of the location, and of any change in the location, of any such office or agency. If at any time the Issuer shall fail to maintain any such office or agency or shall fail to furnish the Indenture Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Issuer hereby appoints the Indenture Trustee at its Corporate Trust Office as its agent to receive all such presentations, surrenders, notices and demands. Section 3.3. Money for Note Payments to Be Held in Trust. As specified ------------------------------------------- in Section 8.3(a) and (b) herein and in the related Indenture Supplement, all -------------- --- payments of amounts due and payable with respect to the Notes which are to be made from amounts withdrawn from the Collection Account and the Excess Funding Account shall be made on behalf of the Issuer by the Indenture Trustee or by the Paying Agent, and no amounts so withdrawn from the Collection Account or the Excess Funding Account shall be paid over to or at the direction of the Issuer except as provided in this Section 3.3 and in the related Indenture Supplement. ----------- The Issuer will cause each Paying Agent other than the Indenture Trustee to execute and deliver to the Indenture Trustee an instrument in which such Paying Agent shall agree with the Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, 16 it hereby so agrees), subject to the provisions of this Section 3.3, that such ----------- Paying Agent, in acting as Paying Agent, is an express agent of the Issuer and, further, that such Paying Agent will: (i) hold all sums held by it for the payment of amounts due with respect to the Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided; (ii) give a Trustee Officer of the Indenture Trustee written notice of any default by the Issuer (or any other obligor upon the Notes) of which it has actual knowledge in the making of any payment required to be made with respect to the Notes; (iii) at any time during the continuance of any such default, upon the written request of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in trust by such Paying Agent; (iv) immediately resign as a Paying Agent and forthwith pay to the Indenture Trustee all sums held by it in trust for the payment of Notes if at any time it ceases to meet the standards required to be met by a Paying Agent at the time of its appointment; and (v) comply with all requirements of the Code with respect to the withholding from any payments made by it on any Notes of any applicable withholding taxes imposed thereon and with respect to any applicable reporting requirements in connection therewith. The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, by Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums held in trust by such Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts as those upon which such sums were held by such Paying Agent; and upon such payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to such sums. Section 3.4. Existence. The Issuer will keep in full effect its --------- existence, rights and franchises as a common law trust under the laws of the State of Illinois (unless it becomes, or any successor Issuer hereunder is or becomes, organized under the laws of any other State or of the United States of America, in which case the Issuer will keep in full effect its existence, rights and franchises under the laws of such other jurisdiction) and will obtain and preserve its qualification to do business in each jurisdiction in which 17 such qualification is or shall be necessary to protect the validity and enforceability of this Indenture, the Notes, the Collateral and each other related instrument or agreement. Section 3.5. Protection of Collateral. The Issuer will from time to ------------------------ time prepare, or cause to be prepared, execute and deliver all such supplements and amendments hereto and all such financing statements, continuation statements, instruments of further assurance and other instruments, and will take such other action necessary or advisable to: (a) grant more effectively all or any portion of the Collateral as security for the Notes; (b) maintain or preserve the lien (and the priority thereof) of this Indenture or to carry out more effectively the purposes hereof; (c) perfect, publish notice of, or protect the validity of any Grant made or to be made under this Indenture; (d) enforce any of the Collateral; or (e) preserve and defend title to the Collateral securing the Notes and the rights therein of the Indenture Trustee and the Noteholders secured thereby against the claims of all persons and parties. The Issuer hereby represents that all of the representations and warranties set out in Annex B are true and correct. ------- The Issuer hereby designates the Indenture Trustee its agent and attorney-in-fact to execute any financing statement, continuation statement or other instrument required pursuant to this Section 3.5, but the Indenture ----------- Trustee shall not have any obligation to take any such action unless instructed to do so by Noteholders in accordance with the terms hereof. The Issuer shall pay or cause to be paid any taxes levied on all or any part of the Receivables securing the Notes. Section 3.6. Opinions as to Collateral. ------------------------- (a) On the Closing Date relating to any new Series of Notes, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel satisfactory to the Rating Agencies either stating that, in the opinion of such counsel, such action has been taken to perfect the lien and security interest of this Indenture, including with respect to the recording and filing of this Indenture, any indentures supplemental hereto, and any other 18 requisite documents, and with respect to the execution and filing of any financing statements and continuation statements, as are so necessary and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to maintain the perfection of such lien and security interest. (b) On or before May 30 in each calendar year, beginning in 2001, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel satisfactory to the Rating Agencies either stating that, in the opinion of such counsel, such action has been taken to perfect the lien and security interest of this Indenture, including with respect to the recording, filing, re-recording and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents and with respect to the execution and filing of any financing statements and continuation statements as is so necessary and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain the perfection of such lien and security interest. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the perfection of the lien and security interest of this Indenture until May 30 in the following calendar year. Section 3.7. Performance of Obligations; Servicing of Receivables. ---------------------------------------------------- (a) The Issuer will not take any action and will use its best efforts not to permit any action to be taken by others that would release any Person from any of such Person's material covenants or obligations under any instrument or agreement included in the Collateral or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in this Indenture, the Transfer and Servicing Agreement or such other instrument or agreement. (b) The Issuer may contract with other Persons to assist it in performing its duties under this Indenture, and any performance of such duties by a Person identified to the Indenture Trustee in an Officer's Certificate of the Issuer shall be deemed to be action taken by the Issuer. Initially, the Issuer has contracted with the Administrator to assist the Issuer in performing its duties under this Indenture. (c) The Issuer will punctually perform and observe all of its obligations and agreements contained in this Indenture, the other Transaction Documents and in the instruments and agreements relating to the Collateral, including but not limited to filing or causing to be filed all UCC financing statements and continuation statements required to be filed by the terms of this Indenture and the Transfer and Servicing Agreement in accordance with and within the time periods provided for herein and therein. 19 (d) If the Issuer shall have knowledge of the occurrence of a Servicer Default under the Transfer and Servicing Agreement, the Issuer shall cause the Indenture Trustee to promptly notify the Rating Agencies thereof, and shall cause the Indenture Trustee to specify in such notice the action, if any, being taken with respect to such default. If a Servicer Default shall arise from the failure of the Servicer to perform any of its duties or obligations under the Transfer and Servicing Agreement with respect to the Receivables, the Issuer shall take all reasonable steps available to it to remedy such failure. (e) On and after the receipt by the Servicer of a Termination Notice pursuant to Section 7.1 of the Transfer and Servicing Agreement, the Servicer ----------- shall continue to perform all servicing functions under this Indenture until the date specified in the Termination Notice or until a date mutually agreed upon by the Servicer and the Indenture Trustee. As promptly as possible after the giving of a Termination Notice to the Servicer, the Indenture Trustee shall appoint a Successor Servicer, and such Successor Servicer shall accept its appointment by a written assumption in a form acceptable to the Indenture Trustee. In the event that a Successor Servicer has not been appointed and accepted its appointment at the time when the Servicer ceases to act as Servicer, the Indenture Trustee in accordance with Section 7.2 of the Transfer and Servicing Agreement without ----------- further action shall automatically be appointed the Successor Servicer. The Indenture Trustee may delegate any of its servicing obligations to an Affiliate or agent in accordance with Section 3.1(b) and Section 5.7 of the Transfer and -------------- ----------- Servicing Agreement. Notwithstanding the foregoing, the Indenture Trustee shall, if it is legally unable so to act, petition at the expense of the Servicer a court of competent jurisdiction to appoint any established institution qualifying as an Eligible Servicer as the Successor Servicer hereunder. The Indenture Trustee shall give prompt notice to each Rating Agency and each Series Enhancer upon the appointment of a Successor Servicer. Upon its appointment, the Successor Servicer shall be the successor in all respects to the Servicer with respect to servicing functions under this Indenture and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof, and all references in this Indenture to the Servicer shall be deemed to refer to the Successor Servicer. In connection with any Termination Notice, the Indenture Trustee will review any bids which it obtains from Eligible Servicers and shall be permitted to appoint any Eligible Servicer submitting such a bid as a Successor Servicer for servicing compensation, subject to the limitations set forth in Section 7.2 of ----------- the Transfer and Servicing Agreement. Notwithstanding anything else herein to the contrary, in no event shall the Indenture Trustee be liable for any servicing fee. (f) Without derogating from the absolute nature of the assignment granted to the Indenture Trustee under this Indenture or the rights of the Indenture Trustee hereunder, the Issuer agrees (i) that it will not, without the prior written consent of the Indenture Trustee and satisfaction of the Rating Agency Condition, amend, modify, waive, supplement, terminate or surrender, or agree to any amendment, modification, 20 supplement, termination, waiver or surrender of, the terms of any Collateral (except to the extent otherwise provided in the Transfer and Servicing Agreement) or the Transaction Documents (except to the extent otherwise provided in the Transaction Documents), or waive timely performance or observance by the Servicer or the Seller under the Transfer and Servicing Agreement; and (ii) that any such amendment shall not (A) increase or reduce in any manner the amount of, or accelerate or delay the timing of, collections of payments on the Receivables or distributions that are required to be made for the benefit of the Noteholders or (B) reduce the aforesaid percentage of the Notes that is required to consent to any such amendment, without the consent of the Holders of all the Outstanding Notes. If any such amendment, modification, supplement or waiver shall be so consented to by the Indenture Trustee and such Noteholders, the Issuer agrees, promptly following a request by the Indenture Trustee to do so, to execute and deliver, in its own name and at its own expense, such agreements, instruments, consents and other documents as the Indenture Trustee may deem necessary or appropriate in the circumstances. Section 3.8. Negative Covenants. So long as any Notes are Outstanding, ------------------ the Issuer will not: (a) sell, transfer, exchange, or otherwise dispose of any part of the Collateral unless directed to do so by the Indenture Trustee, except as expressly permitted by this Indenture and any Indenture Supplement, the Receivables Purchase Agreement, the Trust Agreement or the Transfer and Servicing Agreement; (b) claim any credit on, or make any deduction from, the principal and interest payable in respect of the Notes (other than amounts properly withheld from such payments under the Code or applicable state law) or assert any claim against any present or former Noteholder by reason of the payment of any taxes levied or assessed upon any part of the Collateral; (c) incur, assume, guarantee or otherwise become liable, directly or indirectly, for any indebtedness other than incurred under the Notes and this Indenture; (d) (i) permit the validity or effectiveness of this Indenture to be impaired, or permit the lien of this Indenture to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations with respect to the Notes under this Indenture except as may be expressly permitted hereby, (ii) permit any Lien, charge, excise, claim, security interest, mortgage or other encumbrance (other than the lien of this Indenture) to be created on or extend to or otherwise arise upon or burden the Collateral or any part thereof or any interest therein or the proceeds thereof or (iii) permit the lien of this Indenture not to constitute a valid first priority security interest (other than with respect to a tax, mechanics, or similar lien) in the Collateral; or 21 (e) voluntarily dissolve or liquidate in whole or in part. Section 3.9. Statements as to Compliance. The Issuer will deliver to --------------------------- the Indenture Trustee and the Rating Agencies, within 120 days after the end of each fiscal year of the Issuer at the end of which any Notes are outstanding (commencing within 120 days after the end of the fiscal year 2001), an Officer's Certificate stating, as to the Authorized Officer signing such Officer's Certificate, that (i) a review of the activities of the Issuer during the 12-month period ending at the end of such fiscal year and of performance under this Indenture has been made under such Authorized Officer's supervision, and (ii) to the best of such Authorized Officer's knowledge, based on such review, the Issuer has complied with all conditions and covenants under this Indenture throughout such year, or, if there has been a default in the compliance of any such condition or covenant, specifying each such default known to such Authorized Officer and the nature and status thereof. Section 3.10. Issuer May Consolidate, Etc., Only on Certain Terms. --------------------------------------------------- (a) The Issuer shall not consolidate or merge with or into any other Person, unless: (1) the Person (if other than the Issuer) formed by or surviving such consolidation or merger (the "Surviving Person") ---------------- (i) is organized and existing under the laws of the United States of America or any state or the District of Columbia, (ii) is not subject to regulation as an "investment company" under the Investment Company Act and (iii) expressly assumes, by an indenture supplemental hereto, executed and delivered to the Indenture Trustee, in a form satisfactory to the Indenture Trustee, the obligation to make due and punctual payment of the principal of and interest on all Notes and the performance of every covenant of this Indenture on the part of the Issuer to be performed or observed; (2) immediately after giving effect to such transaction, no Event of Default or Pay Out Event shall have occurred and be continuing; (3) the Issuer shall have delivered to the Indenture Trustee an Officer's Certificate and an Opinion of Counsel each stating that (i) such consolidation or merger and such supplemental indenture comply 22 with this Section 3.10, (ii) all conditions precedent provided for ------------ in this Section 3.10 relating to such transaction have been ------------ complied with (including any filing required by the Exchange Act), and (iii) such supplemental indenture is duly authorized, executed and delivered and is valid, binding and enforceable against the Surviving Person; (4) the Rating Agency Condition shall have been satisfied with respect to such transaction; (5) the Issuer shall have received a Tax Opinion with respect to such consolidation or merger; and (6) any action that is necessary to maintain the lien and security interest created by this Indenture shall have been taken. For the avoidance of doubt, this Section 3.10 shall not apply to the ------------ transfer of the Receivables and other assets to the Issuer on the FCMT Termination Date. (b) The Issuer shall not convey or transfer any of its properties or assets, including those included in the Collateral, substantially as an entirety to any Person, unless: (1) the Person that acquires by conveyance or transfer the properties and assets of the Issuer the conveyance or transfer of which is hereby restricted (the "Acquiring Person") (A) is a ---------------- United States citizen or a Person organized and existing under the laws of the United States of America or any state, or the District of Columbia, (B) is not subject to regulation as an "investment company" under the Investment Company Act, (C) expressly assumes, by an indenture supplemental hereto, executed and delivered to the Indenture Trustee, in form satisfactory to the Indenture Trustee, the obligation to make due and punctual payments of the principal of and interest on all Notes and the performance of every covenant of this Indenture on the part of the Issuer to be performed or observed, (D) expressly agree by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of Holders of the Notes, (E) unless otherwise provided in such supplemental indenture, expressly agree to indemnify, defend and hold harmless the Issuer against and from any loss, liability or expense arising under or related to this Indenture and the Notes and (F) expressly agree by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with the Commission (and any other appropriate Person) required by the Exchange Act in connection with the Notes; 23 (2) immediately after giving effect to such transaction, no Event of Default or Pay Out Event shall have occurred and be continuing; (3) the Rating Agency Condition shall have been satisfied with respect to such transaction; (4) the Issuer shall have received a Tax Opinion with respect to such transaction; (5) any action that is necessary to maintain the lien and security interest created by this Indenture shall have been taken; and (6) the Issuer shall have delivered to the Indenture Trustee an Officer's Certificate and an Opinion of Counsel each stating that (i) such conveyance or transfer and such supplemental indenture comply with this Section 3.10, (ii) all conditions precedent herein provided ------------ for relating to such transaction have been complied with (including any filing required by the Exchange Act), and (iii) such supplemental indenture is duly authorized, executed and delivered and is valid, binding and enforceable against the Acquiring Person. Section 3.11. Successor Substituted. Upon any consolidation or merger, or --------------------- any conveyance or transfer of the properties and assets of the Issuer substantially as an entirety in accordance with Section 3.10, the Surviving ------------ Person or the Acquiring Person, as the case may be, shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture with the same effect as if such Person had been named as the Issuer herein. In the event of any such conveyance or transfer, the Person named as the Issuer in the first paragraph of this Indenture or any successor which shall theretofore have become such in the manner prescribed in this Section 3.11 ------------ shall be released from its obligations under this Indenture as issued immediately upon the effectiveness of such conveyance or transfer, provided that the Issuer shall not be released from any obligations or liabilities to the Indenture Trustee or the Noteholders arising prior to such effectiveness. Section 3.12. No Other Business. The Issuer shall not engage in any ----------------- business other than (i) purchasing, owning and managing the Trust Assets and the proceeds thereof in the manner contemplated by this Indenture and the other Transaction Documents, (ii) issuing and making payments in respect of the Notes and (iii) all activities related thereto. 24 Section 3.13. [Reserved]. Section 3.14. Servicer's Obligations. The Issuer shall cause the Servicer ---------------------- to comply with all of its obligations under the Transaction Documents. Section 3.15. Investments. Except as contemplated by this Indenture or the ----------- Transfer and Servicing Agreement, the Issuer shall not own, purchase, repurchase or acquire (or agree contingently to do so) any stock, obligations, assets or securities of, or any other interest in, or make any capital contribution to, any other Person. Section 3.16. Capital Expenditures. The Issuer shall not make any -------------------- expenditure (by long-term or operating lease or otherwise) for capital assets (either realty or personalty). Section 3.17. Removal of Administrator. So long as any Notes are ------------------------ outstanding, the Issuer shall not remove the Administrator without cause unless the Rating Agency Condition shall have been satisfied in connection with such removal. Section 3.18. Restricted Payments. The Issuer shall not, directly or ------------------- indirectly, (i) pay any dividend or make any distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, to the Owner Trustee or any owner of a beneficial interest in the Issuer or otherwise with respect to any ownership or equity interest or security in or of the Issuer or to the Servicer, (ii) redeem, purchase, retire or otherwise acquire for value any such ownership or equity interest or security or (iii) set aside or otherwise segregate any amounts for any such purpose; provided, however, that the Issuer may make, or cause to be made, (x) - -------- ------- distributions as contemplated by, and to the extent funds are available for such purpose under, the Transaction Documents and (y) payments to the Indenture Trustee pursuant to Section 6.7. The Issuer will not, directly or indirectly, ----------- make payments to or distributions from the Collection Account except in accordance with the Transaction Documents. Section 3.19. Notice of Events of Default. The Issuer agrees to give a --------------------------- Trustee Officer of the Indenture Trustee and the Rating Agencies prompt written notice of each Event of Default hereunder and written notice of each default on the part of the Servicer or the Seller of its obligations under the Transfer and Servicing Agreement and each default on the part of a Seller of its obligations under the Receivables Purchase Agreement, as applicable. Section 3.20. Further Instruments and Acts. Upon request of the Indenture ---------------------------- Trustee, the Issuer will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture. 25 ARTICLE IV SATISFACTION AND DISCHARGE Section 4.1. Satisfaction and Discharge of this Indenture. This Indenture -------------------------------------------- shall cease to be of further effect with respect to the Notes except as to (a) rights of registration of transfer and exchange, (b) substitution of mutilated, destroyed, lost or stolen Notes, (c) the rights of Noteholders to receive payments of principal thereof and interest thereon, (d) Sections 3.3, 3.7, 3.8, ------------ --- --- 3.11, 3.12 and 12.16, (e) the rights and immunities of the Indenture Trustee - ---- ---- ----- hereunder, including the rights of the Indenture Trustee under Section 6.7, and ----------- the obligations of the Indenture Trustee under Section 4.2, and (f) the rights ----------- of Noteholders as beneficiaries hereof with respect to the property so deposited with the Indenture Trustee and payable to all or any of them, and the Indenture Trustee, on written demand of and at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Notes when: (i) either (A) all Notes theretofore authenticated and delivered (other than (1) Notes which have been destroyed, lost or stolen and which have been replaced, or paid as provided in Section 2.6, and (2) Notes for whose full payment money has ----------- theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust, as provided in Section 3.3) ----------- have been delivered to the Indenture Trustee for cancellation; or (B) all Notes not theretofore delivered to the Indenture Trustee for cancellation: (1) have become due and payable; (2) will become due and payable at the Series Termination Date for such Class or Series of Notes; or (3) are to be called for redemption within one year under arrangements satisfactory to the Indenture Trustee for the giving of notice of redemption by the Indenture Trustee in the name, and at the expense, of the Issuer; (4) and the Issuer, in the case of (1), (2) or (3) above, has irrevocably deposited or caused to be irrevocably deposited with the Indenture Trustee cash or direct obligations of or obligations guaranteed 26 by the United States of America (which will mature prior to the date such amounts are payable), in trust for such purpose, in an amount sufficient to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Indenture Trustee for cancellation when due at the Series Termination Date for such Class or Series of Notes or the Redemption Date (if Notes shall have been called for redemption pursuant to the related Indenture Supplement), as the case may be; (ii) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer; and (iii) the Issuer has delivered to the Indenture Trustee an Officer's Certificate, an Opinion of Counsel and (if required by the TIA or the Indenture Trustee) an Independent Certificate from a firm of certified public accountants, each meeting the applicable requirements of Section ------- 12.1(a) and each stating that all conditions precedent herein provided for ------- relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Issuer to the Indenture Trustee under Section 6.7 and of the ----------- Indenture Trustee to the Noteholders under Section 4.2 shall survive. ----------- Section 4.2. Application of Issuer Money. All monies deposited with the --------------------------- Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied by ----------- it, in accordance with the provisions of the Notes, this Indenture and the applicable Indenture Supplement, to make payments, either directly or through any Paying Agent to the Noteholders and for the payment in respect of which such monies have been deposited with the Indenture Trustee, of all sums due and to become due thereon for principal and interest; but such monies need not be segregated from other funds except to the extent required herein or in the Transfer and Servicing Agreement or required by law. ARTICLE V PAY OUT EVENTS, DEFAULTS AND REMEDIES Section 5.1. Pay Out Events. If any one of the following events (each, a -------------- "Trust Pay Out Event") shall occur: ------------------- (a) the occurrence of an Insolvency Event relating to the Seller or FCNB; (b) a Transfer Restriction Event shall occur; or 27 (c) the Issuer shall become subject to regulation by the Commission as an "investment company" within the meaning of the Investment Company Act; then a Pay Out Event with respect to all Series of Notes shall occur without any notice or other action on the part of the Indenture Trustee or the Noteholders immediately upon the occurrence of such event. Upon the occurrence of a Pay Out Event, payment on the Notes of each Series will be made in accordance with the terms of the related Indenture Supplement. Section 5.2. Events of Default. "Event of Default," wherever used herein, ----------------- ---------------- means with respect to any Series any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (a) default in the payment of the principal of any Note of that Series, if and to the extent not previously paid, when the same becomes due and payable on its Series Termination Date; or (b) default in the payment of any interest on any Note of that Series when the same becomes due and payable, and such default shall continue for a period of thirty-five (35) days; or (c) the filing of a decree or order for relief by a court having jurisdiction in the premises in respect of the Issuer in an involuntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, conservator, liquidator, assignee, custodian, trustee, sequestrator or similar official for the Issuer or ordering the winding-up or liquidation of the Issuer's affairs, and such decree or order shall remain unstayed and in effect for a period of sixty (60) consecutive days; or (d) the commencement by the Issuer of a voluntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by the Issuer to the entry of an order for relief in an involuntary case under any such law, or the consent by the Issuer to the appointment of or the taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator or similar official of the Issuer, or the making by the Issuer of any general assignment for the benefit of creditors, or the failure by the Issuer generally to pay, or the admission in writing by the Issuer of its inability to pay, its debts as such debts become due, or the taking of action by the Issuer in furtherance of any of the foregoing; or 28 (e) default in the observance or performance of any covenant or agreement of the Issuer made in this Indenture made in respect of the Notes of such Series (other than a covenant or agreement, a default in the observance or performance of which is elsewhere in this Section 5.2 specifically dealt with) (all of such ----------- covenants and agreements in the Indenture which are not expressly stated to be for the benefit of a particular Series being deemed to be in respect of the Notes of all Series for this purpose) and such default shall continue or not be cured for a period of sixty (60) days after there shall have been given, by registered or certified mail, return receipt requested to the Issuer by the Indenture Trustee or to the Issuer and the Indenture Trustee by the Holders of Notes representing at least 25% of the principal balance of the Outstanding Notes of such Series, a written notice specifying such default and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder ----------------- and, as a result of such default, the interests of the Holders of the Notes are materially and adversely affected and continue to be materially and adversely affected during the 60-day period; or (f) any additional events specified in the Indenture Supplement related to such Series. The Issuer shall deliver to a Trustee Officer of the Indenture Trustee, within five (5) days after the occurrence thereof, written notice in the form of an Officer's Certificate of any event which with the giving of notice and the lapse of time would become an Event of Default, its status and what action the Issuer is taking or proposes to take with respect thereto. Section 5.3. Acceleration of Maturity; Rescission and Annulment. If an -------------------------------------------------- Event of Default described in paragraph (a), (b) or (e) of Section 5.2 should ------------- --- --- ----------- occur and be continuing with respect to a Series, then and in every such case the Indenture Trustee or the Holders of Notes representing more than 50% of the principal balance of the Outstanding Notes of such Series may declare all the Notes of such Series to be immediately due and payable, by a notice in writing to the Issuer (and to a Trustee Officer of the Indenture Trustee if declared by Noteholders), and upon any such declaration the unpaid principal amount of such Notes, together with accrued and unpaid interest thereon through the date of acceleration, shall become immediately due and payable. If an Event of Default described in paragraph (c) or (d) of Section 5.2 ------------- --- ----------- should occur and be continuing, then the unpaid principal of the Notes, together with accrued and unpaid interest thereon through the date of acceleration, shall automatically become due and payable. At any time after such declaration of acceleration of maturity has been made and before a judgment or decree for payment of the money due has been obtained by the Indenture Trustee as hereinafter provided in this Article V, the --------- Holders of Notes 29 representing more than 50% of the principal balance of the Outstanding Notes of such Series, by written notice to the Issuer, a Trustee Officer of the Indenture Trustee and the Rating Agencies, may rescind and annul such declaration and its consequences; provided, that: -------- ---- (a) the Issuer has paid or deposited with the Indenture Trustee a sum sufficient to pay: (i) all payments of principal of and interest on all Notes and all other amounts that would then be due hereunder or upon such Notes if the Event of Default giving rise to such acceleration had not occurred; and (ii) all sums paid or advanced by the Indenture Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its agents and counsel; and (iii) all Events of Default, other than the nonpayment of the principal of the Notes that has become due solely by such acceleration, have been cured or waived as provided in Section 5.13. ------------ No such rescission shall affect any subsequent default or impair any right consequent thereto. Section 5.4. Collection of Indebtedness and Suits for Enforcement by ------------------------------------------------------- Indenture Trustee. - ----------------- (a) The Issuer covenants that if (i) default is made in the payment of any interest on any Note when the same becomes due and payable, and such default continues for a period of thirty-five (35) days following the date on which such interest became due and payable, or (ii) default is made in the payment of principal of any Note, if and to the extent not previously paid, when the same becomes due and payable on the Series Termination Date, the Issuer will, upon demand of the Indenture Trustee, pay to it, for the benefit of the Holders of the Notes of the affected Series, the whole amount then due and payable on such Notes for principal and interest, with interest upon the overdue principal, and, to the extent payment at such rate of interest shall be legally enforceable, interest upon overdue installments of interest, as specified in the related Indenture Supplement, and in addition thereto will pay such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its agents and counsel. (b) In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Indenture Trustee, in its own name and as trustee of an express trust, may 30 institute a Proceeding for the collection of the sums so due and unpaid, and may prosecute such Proceeding to judgment or final decree, and may enforce the same against the Issuer or other obligor upon such Notes and collect in the manner provided by law out of the property of the Issuer or other obligor upon such Notes, wherever situated, the moneys adjudged or decreed to be payable. (c) If an Event of Default occurs and is continuing, the Indenture Trustee may, as more particularly provided in Section 5.5, in its discretion, proceed to ----------- protect and enforce its rights and the rights of the Noteholders of the affected Series, by such appropriate Proceedings as the Indenture Trustee shall deem most effective to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy or legal or equitable right vested in the Indenture Trustee by this Indenture or by law. (d) In case there shall be pending, relative to the Issuer or any other obligor upon the Notes of the affected Series, or any Person having or claiming an ownership interest in the Collateral, Proceedings under Title 11 of the United States Code or any other applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or in case a receiver, conservator, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator, custodian or other similar official shall have been appointed for or taken possession of the Issuer or its property or such other obligor or Person, or in case of any other comparable judicial Proceedings relative to the Issuer or other obligor upon the Notes of such Series, or to the creditors or property of the Issuer or such other obligor, the Indenture Trustee, irrespective of whether the principal of any Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Indenture Trustee shall have made any demand pursuant to the provisions of this Section 5.4, shall be entitled and empowered, by intervention ----------- in such Proceedings or otherwise: (i) to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Notes of such Series and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee (including any claim for reasonable compensation to the Indenture Trustee and each predecessor Indenture Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee, except as a result of negligence or willful misconduct) and of the Noteholders of such Series allowed in such Proceedings; (ii) unless prohibited by applicable law and regulations, to vote on behalf of the Holders of Notes of such Series in any election of a trustee, a 31 standby trustee or Person performing similar functions in any such Proceedings; (iii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute all amounts received with respect to the claims of the Noteholders of such Series and of the Indenture Trustee on their behalf; and (iv) to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee or the Holders of Notes of such Series allowed in any judicial Proceedings relative to the Issuer, its creditors and its property; and any trustee, receiver, conservator, liquidator, custodian, assignee, sequestrator or other similar official in any such Proceeding is hereby authorized by each of such Noteholders to make payments to the Indenture Trustee, and, in the event that the Indenture Trustee shall consent to the making of payments directly to such Noteholders, to pay to the Indenture Trustee such amounts as shall be sufficient to cover reasonable compensation to the Indenture Trustee, each predecessor Indenture Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee except as a result of negligence or willful misconduct. (e) Nothing herein contained shall be deemed to authorize the Indenture Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Indenture Trustee to vote in respect of the claim of any Noteholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar Person. (f) All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Indenture Trustee without the possession of any of the Notes or the production thereof in any trial or other Proceedings relative thereto, and any such action or Proceedings instituted by the Indenture Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Indenture Trustee, each predecessor Indenture Trustee and their respective agents and attorneys, shall be for the benefit of the Holders of the Notes of the affected Series as provided herein. (g) In any Proceedings brought by the Indenture Trustee (and also any Proceedings involving the interpretation of any provision of this Indenture to which the Indenture Trustee shall be a party), the Indenture Trustee shall be held to represent all the Holders of the Notes of the affected Series, and it shall not be necessary to make any such Noteholder a party to any such Proceedings. 32 Section 5.5. Remedies; Priorities. -------------------- (a) If an Event of Default shall have occurred and be continuing with respect to any Series, and the Notes of such Series have been accelerated pursuant to Section 5.3, the Indenture Trustee may do one or more of the ----------- following (subject to Sections 5.6 and 12.16): ------------ ----- (i) institute Proceedings in its own name and as trustee of an express trust for the collection of all amounts then payable on the Notes of the affected Series or under this Indenture with respect thereto, whether by declaration or otherwise, enforce any judgment obtained, and collect from the Issuer and any other obligor upon such Notes moneys adjudged due; (ii) take any other appropriate action to protect and enforce the rights and remedies of the Indenture Trustee and the Holders of the Notes of the affected Series; (iii) cause the Issuer to sell Principal Receivables (or interests therein) in an amount equal to the Collateral Amount of the accelerated Series and the related Finance Charge Receivables in accordance with Section 5.16; ------------ provided, however, that the Indenture Trustee may not exercise the remedy - -------- ------- described in subparagraph (iii) above unless (A) (1) the Holders of Notes representing 100% of the principal balance of the Outstanding Notes of the affected Series consent in writing thereto, (2) the Indenture Trustee determines that any proceeds of such exercise distributable to the Noteholders of the affected Series are sufficient to discharge in full all amounts then due and unpaid upon the Notes for principal and interest and is directed to exercise this remedy by Holders of Notes representing more than 50% of the principal balance of the Outstanding Notes of such Series, or (3) the Indenture Trustee determines that the Collateral may not continue to provide sufficient funds for the payment of principal of and interest on the Notes as they would have become due if the Notes had not been declared due and payable, and the Indenture Trustee obtains the consent of the Holders of Notes representing at least 66-2/3% of the principal balance of the Outstanding Notes of each Class of such Series and (B) the Indenture Trustee has obtained an Opinion of Counsel to the effect that the exercise of such remedy complies with applicable federal and state securities laws. In determining such sufficiency or insufficiency with respect to clauses (A)(2) and (A)(3), the Indenture Trustee may, but need not, obtain and conclusively rely upon an opinion of an Independent investment banking or accounting firm of national reputation as to the feasibility of such proposed action and as to the sufficiency of the Collateral for such purpose. 33 The remedies provided in this Section 5.5(a) are the exclusive remedies -------------- provided to the Noteholders with respect to the Collateral and each of the Noteholders (by their acceptance of their respective interests in the Notes) or the Indenture Trustee hereby expressly waive any other remedy that might have been available under the applicable UCC. (b) If the Indenture Trustee collects any money or property pursuant to this Article V following the acceleration of the Notes of the affected Series pursuant to Section 5.3 (so long as such a declaration shall not have been rescinded or annulled), it shall pay out the money or property in the following order: FIRST: to the Indenture Trustee for amounts due pursuant to Section 6.7; ----------- and SECOND: unless otherwise specified in the related Indenture Supplement, to the Servicer for distribution in accordance with Article IV of the related Indenture Supplement with such amounts being deemed to be Principal Collections and Finance Charge Collections in the same proportion as (x) the outstanding principal balance of the Notes bears to (y) the sum of the accrued and unpaid interest on the Notes and other fees and expenses payable in connection therewith under the applicable Indenture Supplement, including the amounts payable under any Enhancements with respect to such Series. (c) The Indenture Trustee may, upon notification to the Issuer, fix a record date and payment date for any payment to Noteholders of the affected Series pursuant to this Section 5.5. At least fifteen (15) days before such ----------- record date, the Indenture Trustee shall mail or send by facsimile, at the expense of the Servicer, to each such Noteholder a notice that states the record date, the payment date and the amount to be paid. Section 5.5. Optional Preservation of the Collateral. If the Notes of any --------------------------------------- Series have been declared to be due and payable under Section 5.3 following an ----------- Event of Default and such declaration and its consequences have not been rescinded and annulled, and the Indenture Trustee has not received directions from the Noteholders pursuant to Section 5.12, the Indenture Trustee may, but ------------ need not, elect to maintain possession of the portion of the Collateral which secures such Notes and apply proceeds of the Collateral to make payments on such Notes to the extent such proceeds are available therefor. It is the desire of the parties hereto and the Noteholders that there be at all times sufficient funds for the payment of principal of and interest on the Notes, and the Indenture Trustee shall take such desire into account when determining whether or not to maintain possession of the Collateral. In determining whether to maintain possession of the Collateral, the Indenture Trustee may, but need not, obtain and conclusively rely upon an 34 opinion of an Independent investment banking or accounting firm of national reputation as to the feasibility of such proposed action and as to the sufficiency of the Trust Assets for such purpose. Section 5.7. Limitation on Suits. No Noteholder shall have any right to ------------------- institute any proceedings, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless: (a) the Holders of Notes representing not less than 25% of the principal balance of the Outstanding Notes of each affected Series have made written request to the Indenture Trustee to institute such proceeding in its own name as indenture trustee; (b) such Noteholder or Noteholders has previously given written notice to the Indenture Trustee of a continuing Event of Default; (c) such Noteholder or Noteholders has offered to the Indenture Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request; (d) the Indenture Trustee for sixty (60) days after its receipt of such request and offer of indemnity has failed to institute any such Proceeding; and (e) no direction inconsistent with such written request has been given to the Indenture Trustee during such 60-day period by the Holders of Notes representing more than 50% of the principal balance of the Outstanding Notes of such Series; it being understood and intended that no one or more Noteholders of the affected Series shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Noteholders of such Series or to obtain or to seek to obtain priority or preference over any other Noteholders of such Series or to enforce any right under this Indenture, except in the manner herein provided. In the event the Indenture Trustee shall receive conflicting or inconsistent requests and indemnity from two (2) or more groups of Noteholders of such affected Series, each representing no more than 50% of the principal balance of the Outstanding Notes of such Series, the Indenture Trustee in its sole discretion may determine what action, if any, shall be taken, notwithstanding any other provisions of this Indenture. 35 Section 5.8. Unconditional Rights of Noteholders to Receive Principal and ------------------------------------------------------------ Interest. Notwithstanding any other provision in this Indenture, each Noteholder - -------- shall have the right which is absolute and unconditional to receive payment of the principal of and interest in respect of such Note as such principal and interest becomes due and payable and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Noteholder. Section 5.9. Restoration of Rights and Remedies. If the Indenture Trustee ---------------------------------- or any Noteholder has instituted any Proceeding to enforce any right or remedy under this Indenture and such Proceeding has been discontinued or abandoned, or has been determined adversely to the Indenture Trustee or to such Noteholder, then and in every such case the Issuer, the Indenture Trustee and the Noteholder shall, subject to any determination in such Proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Noteholders shall continue as though no such Proceeding had been instituted. Section 5.10. Rights and Remedies Cumulative. No right, remedy, power or ------------------------------ privilege herein conferred upon or reserved to the Indenture Trustee or to the Noteholders is intended to be exclusive of any other right, remedy, power or privilege, and every right, remedy, power or privilege shall, to the extent permitted by law, be cumulative and in addition to every other right, remedy, power or privilege given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or exercise of any right or remedy shall not preclude any other further assertion or the exercise of any other appropriate right or remedy. Section 5.11. Delay or Omission Not Waiver. No failure to exercise and no ---------------------------- delay in exercising, on the part of the Indenture Trustee or of any Noteholder or other Person, any right or remedy occurring hereunder upon any Event of Default shall impair any such right or remedy or constitute a waiver thereof of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article V or by law to the Indenture Trustee or to the Noteholders --------- may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as the case may be. Section 5.12. Rights of Noteholders to Direct Indenture Trustee. The ------------------------------------------------- Holders of Notes representing more than 50% of the principal balance of the Outstanding Notes of any affected Series shall have the right to direct in writing the time, method and place of conducting any Proceeding for any remedy available to the Indenture Trustee with respect to such Series or exercising any trust or power conferred on the Indenture Trustee with respect to such Series; provided, however, that subject to Section 6.1: - -------- ------- ----------- 36 (a) the Indenture Trustee shall have the right to decline any such direction if the Indenture Trustee, after being advised by counsel, determines that the action so directed is in conflict with any rule of law or with this Indenture, and (b) the Indenture Trustee shall have the right to decline any such direction if the Indenture Trustee in good faith shall, by a Trustee Officer of the Indenture Trustee, determine that the Proceedings so directed would be illegal or involve the Indenture Trustee in personal liability or be unjustly prejudicial to the Noteholders not parties to such direction. Section 5.13. Waiver of Past Defaults. Prior to the declaration of the ----------------------- acceleration of the maturity of the Notes of the affected Series as provided in Section 5.3, Holders of Notes representing more than 50% of the principal - ----------- balance of the Outstanding Notes of such Series (or with respect to any such Series with two or more Classes, of each Class), may, on behalf of all such Noteholders, waive in writing any past default, with written notice to the Indenture Trustee, with respect to such Notes and its consequences, except a default: (a) in the payment of the principal or interest in respect of any Note of such Series, or (b) in respect of a covenant or provision hereof that under Section 10.2 ------------ cannot be modified or amended without the consent of the Noteholder of each Outstanding Note affected. Upon any such written waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. Section 5.14. Undertaking for Costs. All parties to this Indenture agree, --------------------- and each Noteholder by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Indenture Trustee for any action taken, suffered or omitted by it as Indenture Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant (other than the Indenture Trustee) in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 5.14 shall not apply to any suit instituted by the Indenture ------------ Trustee, to any suit instituted by any Noteholder, or group of Noteholders (in compliance with Section 5.8), holding Notes representing more than 10% of the ----------- principal balance of the Outstanding Notes of the affected Series, or to any suit instituted by any Noteholder for the enforcement of the 37 payment of the principal or interest in respect of any Note on or after the Distribution Date on which any of such amounts was due (or, in the case of redemption, on or after the applicable Redemption Date). Section 5.15. Waiver of Stay or Extension Laws. The Issuer covenants (to -------------------------------- the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may adversely affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Indenture Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. Section 5.16. Sale of Receivables. ------------------- (a) The method, manner, time, place and terms of any sale of Receivables pursuant to Section 5.5(a)(iii) shall be commercially reasonable. The Indenture ------------------ Trustee may from time to time postpone any sale by public announcement made at the time and place of such sale. The Indenture Trustee hereby expressly waives its right to any amount fixed by law as compensation for any sale. (b) The Indenture Trustee is hereby irrevocably appointed the agent and attorney-in-fact of the Issuer in connection with any sale of Receivables pursuant to Section 5.5(a)(iii). No purchaser or transferee at any such sale ------------------ shall be bound to ascertain the Indenture Trustee's authority, inquire into the satisfaction of any conditions precedent or see to the application of any monies. (c) In its exercise of the foreclosure remedy pursuant to Section ------- 5.5(a)(iii), the Indenture Trustee shall solicit bids for the sale of Principal - ---------- Receivables in any amount equal to the Collateral Amount of the affected Series of Notes at the time of sale and the related Finance Charge Receivables (or interests therein). The Seller or any of its affiliates shall be entitled to participate in, and to receive from the Indenture Trustee a copy of each other bid submitted in connection with, such bidding process; provided that (i) at -------- least one participant other than the Seller and any of its affiliates must submit a bona fide offer, and (ii) the Seller and any of its affiliates are prohibited from bidding an amount which exceeds fair value for the transferred assets. The Indenture Trustee shall sell such Receivables (or interests therein) to the bidder with the highest cash purchase offer. The proceeds of any such sale shall be applied as specified in the applicable Indenture Supplement. 38 Section 5.17. Action on Notes. The Indenture Trustee's right to seek and --------------- recover judgment on the Notes or under this Indenture shall not be affected by the seeking or obtaining of or application for any other relief under or with respect to this Indenture. Neither the lien of this Indenture nor any rights or remedies of the Indenture Trustee or the Noteholders shall be impaired by the recovery of any judgment by the Indenture Trustee against the Issuer or by the levy of any execution under such judgment upon any portion of the Collateral or upon any of the assets of the Issuer. Any money or property collected by the Indenture Trustee shall be applied as specified in the applicable Indenture Supplement. ARTICLE VI THE INDENTURE TRUSTEE Section 6.1. Duties of the Indenture Trustee. ------------------------------- (a) If an Event of Default has occurred and is continuing and a Trustee Officer shall have actual knowledge or written notice of such Event of Default, the Indenture Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs. (b) Except during the continuance of an Event of Default: (i) the Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Indenture Trustee; and (ii) in the absence of bad faith or negligence on its part, the Indenture Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Indenture Trustee and conforming to the requirements of this Indenture; provided, however, the Indenture Trustee, -------- ------- upon receipt of any resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Indenture Trustee which are specifically required to be furnished pursuant to any provision of this Indenture or any Indenture Supplement, shall examine them to determine whether they substantially conform to the requirements of this Indenture or any Indenture Supplement. (c) If a Pay Out Event has occurred and is continuing and a Trustee Officer shall have actual knowledge or written notice of such Pay Out Event, the Indenture Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use 39 the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs. (d) No provision of this Indenture shall be construed to relieve the Indenture Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) this Section 6.1(d) shall not be construed to limit the effect ------------- of Section 6.1(a); ------------- (ii) the Indenture Trustee shall not be liable for any error of judgment made in good faith by a Trustee Officer, unless it shall be proved that the Indenture Trustee was negligent in ascertaining the pertinent facts; and (iii) the Indenture Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the Indenture and/or the direction of the Holders of Notes or for exercising any trust or power conferred upon the Indenture Trustee, under this Indenture. The Indenture Trustee shall not be liable for any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the Servicer, the Seller or the Trust in compliance with the terms of this Indenture or any Indenture Supplement. (e) No provision of this Indenture shall require the Indenture Trustee to expend or risk its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it. (f) Every provision of this Indenture that in any way relates to the Indenture Trustee is subject to this Section 6.1. ----------- (g) Except as expressly provided in this Indenture, the Indenture Trustee shall have no power to vary the Collateral, including by (i) accepting any substitute payment obligation for a Receivable initially transferred to the Trust under the Transfer and Servicing Agreement, (ii) adding any other investment, obligation or security to the Trust or (iii) withdrawing from the Issuer any Receivable (except as otherwise provided in the Transfer and Servicing Agreement). (h) The Indenture Trustee shall have no responsibility or liability for investment losses on Permitted Investments (other than Permitted Investments on which the institution acting as Indenture Trustee is an obligor). The Indenture Trustee shall have no obligation to invest and reinvest any cash held in the absence of timely and 40 specific written investment direction from the Issuer. In no event shall the Indenture Trustee be liable for the selection of investments or for investment losses incurred thereon. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Issuer to provide timely written investment direction. (i) The Indenture Trustee shall notify each Rating Agency (i) of any change in any rating of the Notes by any other Rating Agency of which a Trustee Officer of the Indenture Trustee has actual knowledge, and (ii) immediately of the occurrence of any Event of Default or Pay Out Event of which a Trustee Officer of the Indenture Trustee has actual knowledge of or has actual notice from the Servicer of potential Pay Out Events or Events of Default. (j) For all purposes under this Indenture, the Indenture Trustee shall not be deemed to have notice or knowledge of any Event of Default, Pay Out Event or Servicer Default unless a Trustee Officer assigned to and working in the Corporate Trust Office of the Indenture Trustee has actual knowledge thereof or has received written notice thereof. For purposes of determining the Indenture Trustee's responsibility and liability hereunder, any reference to an Event of Default, Pay Out Event or Servicer Default shall be construed to refer only to such event of which the Indenture Trustee is deemed to have notice as described in this Section 6.1(j). ------------- Section 6.2. Notice of Pay Out Event or Event of Default. Upon the ------------------------------------------- occurrence of any Pay Out Event or Event of Default of which a Trustee Officer has actual knowledge or has received written notice thereof, the Indenture Trustee shall transmit by mail to all Noteholders as their names and addresses appear on the Note Register and the Rating Agencies, notice of such Pay Out Event or Event of Default hereunder known to the Indenture Trustee within thirty (30) days after it occurs or within ten (10) Business Days after it receives such notice or obtains actual notice, if later. Section 6.3. Rights of Indenture Trustee. Except as otherwise provided in --------------------------- Section 6.1: - ----------- (a) the Indenture Trustee may conclusively rely and shall fully be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) whenever in the administration of this Indenture the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely 41 upon an Officer's Certificate of the Issuer. The Issuer shall provide a copy of such Officer's Certificate to the Noteholders at or prior to the time the Indenture Trustee receives such Officer's Certificate; (c) as a condition to the taking, suffering or omitting of any action by it hereunder, the Indenture Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in-good faith and in reliance thereon; (d) the Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture or to honor the request or direction of any of the Noteholders pursuant to this Indenture, unless such Noteholders shall have offered to the Indenture Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (e) the Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note or other paper or document, but the Indenture Trustee at the written direction of one or more of the Noteholders and at the expense of the Noteholders, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer and the Servicer, personally or by agent or attorney; (f) the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees and the Indenture Trustee shall not be responsible for any (i) misconduct or negligence on the part of any agent, attorney, custodians or nominees appointed with due care by it hereunder or (ii) the supervision of such agents, attorneys, custodians or nominees after such appointment with due care; (g) the Indenture Trustee shall not be liable for any actions taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights conferred upon the Indenture Trustee by this Indenture; and (h) in the event that the Indenture Trustee is also acting as Paying Agent and Transfer Agent and Registrar and Successor Servicer, if it becomes Successor Servicer pursuant to Section 7.2 of the Transfer and Servicing Agreement, the rights and protections afforded to the Indenture Trustee pursuant to this Article VI shall also be afforded to such Paying Agent and Transfer Agent and - ---------- Registrar and Successor Servicer, 42 if it becomes Successor Servicer pursuant to Section 7.2 of the Transfer and Servicing Agreement. Section 6.4. Not Responsible for Recitals or Issuance of Notes. The ------------------------------------------------- recitals contained herein and in the Notes, except the certificate of authentication of the Indenture Trustee, shall be taken as the statements of the Issuer, and the Indenture Trustee assumes no responsibility for their correctness. Neither the Indenture Trustee nor any of its agents makes any representation as to the validity or sufficiency of the Agreement, the Notes, or any related document. The Indenture Trustee shall not be accountable for the use or application by the Issuer of the proceeds from the Notes. Section 6.5. Restrictions on Holding Notes. The Indenture Trustee shall not ----------------------------- in its individual capacity, but may in a fiduciary capacity, become the owner or pledgee of Notes and may otherwise deal with the Issuer with the same rights it would have if it were not Indenture Trustee, Paying Agent, Transfer Agent and Registrar or such other agent. Any Paying Agent, Transfer Agent and Registrar that is not also the Indenture Trustee or any other agent of the Issuer, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer with the same rights it would have if it were not Indenture Trustee, Paying Agent, Transfer Agent and Registrar or such other agent. Section 6.6. Money Held in Trust. Money held by the Indenture Trustee in ------------------- trust hereunder need not be segregated from other funds held by the Indenture Trustee in trust hereunder except to the extent required herein or required by law. The Indenture Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed upon in writing by the Indenture Trustee and the Issuer. Section 6.7. Compensation, Reimbursement and Indemnification. The Servicer ----------------------------------------------- shall pay to the Indenture Trustee from time to time reasonable compensation for all services rendered by the Indenture Trustee and the Authenticating Agent under this Agreement (which compensation shall not be limited by any law on compensation of a trustee of an express trust). The Servicer shall reimburse the Indenture Trustee for all reasonable out-of-pocket expenses incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustee's agents, counsel, accountants and experts. The Issuer shall direct the Servicer to indemnify, defend and hold harmless, and the Servicer shall indemnify the Indenture Trustee and its officers, directors, employees and agents against any and all loss, liability, expense, damage or claim (including the fees of either in-house counsel or outside counsel) incurred by it in connection with the administration of this trust and the performance of its duties hereunder and under any other Transaction Document, including any claim arising from any failure by Issuer or Seller to pay when due any sales, excise, transfer or personal taxes relating to the Receivables. The Indenture Trustee 43 shall notify the Issuer and the Servicer promptly of any claim for which it may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer and the Servicer shall not relieve the Issuer or the Servicer of its obligations hereunder unless such loss, liability or expense could have been avoided with such prompt notification and then only to the extent of such loss, expense or liability which could have been so avoided. The Servicer shall defend any claim against the Indenture Trustee, the Indenture Trustee may have separate counsel and, if it does, the Servicer shall pay the fees and expenses of such counsel. Neither the Issuer nor the Servicer need reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through the Indenture Trustee's own willful misconduct or negligence. The Servicer's payment obligations to the Indenture Trustee pursuant to this Section 6.7 shall survive the discharge of this Indenture or earlier ----------- resignation or removal of the Indenture Trustee. When the Indenture Trustee incurs expenses after the occurrence of a Default specified in Section 5.2(c) or ------------- 5.2(d) with respect to the Issuer, the expenses are intended to constitute - ----- expenses of administration under Title 11 of the United States Code or any other applicable federal or state bankruptcy, insolvency or similar law. To secure the Servicer's and Issuer's payment obligations in this Section ------- 6.7, the Indenture Trustee shall have a lien prior to the Notes on all money or - --- property held or collected by the Indenture Trustee, in its capacity as Indenture Trustee, except money or property held in trust to pay principal of, or interest on, the Notes. Section 6.8. Replacement of Indenture Trustee. No resignation or removal of -------------------------------- the Indenture Trustee and no appointment of a successor Indenture Trustee shall become effective until the acceptance of appointment by the successor Indenture Trustee pursuant to this Section 6.8. The Indenture Trustee may resign at any ----------- time by giving thirty (30) days written notice to the Issuer and the Rating Agencies. The Holders of Notes representing more than 66 2/3% of the Outstanding Amount may remove the Indenture Trustee by so notifying the Indenture Trustee in writing and may appoint a successor Indenture Trustee. The Administrator shall remove the Indenture Trustee upon written notice if: (i) the Indenture Trustee fails to comply with Section 6.11; ------------ (ii) the Indenture Trustee is adjudged a bankrupt or insolvent; (iii) a receiver of the Indenture Trustee or of its property shall be appointed, or any public officer takes charge of the Indenture Trustee or its property or its affairs for the purpose of rehabilitation, conservation or liquidation; or 44 (iv) the Indenture Trustee otherwise becomes legally unable to act. If the Indenture Trustee resigns or is removed or if a vacancy exists in the office of Indenture Trustee for any reason (the Indenture Trustee in such event being referred to herein as the retiring Indenture Trustee), the Administrator shall promptly appoint a successor Indenture Trustee. A successor Indenture Trustee shall deliver a written acceptance of its appointment to the retiring Indenture Trustee, the Servicer and to the Issuer. Thereupon the resignation or removal of the retiring Indenture Trustee shall become effective, and the successor Indenture Trustee shall have all the rights, powers and duties of the Indenture Trustee under this Indenture. The successor Indenture Trustee shall mail a notice of its succession to Noteholders. The retiring Indenture Trustee shall promptly transfer all property held by it as Indenture Trustee to the successor Indenture Trustee, subject to the payment of any an all amounts then due and owing to the Indenture Trustee. If a successor Indenture Trustee does not take office within sixty (60) days after the retiring Indenture Trustee resigns or is removed, the retiring Indenture Trustee, the Issuer or the Holders of Notes representing more than 50% of the Outstanding Amount may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee. If the Indenture Trustee fails to comply with Section 6.11, any Noteholder ------------ may petition any court of competent jurisdiction for the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee. Notwithstanding the replacement of the Indenture Trustee pursuant to this Section 6.8, the Issuer's obligations under Section 6.7 shall continue for the - ----------- ----------- benefit of the retiring Indenture Trustee. The Administrator shall notify the Rating Agencies of any replacement of the Indenture Trustee pursuant to this Section 6.8. ----------- Section 6.9. Successor Indenture Trustee by Merger. If the Indenture ------------------------------------- Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Indenture Trustee; provided that such corporation or banking association shall be otherwise qualified and eligible under Section 6.11. The Indenture Trustee shall provide the Rating ------------ Agencies prior written notice of any such transaction. 45 In case at the time such successor or successors by merger, conversion, consolidation or transfer to the Indenture Trustee shall succeed to the trusts created by this Indenture any of the Notes shall have been authenticated but not delivered, any such successor to the Indenture Trustee may adopt the certificate of authentication of any predecessor Indenture Trustee and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Indenture Trustee may authenticate such Notes in the name of the successor to the Indenture Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Indenture Trustee shall have. Section 6.10. Appointment of Co-Indenture Trustee or Separate Indenture --------------------------------------------------------- Trustee. - ------- (a) Notwithstanding any other provisions of this Indenture, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any part of the Collateral may at the time be located, the Indenture Trustee shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as a co-trustee or co-trustees, or separate trustee or separate trustees, of all or any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit of the Noteholders, such title to the Collateral, or any part hereof, and, subject to the other provisions of this Section 6.10, such powers, duties, obligations, rights and ------------ trusts as the Indenture Trustee may consider necessary or desirable. No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 6.11 and no notice to ------------ Noteholders of the appointment of any co-trustee or separate trustee shall be required under Section 6.8. ----------- (b) Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions: (i) all rights, powers, duties and obligations conferred or imposed upon the Indenture Trustee shall be conferred or imposed upon and exercised or performed by the Indenture Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Indenture Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Indenture Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Collateral or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Indenture Trustee; 46 (ii) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; (iii) the Indenture Trustee may at any time accept the resignation of or remove any separate trustee or co-trustee; and (iv) the Indenture Trustee shall not be liable for any act or failure to act on the part of any separate trustee or co-trustee. (c) Any notice, request or other writing given to the Indenture Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture and the conditions of this Article VI. Each separate trustee and co-trustee, upon ---------- its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Indenture Trustee or separately, as may be provided therein, subject to all the provisions of this Indenture, specifically including every provision of this Indenture relating to the conduct of, affecting the liability of, or affording protection to, the Indenture Trustee. Every such instrument shall be filed with the Indenture Trustee. (d) Any separate trustee or co-trustee may at any time constitute the Indenture Trustee, its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Indenture on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Indenture Trustee, to the extent permitted by law, without the appointment of a new or successor trustee. Section 6.11. Eligibility; Disqualification. The Indenture Trustee shall at ----------------------------- all times satisfy the requirements of TIA (S)310(a). The Indenture Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition and either its long-term unsecured debt shall be rated at least A3 by Moody's and BBB- by Standard & Poor's or its short-term debt shall be rated at least P-2 by Moody's or A-2 by Standard & Poor's. The Indenture Trustee shall comply with TIA (S)310(b), including the optional provision permitted by the second sentence of TIA (S)310(b)(9); provided, however, that there shall be excluded from the operation of TIA (S)310(b)(1) any indenture or indentures under which other securities of the Issuer are outstanding if the requirements for such exclusion set forth in TIA (S)310(b)(1) are met. 47 Section 6.12. Preferential Collection of Claims Against. The Indenture ----------------------------------------- Trustee shall comply with TIA ss.311(a), excluding any creditor relationship listed in TIA (S)311(b). An Indenture Trustee who has resigned or been removed shall be subject to TIA (S)311(a) to the extent indicated. Section 6.13. Representations and Covenants of the Indenture Trustee. The ------------------------------------------------------ Indenture Trustee represents, warrants and covenants that: (i) the Indenture Trustee is a banking corporation duly organized and validly existing under the laws of the State of New York; (ii) The Indenture Trustee has full power and authority to deliver and perform this Indenture and has taken all necessary action to authorize the execution, delivery and performance by it of this Indenture and other Transaction Documents to which it is a party; and (iii) Each of this Indenture and the other Transaction Documents to which it is a party has been duly executed and delivered by the Indenture Trustee and constitutes its legal, valid and binding obligation in accordance with its terms. Section 6.14. Custody of the Collateral. The Indenture Trustee shall hold ------------------------- such of the Trust Estate as consists of instruments, deposit accounts, negotiable documents, money, goods, letters of credit, and advices of credit in the State of Illinois. The Indenture Trustee shall hold such of the Trust Estate as constitutes investment property through a securities intermediary, which securities intermediary shall agree with the Indenture Trustee that (a) such investment property shall at all times be credited to a securities account of the Indenture Trustee, (b) such securities intermediary shall treat the Indenture Trustee as entitled to exercise the rights that comprise each financial asset credited to such securities account, (c) all property credited to such securities account shall be treated as a financial asset, (d) such securities intermediary shall comply with entitlement orders originated by the Indenture Trustee without the further consent of any other person or entity, (e) such securities intermediary will not agree with any person or entity other than the Indenture Trustee to comply with entitlement orders originated by such other person or entity, (f) such securities accounts and the property credited thereto shall not be subject to any lien, security interest, or right of set-off in favor of such securities intermediary or anyone claiming through it (other than the Indenture Trustee), and (g) such agreement shall be governed by the laws of the State of Illinois. Terms used in the preceding sentence that are defined in the Illinois UCC and not otherwise defined herein shall have the meaning set forth in the Illinois UCC. Except as permitted by this Section 6.14, the ------------ Indenture Trustee shall not hold any part of the Trust Estate through an agent or a nominee. 48 ARTICLE VII NOTEHOLDERS' LIST AND REPORTS BY INDENTURE TRUSTEE AND ISSUER Section 7.1. Issuer to Furnish Indenture Trustee Names and Addresses of ---------------------------------------------------------- Noteholders. The Issuer will furnish or cause to be furnished to the Indenture - ----------- Trustee (a) upon each transfer of a Note, a list, in such form as the Indenture Trustee may reasonably require, of the names, addresses and taxpayer identification numbers of the Noteholders as they appear on the Note Register as of such Record Date, and (b) at such other times, as the Indenture Trustee may request in writing, within ten (10) days after receipt by the Issuer of any such request, a list of similar form and content as of a date not more than ten (10) days prior to the time such list is furnished; provided, however, that for so -------- ------- long as the Indenture Trustee is the Transfer Agent and Registrar, the Indenture Trustee shall furnish to the Issuer such list in the same manner prescribed in clause (b) above. Section 7.2. Preservation of Information; Communications to Noteholders. ---------------------------------------------------------- (a) The Indenture Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of the Noteholders contained in the most recent list furnished to the Indenture Trustee as provided in Section ------- 7.1 and the names, addresses and taxpayer identification numbers of the - --- Noteholders received by the Indenture Trustee in its capacity as Transfer Agent and Registrar. The Indenture Trustee may destroy any list furnished to it as provided in Section 7.1 upon receipt of a new list so furnished. ----------- (b) Noteholders may communicate, pursuant to TIA (S)312(b), with other Noteholders with respect to their rights under this Indenture or under the Notes. (c) The Issuer, the Indenture Trustee and the Transfer Agent and Registrar shall have the protection of TIA (S)312(c). Section 7.3. Reports by Issuer. ----------------- (a) The Issuer shall: (i) file with the Indenture Trustee, within fifteen (15) days after the Issuer is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Issuer may be required to file with the Commission pursuant to Section 13 or 15(d) of the ---------- ---- Exchange Act; 49 (ii) file with the Indenture Trustee and the Commission in accordance with rules and regulations prescribed from time to time by the Commission such additional information, documents and reports with respect to compliance by the Issuer with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and (iii) supply to the Indenture Trustee (and the Indenture Trustee shall transmit by mail to all Noteholders described in TIA (S)313(c)) such summaries of any information, documents and reports required to be filed by the Issuer pursuant to clauses (i) and (ii) of this Section ------- 7.3(a) as may be required by rules and regulations prescribed from time ----- to time by the Commission. (b) Unless the Issuer otherwise determines, the fiscal year of the Issuer shall end on December 31 of each year. (c) Delivery of such reports, information and documents to the Indenture Trustee is for informational purposes only and the Indenture Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer's compliance with any of the covenants hereunder. Section 7.4. Reports by Indenture Trustee. If required by TIA ---------------------------- (S)313(a), within sixty (60) days after each March 31 beginning with March 31, 2002, the Indenture Trustee shall mail to each Noteholder as required by TIA (S)313(c) a brief report dated as of such date that complies with TIA (S)313(a). The Indenture Trustee also shall comply with TIA (S)313(b). A copy of each report at the time of its mailing to Noteholders shall be filed by the Indenture Trustee with the Commission and each stock exchange, if any, on which the Notes are listed. The Issuer shall notify the Indenture Trustee if and when the Notes are listed on any stock exchange. ARTICLE VIII ALLOCATION AND APPLICATION OF COLLECTIONS Section 8.1. Collection of Money. Except as otherwise expressly ------------------- provided herein and in the related Indenture Supplement, the Indenture Trustee may demand payment or delivery of, and shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary, all money and other property payable to or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture Trustee shall hold all such money and property received by it in trust for the 50 Noteholders and shall apply it as provided in this Indenture. Except as otherwise expressly provided in this Indenture, if any default occurs in the making of any payment or performance under the Transfer and Servicing Agreement or any other Transaction Document, the Indenture Trustee may, and upon the written request of the Holders of Notes representing more than 50% of the principal balance of the Outstanding Notes of the affected Series shall, subject to Sections 6.1(e) and 6.3(d) take such action as may be appropriate to enforce -------------- ----- such payment or performance, including the institution and prosecution of appropriate Proceedings. Any such action shall be without prejudice to any right to claim a Pay Out Event or a Default or Event of Default under this Indenture and to proceed thereafter as provided in Article V. --------- Section 8.2. Rights of Noteholders. The Collateral shall secure the rights --------------------- of the Holders of the Notes of each Series to receive the portion of Collections allocable to the Noteholders of such Series pursuant to this Indenture and the related Indenture Supplement, funds and other property credited to the Collection Account and the Excess Funding Account (or any subaccount thereof) allocable to the Noteholders of such Series pursuant to this Indenture and such Indenture Supplement, funds and other property credited to any related Series Account and funds available pursuant to any related Series Enhancement, it being understood that, except as specifically set forth in the Indenture Supplement with respect thereto, the Notes of any Series or Class shall not be secured by any interest in any Series Account or Series Enhancement pledged for the benefit of any other Series or Class. Section 8.3. Establishment of Collection Account and Excess Funding ------------------------------------------------------ Account. - ------- (a) The Servicer, for the benefit of the Noteholders, shall establish and maintain with the Indenture Trustee or its nominee in the name of the Indenture Trustee, on behalf of the Issuer, a Qualified Account (including any subaccount thereof) bearing a designation clearly indicating that the funds and other property credited thereto are held for the benefit of the Noteholders (the "Collection Account"). The Indenture Trustee shall possess all right, title and ------------------ interest in all monies, instruments, investment property, documents, certificates of deposit and other property credited from time to time to the Collection Account and in all proceeds, earnings, income, revenue, dividends and distributions thereof for the benefit of the Noteholders. The Collection Account shall be under the sole dominion and control of the Indenture Trustee for the benefit of the Noteholders. Except as expressly provided in this Indenture and the Transfer and Servicing Agreement, the Servicer agrees that it shall have no right of setoff or banker's lien against, and no right to otherwise deduct from, any funds held in the Collection Account for any amount owed to it by the Indenture Trustee, the Issuer, any Noteholder or any Series Enhancer. If, at any time, the Collection Account ceases to be a Qualified Account and the same is actually known to a Trustee Officer of 51 the Indenture Trustee, the Indenture Trustee (or the Servicer on its behalf) shall within 15 days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency may consent) establish a new Collection Account meeting the conditions specified above, transfer any monies, documents, instruments, investment property, certificates of deposit and other property to such new Collection Account and from the date such new Collection Account is established, it shall be the "Collection Account." Pursuant to the authority ------------------ granted to the Servicer in Section 3.1(b) of the Transfer and Servicing -------------- Agreement, the Servicer shall have the power, revocable by the Indenture Trustee, to make withdrawals and payments from the Collection Account and to instruct the Indenture Trustee in writing to make withdrawals and payments from the Collection Account for the purposes of carrying out the Servicer's or the Indenture Trustee's duties hereunder and under the Transfer and Servicing Agreement, as applicable. The Servicer shall reduce deposits into the Collection Account payable by the Seller on any Deposit Date to the extent the Seller is entitled to receive funds from the Collection Account on such Deposit Date. Funds on deposit in the Collection Account (other than investment earnings and amounts deposited pursuant to Section 2.6, 6.1, or 7.1 of the Transfer and ----------- --- --- Servicing Agreement or Section 11.2 of this Indenture) shall at the written ------------ direction of the Servicer be invested by the Indenture Trustee or its nominee in Permitted Investments selected by the Servicer. All such Permitted Investments shall be held by the Indenture Trustee for the benefit of the Noteholders pursuant to Sections 6.14 and 6.1(h). Investments of funds representing ------------- ------ Collections collected during any Monthly Period shall be invested in Permitted Investments that will mature so that such funds will be available no later than the close of business on each monthly Transfer Date following such Monthly Period in amounts sufficient to the extent of such funds to make the required distributions on the following Distribution Date. No such Permitted Investment shall be disposed of prior to its maturity; provided, however, that the -------- ------- Indenture Trustee may sell, liquidate or dispose of any such Permitted Investment before its maturity, at the written direction of the Servicer, if such sale, liquidation or disposal would not result in a loss of all or part of the principal portion of such Permitted Investment or if, prior to the maturity of such Permitted Investment, a default occurs in the payment of principal, interest or any other amount with respect to such Permitted Investment. Unless directed by the Servicer in writing, funds deposited in the Collection Account on a Transfer Date with respect to the immediately succeeding Distribution Date are not required to be invested overnight. On each Distribution Date, all interest and other investment earnings (net of losses and investment expenses) on funds on deposit in the Collection Account shall be treated as Collections of Finance Charge Receivables with respect to the last day of the related Monthly Period, except as otherwise specified in any Indenture Supplement. The Indenture Trustee shall bear no responsibility or liability for any losses resulting from investment or reinvestment of any funds in accordance with this Section 8.3 nor ----------- for the selection of Permitted Investments in accordance with the provisions of this Indenture and any Indenture Supplement. 52 (b) The Servicer, for the benefit of the Noteholders, shall establish and maintain with the Indenture Trustee or its nominee in the name of the Indenture Trustee, on behalf of the Issuer, a Qualified Account (including any subaccounts thereof) bearing a designation clearly indicating that the funds and other property credited thereto are held for the benefit of the Noteholders (the "Excess Funding Account"). The Indenture Trustee shall possess all right, title ---------------------- and interest in all monies, instruments, investment property, documents, certificates of deposit and other property credited from time to time to the Excess Funding Account and in all proceeds, dividends distributions, earnings, income and revenue thereof for the benefit of the Noteholders. The Excess Funding Account shall be under the sole dominion and control of the Indenture Trustee for the benefit of the Noteholders. Except as expressly provided in this Indenture and the Transfer and Servicing Agreement, the Servicer agrees that it shall have no right of setoff or banker's lien against, and no right to otherwise deduct from, any funds and other property held in the Excess Funding Account for any amount owed to it by the Indenture Trustee, the Issuer, any Noteholder or any Series Enhancer. If, at any time, the Excess Funding Account ceases to be a Qualified Account and the same is actually known to a Trustee Officer of the Indenture Trustee, the Indenture Trustee (or the Servicer on its behalf) shall within 15 days (or such longer period, not to exceed thirty (30) calendar days, as to which each Rating Agency may consent) establish a new Excess Funding Account meeting the conditions specified above, transfer any monies, documents, instruments, investment property, certificates of deposit and other property to such new Excess Funding Account and from the date such new Excess Funding Account is established, it shall be the "Excess Funding Account." ---------------------- Funds on deposit in the Excess Funding Account shall at the written direction of the Servicer be invested by the Indenture Trustee in Permitted Investments selected by the Servicer. All such Permitted Investments shall be held by the Indenture Trustee or its nominee (including any securities intermediary) for the benefit of the Noteholders pursuant to Sections 6.14 and ------------- 6.1(h). Funds on deposit in the Excess Funding Account on any Distribution Date - ------ will be invested in Permitted Investments that will mature so that such funds will be available no later than the close of business on the next succeeding Transfer Date. No such Permitted Investment shall be disposed of prior to its maturity; provided, however, that the Indenture Trustee may sell, liquidate or -------- ------- dispose of a Permitted Investment before its maturity, at the written direction of the Servicer, if such sale, liquidation or disposal would not result in a loss of all or part of the principal portion of such Permitted Investment or if, prior to the maturity of such Permitted Investment, a default occurs in the payment of principal, interest or any other amount with respect to such Permitted Investment. Unless directed by the Servicer in writing, funds deposited in the Excess Funding Account on a Transfer Date with respect to the immediately succeeding Distribution Date are not required to be invested overnight. On each Distribution Date, all interest and other investment earnings (net of losses and investment expenses) on funds on deposit in the Excess Funding Account shall be treated as 53 Collections of Finance Charge Receivables with respect to the last day of the related Monthly Period except as otherwise specified in the related Indenture Supplement. Section 8.4. Collections and Allocations. From and after the FCMT --------------------------- Termination Date: (a) Collections. The Servicer shall apply or shall instruct the Indenture ----------- Trustee in writing to apply all funds on deposit in the Collection Account as described in this Article VIII and in each Indenture Supplement. Except as ------------ otherwise provided below, the Servicer shall deposit Collections into the Collection Account as promptly as possible after the Date of Processing of such Collections, but in no event later than the second Business Day following the Date of Processing. Subject to the express terms of any Indenture Supplement, but notwithstanding anything else in this Indenture or the Transfer and Servicing Agreement to the contrary, for so long as FCNB shall remain the Servicer and no Servicer Default has occurred and is continuing and either (i) the Servicer provides to the Indenture Trustee a letter of credit or other arrangement covering risk of collection of the Servicer and the Servicer shall have satisfied the Rating Agency Condition with respect to such arrangement or (ii) the Servicer (unless the Rating Agency Condition shall have been satisfied with respect to making monthly deposits) shall have and maintain a certificate of deposit or short-term deposit rating of P-1 by Moody's and of at least A-1 by Standard & Poor's and deposit insurance as required by law and by the FDIC, the Servicer need not make the daily deposits of Collections into the Collection Account as provided in the preceding sentence, but may make a single deposit in the Collection Account in immediately available funds on the Transfer Date following the Monthly Period with respect to which such deposit relates. Notwithstanding anything else in this Indenture or the Transfer and Servicing Agreement to the contrary, with respect to any Monthly Period, whether the Servicer is required to make deposits of Collections pursuant to the first or the second preceding sentence, (i) the Servicer will only be required to deposit Collections into the Collection Account up to the aggregate amount of Collections required to be deposited into any Series Account or, without duplication, distributed on or prior to the related Distribution Date to Noteholders or to any Series Enhancer pursuant to the terms of any Indenture Supplement or Enhancement Agreement, but the Servicer shall account for Collections as if the full deposit had been made and (ii) if at any time prior to such Distribution Date the amount of Collections deposited in the Collection Account exceeds the amount required to be deposited pursuant to clause (i) ---------- above, the Servicer will be permitted to withdraw the excess from the Collection Account and pay such amount to the Holder of the Seller Interest. Subject to the immediately preceding sentence, the Servicer may retain its Servicing Fee with respect to a Series and shall not be required to deposit it in the Collection Account. (b) Series and Seller Allocations. Finance Charge Collections, Collections ----------------------------- of Principal Receivables and Defaulted Receivables will be allocated to each Series of Notes and to the Holders of the Seller Interest in accordance with this Article VIII and ------------ 54 each Indenture Supplement, and amounts so allocated to any Series will not, except as specified in the related Indenture Supplement, be available to the Noteholders of any other Series. All Finance Charge Collections, Collections of Principal Receivables and Defaulted Receivables not so allocated to any Series of Notes shall be allocated and (in the case of Collections) paid to the Holder of the Seller Interest, except as otherwise provided in Section 8.4(g). -------------- (c) Allocation of Collections Between Finance Charge Receivables and ---------------------------------------------------------------- Principal Receivables. On each Business Day, the Servicer shall allocate - --------------------- Collections processed on the Accounts as Finance Charge Collections as set forth in Section 1.3 of the Transfer and Servicing Agreement, or, in the case of ----------- Discount Option Receivables, Finance Charge Collections as set forth in Section ------- 2.8(b) of the Transfer and Servicing Agreement. In addition all Collections - ------ which constitute Net Recoveries, investment earnings (net of investment expenses and losses) on the Collection Account and the Excess Funding Account shall be treated as Finance Charge Collections and allocated accordingly. The balance of the Collections processed on any Business Day shall be allocated to Principal Receivables. (d) Allocation of Collections of Recoveries and Defaulted Amounts. On each ------------------------------------------------------------- Determination Date, the Servicer shall calculate the Investor Default Amount and the amount of Net Recoveries, if any, for the preceding Monthly Period with respect to each Series. (e) Adjustments for Miscellaneous Credits. The Servicer shall be obligated ------------------------------------- to reduce or adjust, as the case may be, on a net basis, the aggregate amount of Principal Receivables used to calculate the Seller Amount as provided in this Section 8.4(e) (a "Credit Adjustment") with respect to any Principal Receivable - -------------- ----------------- (i) which was created in respect of merchandise refused or returned by the Obligor thereunder, (ii) which is reduced by the Servicer by any rebate, refund, chargeback or adjustment, (iii) as to which the Obligor thereunder has asserted a counterclaim or defense and either (x) the Servicer has agreed such counterclaim or defense is valid or (y) a final nonappealable judgment or decree has been entered in favor of such Obligor in respect of such counterclaim or defense by a court or arbitral body having jurisdiction thereof, or (iv) which the Servicer has determined was created through a fraudulent or counterfeit charge, but only if and to the extent such fraudulent or counterfeit charges are not included as charge-offs under the Cardholder Guidelines. In the event that the exclusion of the amount of a Credit Adjustment from the calculation of the Seller Amount would cause the Seller Amount to be less than the Minimum Seller Amount, Seller shall make a deposit, no later than the Business Day following the Date of Processing of such Credit Adjustment, in the Excess Funding Account in immediately available funds, in an amount equal to the Shortfall Amount, after giving effect to such exclusion to the extent Seller has received such funds from 55 FCNB under the Receivables Purchase Agreement and, if Seller has not received such funds, to the extent Seller has funds available for such purpose after amounts payable to Securityholders (as defined in the Receivables Purchase Agreement) have been paid in full. Such deposit shall be applied in accordance with this Article VIII and the Indenture Supplements and treated as a Principal ------------ Collection for all purposes hereof and thereof. Each party hereto agrees that the failure by the Seller to make the deposit beyond the extent it has such funds available for such purpose in accordance with this Section 8.4(e) shall -------------- not give rise to a claim against the Seller for such failure. (f) Net Payments. So long as FCNB is the Servicer and FCNB, as Servicer, ------------ is making daily deposits to the Collection Account in accordance with Section ------- 8.4(a), FCNB, acting as Servicer and as agent for the Holder of the Seller - ------ Interest, may make a net payment to the Collection Account on each Deposit Date in the amount of all Collections received by the Servicer since the previous Deposit Date, minus all amounts payable to the Holder of the Seller Interest on or before such day in accordance with this Article VIII and the Indenture ------------ Supplements. (g) Unallocated Collections; Excess Funding Account. On each Business Day, ----------------------------------------------- Principal Collections allocable to the Seller Interest (including Shared Principal Collections and Excess Finance Charge Collections payable to the Holders of the Seller Interest) in an aggregate amount equal to the Shortfall Amount shall be deposited in the Excess Funding Account. Thereafter, amounts in the Excess Funding Account shall be treated as Shared Principal Collections to the extent that, after giving effect to the application of such amount as Shared Principal Collections to the extent provided in any Indenture Supplement, the Seller Amount would equal or exceed the Minimum Seller Amount. (h) Allocation of Deposit Obligations. If the Seller or the Servicer shall --------------------------------- fail to make any Deposit Obligation, the amount thereof shall first be allocated to reduce the Seller Amount until the Seller Amount equals the Minimum Seller Amount. Any remaining shortfall shall be allocated to each Series ratably based upon a fraction the numerator of which is the Allocation Percentage used by such Series to allocate Default Amounts and the denominator of which is the sum of all such numerators of all Series outstanding (such allocated amount, the "Series Share" of such shortfall). The Series Share of each series that ------------ specifies a Minimum Seller Percentage greater than zero shall be allocated to reduce the Seller Amount and any Collections otherwise allocable to the Seller Amount and the balance on deposit in the Excess Funding Account shall be available on a ratable basis to such Series to cover any shortfalls arising from such failure; provided to the extent the Seller Amount falls below zero, any portion of the Series Share of any such Series that is not covered as described above shall be allocated to such Series. The Series Share of each Series that specifies a Minimum Seller Percentage of zero shall be allocated to such series. 56 Section 8.5. Shared Principal Collections. From and after the FCMT ---------------------------- Termination Date, on each Distribution Date, (a) the Servicer shall allocate Shared Principal Collections (as described below) to each Principal Sharing Series, pro rata, in proportion to the Principal Shortfalls (as described below), if any, with respect to each such Series and (b) the Servicer shall withdraw from the Collection Account an amount equal to the excess, if any, of (i) the aggregate amount for all outstanding Series of Collections of Principal Receivables which the related Indenture Supplements specify are to be treated as "Shared Principal Collections" for such Distribution Date over (ii) the ---------------------------- aggregate amount for all outstanding Series which the related Indenture Supplements specify are "Principal Shortfalls" for such Series and for such -------------------- Distribution Date and shall (A) deposit such funds into the Excess Funding Account in an aggregate amount equal to the Shortfall Amount in accordance with Section 8.4(g) and (B) pay any remaining amount to the Holders of the Seller - -------------- Interest. The Seller may, at its option, instruct the Indenture Trustee in writing to deposit Shared Principal Collections which are otherwise payable to the holders of the Seller Interest pursuant to the provisions set forth above into the Excess Funding Account. Section 8.6. Excess Finance Charge Collections. From and after the FCMT --------------------------------- Termination Date, on each Distribution Date, (a) the Servicer shall allocate Excess Finance Charge Collections (as described below) to each Excess Allocation Series, pro rata, in proportion to the Finance Charge Shortfalls (as described below), if any, with respect to each such Series and (b) the Servicer shall withdraw from the Collection Account an amount equal to the excess, if any, of (x) the aggregate amount for all outstanding Series of Collections of Finance Charge Receivables which the related Supplements specify are to be treated as "Excess Finance Charge Collections" for such Distribution Date over (y) the --------------------------------- aggregate amount for all outstanding Series which the related Supplements specify are "Finance Charge Shortfalls" for such Series and such Distribution ------------------------- Date and shall (A) deposit such funds into the Excess Funding Account in an aggregate amount equal to the Shortfall Amount in accordance with Section 8.4(g) ------ and (b) pay any remaining amount to the holders of the Seller Interest; --- provided, however, that the sharing of Excess Finance Charge Collections among - -------- ------- Series will continue only until such time, if any, at which the Seller shall deliver to the Indenture Trustee an Officer's Certificate to the effect that, in the reasonable belief of the Seller, the continued sharing of Excess Finance Charge Collections among Series would have adverse regulatory implications with respect to the Seller. Notwithstanding the foregoing, a Group of Series may specify in their related Indenture Supplements that Excess Finance Charge Collections from such Series shall be allocated as provided above but only among the Series in such Group. 57 Section 8.7. Allocation of Collateral to Series or Groups. To the extent so -------------------------------------------- provided in the Indenture Supplement for any Series or in an Indenture Supplement otherwise executed pursuant to Section 10.1, Receivables conveyed to ------------ the Issuer pursuant to Section 2.1 of the Transfer and Servicing Agreement and ----------- Receivables conveyed to the Issuer pursuant to Section 2.9 of the Transfer and ----------- Servicing Agreement and all Collections received with respect thereto may be allocated or applied in whole or in part to one or more Series or Groups as may be provided in such Indenture Supplement; provided, however, that any such -------- ------- allocation or application shall be effective only upon satisfaction of the following conditions: (1) on or before the fifth Business Day immediately preceding such allocation, the Servicer shall have given the Indenture Trustee and each Rating Agency written notice of such allocation; (2) the Rating Agency Condition shall have been satisfied with respect to such allocation; and (3) the Servicer shall have delivered to the Indenture Trustee an Officer's Certificate, dated the date of such allocation, to the effect that the Servicer reasonably believes that such allocation will not have an Adverse Effect. Any such Indenture Supplement may provide that (i) such allocation to one or more particular Series or Groups may terminate upon the occurrence of certain events specified therein and (ii) that upon the occurrence of any such event, such assets and any Collections with respect thereto, shall be reallocated to other Series or Groups or to all Series, all as shall be provided in such Indenture Supplement. Section 8.8. Release of Collateral; Eligible Loan Documents. ---------------------------------------------- (a) Upon the written direction of the Issuer, the Indenture Trustee may, and when required by the provisions of this Indenture shall, execute instruments to release property from the lien of this Indenture, or convey the Indenture Trustee's interest in the same, in a manner and under circumstances which are not inconsistent with the provisions of this Indenture. No party relying upon an instrument executed by the Indenture Trustee as provided in this Article VIII ------------ shall be bound to ascertain the Indenture Trustee's authority, inquire into the satisfaction of any conditions precedent or see to the application of any monies. (b) In order to facilitate the servicing of the Receivables by the Servicer, the Indenture Trustee upon Issuer Order shall authorize the Servicer to execute in the name and on behalf of the Indenture Trustee instruments of satisfaction or cancellation, or of partial or full release or discharge, and other comparable instruments with respect to the 58 Receivables (and the Indenture Trustee shall execute any such documents on written request of the Servicer), subject to the obligations of the Servicer under the Transfer and Servicing Agreement. (c) The Indenture Trustee shall, at such time as there are no Notes outstanding, release and transfer, without recourse, all of the Collateral that secured the Notes (other than any cash held for the payment of the Notes pursuant to Section 4.2). The Indenture Trustee shall release property from the ----------- lien of this Indenture pursuant to this Section 8.9(c) only upon receipt of an -------------- Issuer Order accompanied by an Officer's Certificate, an Opinion of Counsel and (if required by the TIA) Independent Certificates in accordance with TIA (S)314(c) and 314(d)(1) meeting the applicable requirements of Section 12.1. ------------ (d) Notwithstanding anything to the contrary in this Indenture, the Transfer and Servicing Agreement and the Trust Agreement, immediately prior to the release of any portion of the Collateral or any funds on deposit in the Series Accounts pursuant to this Indenture, the Indenture Trustee shall at the written request of the Issuer remit to the Seller for its own account any funds that, upon such release, would otherwise be remitted to the Issuer. Section 8.9. Opinion of Counsel. The Indenture Trustee shall receive at ------------------ least seven (7) days notice when requested by the Issuer to take any action pursuant to Section 8.8(a), accompanied by copies of any instruments involved, -------------- and the Indenture Trustee shall also require, as a condition to such action, an Opinion of Counsel, in form and substance reasonably satisfactory to the Indenture Trustee, stating the legal effect of any such action, outlining the steps required to complete the same, and concluding that all conditions precedent to the taking of such action have been complied with and such action will not materially and adversely impair the security for the Notes or the rights of the Noteholders in contravention of the provisions of this Indenture; provided, however, that such Opinion of Counsel shall not be required to express - -------- ------- an opinion as to the fair value of the Collateral. The Indenture Trustee and counsel rendering any such opinion may conclusively rely, without independent investigation, on the accuracy and validity of any certificate or other instrument delivered to the Indenture Trustee in connection with any such action. ARTICLE IX DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS Distributions shall be made to, and reports shall be provided to, Noteholders as set forth in the applicable Indenture Supplement. The identity of the Noteholders with respect to distributions and reports shall be determined according to the immediately preceding Record Date. 59 ARTICLE X SUPPLEMENTAL INDENTURES Section 10.1. Supplemental Indentures Without Consent of Noteholders. ------------------------------------------------------ (a) Without the consent of the Holders of any Notes but with prior notice to each Rating Agency with respect to the Notes of all Series rated by such Rating Agency, the Issuer and the Indenture Trustee, when authorized by an Issuer Order, at any time and from time to time, may enter into one or more indentures supplemental hereto (which shall conform to the provisions of the TIA as in force at the date of the execution thereof), in form satisfactory to the Indenture Trustee, for any of the following purposes: (i) to correct or amplify the description of any property at any time subject to the lien of this Indenture, or better to assure, convey and confirm unto the Indenture Trustee any property subject or required to be subjected to the lien of this Indenture, or to subject to the lien of this Indenture additional property; (ii) to evidence the succession, in compliance with Section ------- 3.11, of another person to the Issuer, and the assumption by any such ---- successor of the covenants of the Issuer contained herein and in the Notes; (iii) to add to the covenants of the Issuer, for the benefit of the Holders of the Notes, or to surrender any right or power herein conferred upon the Issuer; (iv) to convey, transfer, assign, mortgage or pledge any property to or with the Indenture Trustee; (v) to cure any ambiguity, to correct or supplement any provision herein or in any supplemental indenture that may be inconsistent with any other provision herein or in any supplemental indenture or to make any other provisions with respect to matters or questions arising under this Indenture or in any supplemental indenture; provided that such action shall not adversely affect the interests of the -------- Holders of the Notes; (vi) to evidence and provide for the acceptance of the appointment hereunder by a successor indenture trustee with respect to the Notes and to add to or change any of the provisions of this Indenture as shall be necessary to facilitate the administration of the trusts hereunder by more than one indenture trustee, pursuant to the requirements of Article VI; ---------- 60 (vii) to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification of this Indenture under the TIA or under any similar federal statute hereafter enacted and to add to this Indenture such other provisions as may be expressly required by the TIA; (viii) to provide for the issuance of one or more new Series of Notes, in accordance with the provisions of Section 2.12; or ------------ (ix) to provide for the termination of any interest rate swap agreement or other form of credit enhancement or maturity guarantee agreement in accordance with the provisions of the related Indenture Supplement. The Indenture Trustee is hereby authorized to join in the execution of any such supplemental indenture and to make any further appropriate agreements and stipulations that may be therein contained. (b) The Issuer and the Indenture Trustee, when authorized by an Issuer Order, may, also without the consent of any Noteholders of any Series then Outstanding but upon satisfaction of the Rating Agency Condition with respect to the Notes of all Series, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or of modifying in any manner the rights of the Holders of the Notes under this Indenture; provided, -------- however that the Seller shall have delivered to the Owner Trustee and the - ------- Indenture Trustee an Officer's Certificate, dated the date of any such action, stating that all requirements for such amendments contained in the Agreement have been met and the Seller reasonably believes that such action will not have an Adverse Effect. Additionally, notwithstanding the preceding sentence, the Issuer and the Indenture Trustee, when authorized by an Issuer Order, may, without the consent of any Noteholders of any Series then Outstanding or the Series Enhancers for any Series, enter into an indenture or indentures supplemental hereto to add, modify or eliminate such provisions as may be necessary or advisable in order to enable all or a portion of the Issuer (i) to qualify as, and to permit an election to be made to cause the Issuer to be treated as, a "financial asset securitization investment trust" as described in the provisions of Section 860L of the Code, and (ii) to avoid the imposition of state or local income or franchise taxes imposed on the Issuer's property or its income; provided, however, that (i) the Seller delivers to the Indenture Trustee -------- ------- and the Owner Trustee an Officer's Certificate to the effect that the proposed amendments meet the requirements set forth in this Section 10.1(b), (ii) the --------------- Rating Agency Condition will have been satisfied and (iii) such amendment does not affect the rights, duties, protections, indemnities, immunities or obligations of the Indenture Trustee or the Owner Trustee hereunder. The amendments which the Seller may make without the consent of Noteholders pursuant to the preceding sentence may include the addition or sale of Receivables. 61 Section 10.2. Supplemental Indentures with Consent of Noteholders. The --------------------------------------------------- Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may, upon satisfaction of the Rating Agency Condition and with the consent of the Holders of Notes representing more than 66-2/3% of the principal balance of the Outstanding Notes of each adversely affected Series, by Act of such Holders delivered to the Issuer and the Indenture Trustee, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of such Noteholders under this Indenture; provided, however that no such supplemental indenture shall, without the consent - -------- ------- of the Holder of each outstanding Note affected thereby: (a) change the due date of any installment of principal of or interest on any Note, or reduce the principal amount thereof, the interest rate specified thereon or the redemption price with respect thereto or change any place of payment where, or the coin or currency in which, any Note or any interest thereon is payable; (b) impair the right to institute suit for the enforcement of the provisions of this Indenture requiring the application of funds available therefor, as provided in Article V, to the payment of any such amount due on the --------- Notes on or after the respective due dates thereof (or, in the case of redemption, on or after the Redemption Date); (c) reduce the percentage of the Outstanding Notes of any Series the consent of the Holders of which is required for any such supplemental indenture, or the consent of the Holders of which is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences as provided for in this Indenture; (d) reduce the percentage of the Outstanding Notes of any Series, the consent of the Holders of which is required to direct the Indenture Trustee to sell or liquidate the Collateral if the proceeds of such sale would be insufficient to pay the principal amount and accrued but unpaid interest on the outstanding Notes of such Series; (e) decrease the percentage of the Outstanding Notes required to amend the sections of this Indenture which specify the applicable percentage of the Outstanding Notes of any Series necessary to amend the Indenture or any Transaction Documents which require such consent; (f) modify or alter the provisions of this Indenture prohibiting the voting of Notes held by the Issuer, any other Obligor on the Notes, a Seller or any affiliate thereof; or 62 (g) permit the creation of any Lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Collateral for any Notes or, except as otherwise permitted or contemplated herein, terminate the Lien of this Indenture on any such Collateral at any time subject hereto or deprive the Holder of any Note of the security provided by the Lien of this Indenture. The Indenture Trustee may in its discretion determine whether or not any Notes would be affected by any supplemental indenture and any such determination shall be conclusive upon the Holders of all Notes, whether theretofore or thereafter authenticated and delivered hereunder. The Indenture Trustee shall not be liable for any such determination made in good faith. Satisfaction of the Rating Agency Condition shall not be required with respect to the execution of any supplemental indenture pursuant to this Section ------- 10.2 for which the consent of all of the affected Noteholders is required. - ---- It shall not be necessary for any Act of Noteholders under this Section ------- 10.2 to approve the particular form of any proposed supplemental indenture, but - ---- it shall be sufficient if such Act shall approve the substance thereof. Promptly after the execution by the Issuer and the Indenture Trustee of any supplemental indenture pursuant to this Section 10.2, the Indenture Trustee ------------ shall mail to the Holders of the Notes to which such amendment or supplemental indenture relates written notice setting forth in general terms the substance of such supplemental indenture. Any failure of the Indenture Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture. Section 10.3. Execution of Supplemental Indentures. In executing, or ------------------------------------ permitting the additional trusts created by, any supplemental indenture permitted by this Article X or the modification thereby of the trusts created by --------- this Indenture, the Indenture Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and stating that all requisite consents have been obtained or that no consents are required and stating that such supplemental indenture or modification constitutes the legal, valid and binding obligation of the Issuer in accordance with its terms. The Indenture Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Indenture Trustee's own rights, duties, liabilities or immunities under this Indenture or otherwise. 63 Section 10.4. Effect of Supplemental Indenture. Upon the execution of any -------------------------------- supplemental indenture under this Article X, this Indenture shall be modified in --------- accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes, and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. This Section 10.4 ------------ does not apply to Indenture Supplements. Section 10.5. Conformity With Trust Indenture Act. Every amendment of ----------------------------------- this Indenture and every supplemental indenture executed pursuant to this Article X shall conform to the requirements of the TIA as then in effect so long - --------- as this Indenture shall then be qualified under the TIA. Section 10.6. Reference in Notes to Supplemental Indentures. Notes --------------------------------------------- authenticated and delivered after the execution of any supplemental indenture pursuant to this Article X may, and if required by the Indenture Trustee shall, --------- bear a notation in form approved by the Indenture Trustee as to any matter provided for in such supplemental indenture. If the Issuer shall so determine, new Notes so modified as to conform, in the opinion of the Indenture Trustee and the Issuer, to any such supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for the outstanding Notes. ARTICLE XI TERMINATION Section 11.1. Termination of Issuer. The Issuer and the respective --------------------- obligations and responsibilities of the Indenture Trustee created hereby (other than the obligation of the Indenture Trustee to make payments to Noteholders as hereinafter set forth) shall terminate, except with respect to the duties described in Section 11.2(b), as provided in the Trust Agreement. --------------- Section 11.2. Final Distribution. ------------------ (a) The Servicer shall give the Indenture Trustee and the Rating Agencies at least thirty (30) days prior written notice of the Distribution Date on which the Noteholders of any Series or Class may surrender their Notes for payment of the final distribution on and cancellation of such Notes (or, in the event of a final distribution resulting from the application of Section 2.6 of ----------- the Transfer and Servicing Agreement, notice of such Distribution Date promptly after the Servicer has determined that a final distribution will occur, if such determination is made less than thirty (30) days prior to such Distribution Date). Such notice shall be accompanied by an Officer's Certificate setting forth the information specified in Section 3.5 of the Transfer and Servicing ----------- Agreement covering the period during the then-current calendar year 64 through the date of such notice. Not later than the fifth day of the month in which the final distribution in respect of such Series or Class is payable to Noteholders, the Indenture Trustee shall provide notice to Noteholders of such Series or Class specifying (i) the date upon which final payment of such Series or Class will be made upon presentation and surrender of Notes of such Series or Class at the office or offices therein designated, (ii) the amount of any such final payment and (iii) that the Record Date otherwise applicable to such payment date is not applicable, payments being made only upon presentation and surrender of such Notes at the office or offices therein specified (which in the case of Bearer Notes shall be outside the United States). The Indenture Trustee shall give such notice to the Transfer Agent and Registrar and the Paying Agent at the time such notice is given to Noteholders. (b) Notwithstanding a final distribution to the Noteholders of any Series or Class (or the termination of the Issuer), except as otherwise provided in this paragraph, all funds then on deposit in the Collection Account and any Series Account allocated to such Noteholders shall continue to be held in trust for the benefit of such Noteholders and the Paying Agent or the Indenture Trustee shall pay such funds to such Noteholders upon surrender of their Notes, if certificated (and any excess shall be paid in accordance with the terms of any Enhancement Agreement). In the event that all such Noteholders shall not surrender their Notes for cancellation within six (6) months after the date specified in the notice from the Indenture Trustee described in paragraph (a), the Indenture Trustee shall give a second notice to the remaining such Noteholders to surrender their Notes for cancellation and receive the final distribution with respect thereto (which surrender and payment, in the case of Bearer Notes, shall be outside the United States). If within one year after the second notice all such Notes shall not have been surrendered for cancellation, the Indenture Trustee may take appropriate steps, or may appoint an agent to take appropriate steps, to contact the remaining such Noteholders concerning surrender of their Notes, and the cost thereof shall be paid out of the funds in the Collection Account or any Series Account held for the benefit of such Noteholders. The Indenture Trustee and, upon the written request of the Servicer, the Paying Agent shall pay to the Issuer any monies held by them for the payment of principal or interest that remains unclaimed for two (2) years. After payment to the Issuer, Noteholders entitled to the money must look to the Issuer for payment as general creditors unless an applicable abandoned property law designates another Person. Section 11.3. Issuer's Termination Rights. Upon the termination of the --------------------------- Issuer pursuant to the terms of the Trust Agreement and upon the written direction of the Issuer, the Indenture Trustee shall assign and convey to the Holders of the Seller Interest or any of their designees, without recourse, representation or warranty, all right, title and interest of the Issuer in the Receivables, whether then existing or thereafter created, all Recoveries related thereto all monies due or to become due and all amounts received or receivable with respect thereto (including all moneys then 65 held in the Collection Account or any Series Account) and all proceeds thereof, except for amounts held by the Indenture Trustee pursuant to Section 11.2(b). --------------- The Indenture Trustee shall execute and deliver such instruments of transfer and assignment, in each case without recourse, as shall be reasonably requested in writing by the Holders of the Seller Interest to vest in the Holders of the Seller Interest or any of their designees all right, title and interest which the Indenture Trustee had in the Collateral and such other property. ARTICLE XII MISCELLANEOUS Section 12.1. Compliance Certificates and Opinions etc. ---------------------------------------- (a) Upon any application or request by the Issuer to the Indenture Trustee to take any action under any provision of this Indenture, the Issuer shall furnish to the Indenture Trustee (i) an Officer's Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and (ii) (if required by the TIA) an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of this Section 12.1, except that, in the case of any ------------ such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (i) a statement that each signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of each such signatory, such signatory has made such examination or investigation as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with. 66 (b) Other than with respect to the release of any Receivables in Removed Accounts, whenever any property or investment property is to be released from the lien of this Indenture, the Issuer shall also furnish to the Indenture Trustee an Officer's Certificate certifying or stating the opinion of each person signing such certificate as to the fair value (within ninety (90) days of such release) of the property or securities proposed to be released and stating that in the opinion of such person the proposed release will not impair the security under this Indenture in contravention of the provisions hereof. (i) Notwithstanding any other provision of this Section 12.1, the ------------ Issuer may (A) collect, liquidate, sell or otherwise dispose of Receivables as and to the extent permitted or required by the Transaction Documents and (B) make cash payments out of the Series Accounts as and to the extent permitted or required by the Transaction Documents. Section 12.2. Form of Documents Delivered to Indenture Trustee. In any case ------------------------------------------------ where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of a Responsible Officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which such officer's certificate or opinion is based are erroneous. Any such certificate of a Responsible Officer or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Servicer, a Seller, the Issuer or the Administrator, stating that the information with respect to such factual matters is in the possession of the Servicer, a Seller, the Issuer or the Administrator, unless such Responsible Officer or Counsel has actual knowledge that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two (2) or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. 67 Whenever in this Indenture, in connection with any application or certificate or report to the Indenture Trustee, it is provided that the Issuer shall deliver any document as a condition of the granting of such application, or as evidence of the Issuer's compliance with any term hereof, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such certificate or report (as the case may be), of the facts and opinions stated in such document shall in such case be conditions precedent to the right of the Issuer to have such application granted or to the sufficiency of such certificate or report. The foregoing shall not, however, be construed to affect the Indenture Trustee's right to conclusively rely upon the truth and accuracy of any statement or opinion contained in any such document as provided in Article VI. ---------- Section 12.3. Acts of Noteholders. ------------------- (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Noteholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by their agents duly appointed in writing and satisfying any requisite percentages as to minimum number or dollar value of outstanding principal amount represented by such Noteholders; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Indenture Trustee, and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Noteholders --- signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in this Section 12.3. ------------ (b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner which the Indenture Trustee deems sufficient. (c) The ownership of Notes shall be proved by the Note Register. (d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Notes shall bind the Holder (and any transferee thereof) of every Note issued upon the registration thereof in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Indenture Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Note. 68 Section 12.4. Notices, Etc. to Indenture Trustee and Issuer. Any request, --------------------------------------------- demand, authorization, direction, notice, consent, waiver or Act of Noteholders or other documents provided or permitted by the Agreement to be made upon, given or furnished to, or filed with: (a) the Indenture Trustee by any Noteholder or by the Issuer shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to a Trustee Officer, by facsimile transmission or by other means acceptable to the Indenture Trustee to or with the Indenture Trustee at its Corporate Trust Office; or (b) the Issuer by the Indenture Trustee or by any Noteholder shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to the Issuer addressed to it and received by it c/o Bankers Trust Company, Four Albany Street, 10th Floor, New York, New York 10006, Attn: Corporate Trust and Agency Services, or at any other address previously furnished in writing to the Indenture Trustee by the Issuer. A copy of each notice to the Issuer shall be sent in writing and mailed, first-class postage prepaid, to the Administrator at First Consumers National Bank, 9300 S.W. Gemini Drive, Beaverton, Oregon 97008, Attn.: President. Section 12.5. Notices to Noteholders; Waiver. Where the Indenture provides ------------------------------ for notice to Noteholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed by registered or certified mail or first class postage prepaid or national overnight courier service to each Noteholder affected by such event, at its address as it appears on the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Noteholders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Noteholder shall affect the sufficiency of such notice with respect to other Noteholders, and any notice which is mailed in the manner herein provided shall conclusively be presumed to have been duly given. Where this Indenture provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Noteholders shall be filed with the Indenture Trustee but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In the event that, by reason of the suspension of regular mail service as a result of a strike, work stoppage or similar activity, it shall be impractical to mail notice of any event to Noteholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be 69 satisfactory to the Indenture Trustee shall be deemed to be a sufficient giving of such notice. Where this Indenture provides for notice to any Rating Agency, failure to give such notice shall not affect any other rights or obligations created hereunder and shall not under any circumstance constitute a Default or Event of Default. Section 12.6. Alternate Payment and Notice Provisions. Notwithstanding any --------------------------------------- provision of this Indenture or any of the Notes to the contrary, the Issuer, with the prior written consent of the Indenture Trustee, may enter into any agreement with any Holder of a Note providing for a method of payment, or notice by the Indenture Trustee or any Paying Agent to such Holder, that is different from the methods provided for in this Indenture for such payments or notices. The Issuer will furnish to the Indenture Trustee a copy of each such agreement and the Indenture Trustee will cause payments to be made and notices to be given in accordance with such agreements. Section 12.7. Conflict with Trust Indenture Act. If any provision hereof --------------------------------- limits, qualifies or conflicts with another provision hereof that is required to be included in this indenture by any of the provisions of the TIA, such required provision shall control. The provisions of TIA (S)(S)310 through 317 that impose duties on any person (including the provisions automatically deemed included herein unless expressly excluded by this Indenture) are a part of and govern this Indenture, whether or not physically contained herein. Section 12.8. Effect of Headings and Table of Contents. The Article and ---------------------------------------- Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Section 12.9. Successors and Assigns. All covenants and agreements in this ---------------------- Indenture by the Issuer shall bind its successors and assigns, whether so expressed or not. Section 12.10. Separability. In case any provision in this Indenture or in ------------ the Notes shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 12.11. Benefits of Indenture. Nothing in this Indenture or in the --------------------- Notes, express or implied, shall give to any Person, other than the parties hereto and 70 their successors hereunder, and the Noteholders, the Servicer and the Seller, any benefit. Section 12.12. Legal Holidays. In any case where the date on which any -------------- payment is due shall not be a Business Day, then (notwithstanding any other provision of the Notes or this Indenture) payment need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date on which nominally due, and no interest shall accrue for the period from and after any such nominal date. Section 12.13. GOVERNING LAW. THIS INDENTURE AND EACH NOTE SHALL BE ------------- CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN; PROVIDED, HOWEVER, THAT THE DUTIES AND OBLIGATIONS OF THE INDENTURE TRUSTEE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CHOICE OF LAW PROVISIONS. Section 12.14. Counterparts. This Indenture may be executed in any number ------------ of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Section 12.15. Issuer Obligation. No recourse may be taken, directly or ----------------- indirectly, with respect to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under this Indenture or any certificate or other writing delivered in connection herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee or agent of the Indenture Trustee or the Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Owner Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity. For all purposes of this Indenture, in the performance of any duties or obligations of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Articles V, VI and VII of the Trust Agreement. ---------- -- --- 71 Section 12.16. No Petition. The Indenture Trustee, by entering into ----------- this Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree that they will not at any time institute against the Issuer, First Consumers Master Trust or the Seller, or join in instituting against the Issuer, First Consumers Master Trust or the Seller any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States federal or state bankruptcy or similar law. 72 IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this Indenture to be duly executed by their respective officers thereunto duly authorized and attested, all as of the day and year first above written. FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST, as Issuer By: Bankers Trust Company, not in its individual capacity, but solely as Owner Trustee By: /s/ Eileen M. Hughes -------------------- Name: Eileen M. Hughes Title: Vice President THE BANK OF NEW YORK, as Indenture Trustee By: /s/ Greg Anderson --------------------- Name: Greg Anderson Title: Authorized Agent Acknowledged and Accepted: FIRST CONSUMERS NATIONAL BANK, as Servicer By: /s/ John R. Steele ------------------ Name: John R. Steele Title: Treasurer FIRST CONSUMERS CREDIT CORPORATION, as Seller By: /s/ John R. Steele ------------------ Name: John R. Steele Title: Treasurer First Consumers Credit Card Master Note Trust 73 Master Indenture Signature Page 74 ANNEX A to MASTER INDENTURE DEFINITIONS ----------- 75 ANNEX B to MASTER INDENTURE PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS (A) Effective on the RPA Closing Date, in addition to the representations, warranties and covenants contained in the Master Indenture, Issuer hereby represents, warrants and covenants to the Indenture Trustee as follows: (1) The Master Indenture creates a valid and continuing security interest (as defined in the applicable UCC) in (i) the Collateral Certificate and (ii) Permitted Investments (the Collateral Certificate and Permitted Investments together, the "Collateral" for the purposes of this paragraph (A)) ---------- ------------- in favor of the Indenture Trustee, which security interest is prior to all other Liens, and is enforceable as such against creditors of and purchasers from the Issuer (other than Liens permitted pursuant to paragraph (A)(3) below). (2) The Collateral Certificate constitutes a "certificated security," "instrument" or "general intangible" within the meaning of the applicable UCC. The Permitted Investments constitute "instruments," "payment intangibles," "uncertificated securities" or "deposit accounts" under the applicable UCC. (3) Issuer owns and has good and marketable title to the Collateral free and clear of any Lien, claim or encumbrance of any Person; provided that nothing in this paragraph 3 shall prevent or be deemed to prohibit Issuer from suffering to exist upon any of the Collateral any Liens for any taxes if such taxes shall not at the time be due and payable or if FCNB or Issuer, as applicable, shall currently be contesting the validity thereof in good faith by appropriate proceedings and shall have set aside on its books adequate reserves with respect thereto. Issuer has received all consents and approvals required by the terms of the Collateral to the sale of the Collateral hereunder to the Indenture Trustee. (4) (a) If perfection is by filing (i) Issuer has caused, or will have caused within 10 days, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Collateral granted to the Indenture Trustee under the Master Indenture. (b) If perfection is by possession, all original executed copies of each mortgage note, promissory note or security certificate that constitute or evidence the Collateral have been delivered to the Indenture Trustee. Each security certificate either (i) is in bearer form, (ii) has been indorsed, by an effective indorsement, to the Indenture Trustee or in blank or (iii) has been registered in the name of the Indenture Trustee. (c) With regard to 76 Permitted Investments that constitute "deposit accounts" within the meaning of the applicable UCC (the "deposit accounts"), Issuer has delivered to the ---------------- Indenture Trustee a fully executed agreement pursuant to which the bank maintaining the deposit accounts has agreed to comply with all instructions originated by the Indenture Trustee directing disposition of the funds in such deposit accounts without further consent by the Issuer, or Issuer has taken all steps necessary to cause Indenture Trustee to become the account holder of the deposit accounts. (d) If perfection is by control, with regard to Permitted Investments that constitute "uncertificated securities" within the meaning of the applicable UCC, each issuer of Permitted Investments that constitutes an uncertificated security has registered the Indenture Trustee as the registered owner, or the Issuer is the registered owner of such uncertificated security and has agreed in writing that it will comply with instructions originated by the Indenture Trustee without further consent by the Issuer. (5) Other than the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Master Indenture, Issuer has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Collateral. Issuer has not authorized the filing of and is not aware of any financing statements against Issuer that include a description of collateral covering the Collateral. (a) If perfection is by filing, Issuer has in its possession all original copies of the mortgage notes, promissory notes or security certificates that constitute or evidence the Collateral. The mortgage notes, promissory notes or security certificates that constitute or evidence the Collateral do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Indenture Trustee. All financing statements to be filed against the Issuer in favor of the Indenture Trustee in connection herewith describing the Collateral will contain a statement to the effect that "A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Indenture Trustee". (b) If perfection is by possession, none of the mortgage notes, promissory notes or security certificates that constitute or evidence the Collateral has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Indenture Trustee. With regard to deposit accounts, the deposit accounts are not in the name of any Person other than the Issuer or the Indenture Trustee. The Issuer has not consented to the bank maintaining the deposit accounts to comply with instructions of any Person other than the Indenture Trustee. (6) Issuer is not aware of any judgment, ERISA or tax lien filings against Issuer. (7) Notwithstanding any other provision of the Master Indenture, the representations and warranties set forth in this Annex B shall be continuing, ------- and remain in full force and effect, until such time as all Notes have been finally and fully paid. The parties hereto shall not, without satisfying the Rating Agency Condition, waive a breach 77 of any representation or warranty set forth in this Annex B. In order to ------- evidence the interests of Issuer and the Indenture Trustee under the Master Indenture, Issuer and Servicer shall take such action, or execute and deliver such instruments (other than filing financing statements) as may be necessary or advisable (including, without limitation, such actions as are requested by Indenture Trustee) to maintain and perfect, as a first priority interest, Issuer's or the Indenture Trustee's security interest in the Collateral. The Servicer shall, from time to time and within the time limits established by law, prepare and present to the Indenture Trustee for the Indenture Trustee's authorization and approval all financing statements, amendments, continuations or initial financing statements in lieu of a continuation statement, or other filings necessary to continue, maintain and perfect as a first-priority interest. The Indenture Trustee's approval of such filings shall authorize the Servicer to file such financing statements under the applicable UCC without the signature of Issuer or Indenture Trustee where allowed by applicable law. Notwithstanding anything else in the Master Indenture to the contrary, the Servicer shall not have any authority to file a termination, partial termination, release, partial release, or any amendment that deletes the name of a debtor or excludes collateral of any such financing statements, without the prior written consent of the Indenture Trustee. The Indenture Trustee may require, prior to authorizing or filing any such termination, partial termination, release, partial release or amendment, that Servicer provide an Opinion of Counsel that such filings are authorized under the Master Indenture. (B) Effective on the FCMT Termination Date and on each Closing Date with respect to each Series, in addition to the representations, warranties and covenants contained in the Master Indenture, Issuer hereby represents, warrants and covenants to the Indenture Trustee as follows: (1) The Master Indenture creates a valid and continuing security interest (as defined in the applicable UCC) in (i) the Receivables conveyed (whether as a valid transfer or as a grant of a security interest) to the Issuer pursuant to the Servicing Agreement, (ii) all rights to security for such Receivables (including without limitation rights to bank accounts or certificates of deposit pledged as collateral) conveyed (whether as a valid transfer or as a grant of a security interest) to the Issuer pursuant to the Servicing Agreement (the "Obligor Collateral") and (iii) Permitted Investments ------------------ (the Obligor Collateral and Permitted Investments together with the Receivables, the "Collateral" for the purposes of this paragraph (B)) in favor of the ---------- ------------- Indenture Trustee, which security interest is prior to all other Liens, and is enforceable as such against creditors of and purchasers from the Issuer (other than Liens permitted pursuant to paragraph (B)(3) below). (2) The Receivables constitute "accounts" within the meaning of the applicable UCC. The Obligor Collateral constitutes security interests on personal property securing certain of those accounts, and the creation and perfection of a security interest in such security interests is governed by Sections 9-203(g) and 9-308(e), 78 respectively, of the applicable UCC. The Permitted Investments constitute "instruments," "payment intangibles," "uncertificated securities" or "deposit accounts" under the applicable UCC. (3) Immediately prior to the grant of the security interest in the Collateral pursuant to the Master Indenture, Issuer owns and has good and marketable title to the Collateral, and a valid, perfected security interest in the collateral for the Receivables in any secured Accounts, in each case, free and clear of any Lien, claim or encumbrance of any Person; provided that nothing in this paragraph 3 shall prevent or be deemed to prohibit Issuer from suffering to exist upon any of the Collateral any Liens for any taxes if such taxes shall not at the time be due and payable or if FCNB or Issuer, as applicable, shall currently be contesting the validity thereof in good faith by appropriate proceedings and shall have set aside on its books adequate reserves with respect thereto. Issuer has received all consents and approvals required by the terms of the Collateral to the grant of the security interest in the Collateral hereunder to the Indenture Trustee. (4) (a) If perfection is by filing (i) Issuer has caused, or will have caused within 10 days, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Collateral granted to the Indenture Trustee under the Master Indenture. (b) If perfection is by possession, all original executed copies of each mortgage note, promissory note or security certificate that constitute or evidence the Collateral have been delivered to the Indenture Trustee. Each security certificate either (i) is in bearer form, (ii) has been indorsed, by an effective indorsement, to the Indenture Trustee or in blank or (iii) has been registered in the name of the Indenture Trustee. (c) With regard to Permitted Investments that constitute "deposit accounts" within the meaning of the applicable UCC (the "deposit ------- accounts"), Issuer has delivered to the Indenture Trustee a fully executed - -------- agreement pursuant to which the bank maintaining the deposit accounts has agreed to comply with all instructions originated by the Indenture Trustee directing disposition of the funds in such deposit accounts without further consent by the Issuer, or Issuer has taken all steps necessary to cause Indenture Trustee to become the account holder of the deposit accounts. (d) If perfection is by control, with regard to Permitted Investments that constitute "uncertificated securities" within the meaning of the applicable UCC, each issuer of Permitted Investments that constitutes an uncertificated security has registered the Indenture Trustee as the registered owner, or the Issuer is the registered owner of such uncertificated security and has agreed in writing that it will comply with instructions originated by the Indenture Trustee without further consent by the Issuer. (5) Other than the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Master Indenture, Issuer has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Collateral. Issuer has not authorized the filing of and is not aware of any financing statements against 79 Issuer that include a description of collateral covering the Collateral. (a) If perfection is by filing, Issuer has in its possession all original copies of the mortgage notes, promissory notes or security certificates that constitute or evidence the Collateral. The mortgage notes, promissory notes or security certificates that constitute or evidence the Collateral do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Indenture Trustee. All financing statements to be filed against the Issuer in favor of the Indenture Trustee in connection herewith describing the Collateral will contain a statement to the effect that "A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Indenture Trustee". (b) If perfection is by possession, none of the mortgage notes, promissory notes or security certificates that constitute or evidence the Collateral has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Indenture Trustee. With regard to deposit accounts, the deposit accounts are not in the name of any Person other than the Issuer or the Indenture Trustee. The Issuer has not consented to the bank maintaining the deposit accounts to comply with instructions of any Person other than the Indenture Trustee. (6) Issuer is not aware of any judgment, ERISA or tax lien filings against Issuer. (7) Notwithstanding any other provision of the Master Indenture, the representations and warranties set forth in this Annex B shall be continuing, ------- and remain in full force and effect, until such time as all Notes have been finally and fully paid. The parties hereto shall not, without satisfying the Rating Agency Condition, waive a breach of any representation or warranty set forth in this Annex B. In order to evidence the interests of Issuer and the ------- Indenture Trustee under the Master Indenture, Issuer and Servicer shall take such action, or execute and deliver such instruments (other than filing financing statements) as may be necessary or advisable (including, without limitation, such actions as are requested by Indenture Trustee) to maintain and perfect, as a first priority interest, Issuer's or the Indenture Trustee's security interest in the Collateral. The Servicer shall, from time to time and within the time limits established by law, prepare and present to the Indenture Trustee for the Indenture Trustee's authorization and approval all financing statements, amendments, continuations or initial financing statements in lieu of a continuation statement, or other filings necessary to continue, maintain and perfect as a first-priority interest. The Indenture Trustee's approval of such filings shall authorize the Servicer to file such financing statements under the applicable UCC without the signature of Issuer or Indenture Trustee where allowed by applicable law. Notwithstanding anything else in the Master Indenture to the contrary, the Servicer shall not have any authority to file a termination, partial termination, release, partial release, or any amendment that deletes the name of a debtor or excludes collateral of any such financing statements, without the prior written consent of the Indenture Trustee. The Indenture Trustee may require, prior to authorizing or filing any such termination, 80 partial termination, release, partial release or amendment, that Servicer provide an Opinion of Counsel that such filings are authorized under the Master Indenture. 81 ANNEX A TO MASTER INDENTURE DEFINITIONS "Account" means each MasterCard(R) or VISA(R)* credit card account ------- established pursuant to a Cardholder Agreement, and which is designated as an "Account" pursuant to (and as defined in) the Pooling and Servicing Agreement on or prior to the FCMT Termination Date. The term "Account" shall also be deemed to refer to an Additional Account, but only from and after the Addition Date with respect thereto, and the term "Account" shall be deemed to refer to any Removed Account prior to but not after the Removal Date with respect thereto. "Acquiring Person" is defined in Section 3.10(b) of the Indenture. ---------------- --------------- "Act" is defined in Section 12.3(a) of the Indenture. --- --------------- "Addition Date" means, with respect to any Additional Accounts, either the ------------- date five Business Days after the period or date when such Additional Accounts are required or permitted to be added as Accounts pursuant to Section 2.6(a) or -------------- (b) of the Transfer and Servicing Agreement, or the date on which such - --- Additional Accounts are automatically added as Accounts pursuant to Section ------- 2.6(e) of the Transfer and Servicing Agreement. - ------ "Additional Accounts" means the Accounts the receivables arising under ------------------- which are transferred to the Issuer in accordance with the procedures set forth in Section 2.6 of the Transfer and Servicing Agreement. ----------- "Adjusted Collateral Amount" is defined, with respect to any Series (if -------------------------- applicable to that Series), in the related Indenture Supplement, or if no meaning for such term is specified in such Supplement, shall mean the Collateral Amount for such Series. "Administration Agreement" means the Administration Agreement, dated as of ------------------------ March 1, 2001, and amended and restated as of December 31, 2001 between the Issuer and the Administrator, as the same may be amended, supplemented or otherwise modified from time to time. - ---------- * MasterCard is a registered trademark of MasterCard International Incorporated and VISA is a registered trademark of VISA U.S.A., Inc. "Administrator" means FCNB, its capacity as administrator, under the ------------- Administration Agreement, and any successor in that capacity. "Adverse Effect" means, with respect to any action, that such action will -------------- (a) result in the occurrence of a Pay Out Event or an Event of Default or (b) materially and adversely affect the amount or timing of distributions to be made to the Noteholders of any Series or Class pursuant to the Transaction Documents. "Affiliate" means, with respect to any specified Person, any other Person --------- controlling or controlled by or under common control with such specified Person. For the purposes of this definition, "control" means the power to direct the management and policies of a Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Aggregate Allocation Percentage" with respect to Principal Receivables, ------------------------------- Finance Charge Receivables and Receivables in Defaulted Accounts, as the case may be, means, as of any date of determination, the sum of such Allocation Percentages of all Series issued and outstanding on such date of determination; provided, however, that the Aggregate Allocation Percentage shall not exceed - -------- ------- 100%. "Aggregate Collateral Amount" means, as of any date of determination, the --------------------------- sum of the Adjusted Collateral Amounts of all Series issued and outstanding on such date of determination. "Aggregate Principal Balance" means, as of any time of determination, the --------------------------- sum of (a) the Aggregate Principal Receivables, (b) the Excess Funding Amount (exclusive of any investment earnings on such amount) and (c) the amount on deposit in the Principal Collection Subaccount (exclusive of any investment earnings on such amount), in each case as of such time. "Aggregate Principal Receivables" means, as of any date of determination, ------------------------------- the aggregate amount of Principal Receivables (excluding any Discount Option Receivables) as of the end of the prior day. "Allocation Percentage" is defined, for any Series, with respect to --------------------- Principal Receivables, Finance Charge Receivables and Receivables in Defaulted Accounts, in the related Indenture Supplement. "Annual Account Additions" means on any date of determination, the number ------------------------ of Accounts the Receivables of which have been added to the Receivables Trust pursuant to Sections 2.6(a), (b) and (e) of the Transfer and Servicing Agreement --------------- --- --- or the corresponding sections of the Pooling and Servicing Agreement, from and -2- including the first day of the eleventh Monthly Period preceding such date of determination. "Annual Quotient" is defined in Section 2.6(c)(ii)(1) of the Transfer and --------------- --------------------- Servicing Agreement. "Applicants" is defined in Section 2.9 of the Indenture. ---------- ----------- "Assignee Seller" is defined in Section 6.6 of the Receivables Purchase --------------- ----------- Agreement. "Assignment Agreement" is defined in Section 2.6(b)(iii) of the Transfer -------------------- ------------------- and Servicing Agreement. "Assignor Seller" is defined in Section 6.6 of the Receivables Purchase --------------- ----------- Agreement. "Authorized Newspapers" means each newspaper of general circulation in New --------------------- York, New York, or in any other place specified by Seller, printed in the English language and customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays. "Authorized Officer" means: ------------------ (a) with respect to the Issuer, any officer of the Owner Trustee who is authorized to act for the Owner Trustee in matters relating to the Issuer and who is identified on the list of Authorized Officers, containing the specimen signature of each such Person, delivered by the Owner Trustee to the Indenture Trustee on the Closing Date (as such list may be modified or supplemented from time to time thereafter) and any Vice President or more senior officer of the Administrator who is authorized to act for the Administrator in matters relating to the Issuer and to be acted upon by the Administrator pursuant to the Administration Agreement and who is identified on the list of Authorized Officers (containing the specimen signatures of such officers) delivered by the Administrator to the Indenture Trustee on the Closing Date (as such list may be modified or supplemented from time to time thereafter); (b) with respect to the Seller, any officer of the Seller who is authorized to act for the Seller in matters relating to the Seller and who is identified on the list of Authorized Officers, containing the specimen signature of each such Person, delivered by the Seller to the Indenture Trustee -3- on the Closing Date (as such list may be modified or supplemented from time to time thereafter); and (c) with respect to the Servicer, any officer of the Servicer who is authorized to act for the Servicer in matters relating to the Servicer and who is identified on the list of Authorized Officers, containing the specimen signature of each such Person, delivered by the Servicer to the Indenture Trustee on the Closing Date (as such list may be modified or supplemented from time to time thereafter). "Base Amount" means, at any date of determination, with reference to Annual ----------- Account Additions or Quarterly Account Additions, the number of Accounts included in the Receivables Trust on the first day of the relevant measurement period before giving effect to any Accounts added to the Receivables Trust on such first day. "Base Rate" is defined, with respect to any Series, in the related --------- Indenture Supplement. "Bearer Note" is defined in Section 2.1 of the Indenture. ----------- ----------- "Book-Entry Notes" means beneficial interests in the Notes, ownership ---------------- and transfers of which shall be made through book entries by a Clearing Agency or Foreign Clearing Agency as described in Section 2.13 of the Indenture. ------------ "Business Day" means each day which is neither a Saturday, a Sunday nor any ------------ other day on which banking institutions in New York, New York, Portland, Oregon or Chicago, Illinois (or, with respect to any Series, any additional city specified in the related Indenture Supplement) are authorized or obligated by law or required by executive order to be closed. "Buyer" means First Consumers Credit Corporation, a Delaware corporation. ----- "Cardholder Agreement" means the agreement (and the related application) -------------------- for a MasterCard or VISA credit card account between any Obligor and FCNB, as the same may be amended, modified or otherwise changed from time to time, or in the case of any Additional Account not originated by FCNB, the agreement (and the related application) for a MasterCard or VISA credit card account between the related Obligor and the originator of such Account, as the same may be amended, modified or otherwise changed from time to time. "Cardholder Fees" means, with respect to any Account, any fees specified in --------------- the Cardholder Agreement applicable to such Account, including annual fees, over -4- limit charges, cash advance fees, late charges, returned check fees, and reinstatement charges. "Cardholder Guidelines" means FCNB's policies and procedures relating to --------------------- the operation of its credit card business, including the FCNB Credit Policy and Operations Manual or such other of its policies and procedures for determining the creditworthiness of credit card customers, the extension of credit to customers, the terms on which repayments are required to be made, and relating to the maintenance of credit card accounts and collection of credit card account receivables, as said manual and such policies and procedures, as applicable, may be amended from time to time. "Cash Advance Fees" means, with respect to any Account, any fees specified ----------------- in the Cardholder Agreement applicable to such Account as cash advance fees or any similar term. "Class" means, with respect to any Series, any one of the classes of Notes ----- of that Series. "Clearing Agency" means an organization registered as a "clearing agency" --------------- pursuant to Section 17A of the Securities Exchange Act of 1934. "Clearing Agency Participant" means a broker, dealer, bank, other financial --------------------------- institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency. "Clearstream" means Clearstream Banking, societe anonyme, a professional ----------- depository incorporated under the laws of Luxembourg, and its successors. "Closing Date" means, with respect to any Series, the closing date ------------ specified in the related Indenture Supplement. "Code" means the Internal Revenue Code of 1986, as amended. ---- "Collateral" is defined in the Granting Clause of the Indenture. ---------- "Collateral Amount" is defined, with respect to any Series, in the related ----------------- Indenture Supplement. "Collateral Certificate" means the certificate, representing an undivided ---------------------- interest in the assets held in the First Consumers Master Trust, issued pursuant to the Pooling and Servicing Agreement and the Collateral Series Supplement, dated as of March 1, 2001, to the Pooling and Servicing Agreement. -5- "Collection Account" is defined in Section 8.3(a) of the Indenture. ------------------ -------------- "Collections" means all payments (including Insurance Proceeds and ----------- Recoveries) received by the Servicer or by Seller in respect of the Collateral Certificate and the Receivables, in the form of cash, checks, wire transfers, ATM transfers, net proceeds of redemption of certificates of deposit or liquidation of bank accounts or other form of payment in accordance with the Cardholder Agreement in effect from time to time on any Receivable. A Collection processed in respect of an Account (other than a Defaulted Account) in excess of the aggregate amount of Receivables in such Account as of the Date of Processing of such Collection shall be deemed to be a payment in respect of Principal Receivables to the extent of such excess. Collections with respect to any Monthly Period shall also include the amount of Interchange (if any) allocable to any Series of Notes pursuant to any Indenture Supplement with respect to such Monthly Period (to the extent received by the Issuer and deposited into the Collection Account, on the Transfer Date following such Monthly Period), to be applied as if such Collections were Finance Charge Receivables for all purposes. "Commission" means the Securities and Exchange Commission. ---------- "Conveyance Papers" is defined in Section 4.1(b) of the Receivables ----------------- -------------- Purchase Agreement. "Corporate Trust Office" means ---------------------- (a) for the Indenture Trustee, the principal office at which at any particular time its corporate trust business shall be administered, which office at date of the execution of the Indenture is located at 2 North LaSalle Street, Suite 1020, Chicago, Illinois 60602, Attention: Structured Finance Services, or at such other address as the Indenture Trustee may designate from time to time by notice to the Noteholders and the Seller, or the principal corporate trust office of any successor Indenture Trustee (the address of which the successor Indenture Trustee will notify the Noteholders and the Seller); (b) for the Owner Trustee, the principal office at which at any particular time its corporate trust business shall be administered, which office at date of the execution of the Indenture is located at Four Albany Street, 10th Floor, New York, New York 10006, Attn: Corporate Trust and Agency Services. "Coupon" is defined in Section 2.1 of the Indenture. ------ ----------- "Credit Adjustment" is defined in Section 8.4(e) of the Indenture. ----------------- -------------- -6- "Credit Insurance" means life, accident, health, disability, involuntary ---------------- unemployment or other insurance of an Obligor to Seller to insure payment of any amount owing by such Obligor under an Account and which proceeds of such insurance are payable to Seller upon such Obligor's death, disability or involuntary unemployment. "Date of Processing" means, with respect to any transaction, the date on ------------------ which such transaction is first recorded on the Servicer's computer master file of accounts (without regard to the effective date of such recordation). "Debtor Relief Laws" means the Bankruptcy Code of the United States of ------------------ America and all other applicable liquidation, conservatorship, bankruptcy, fraudulent conveyance, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, or similar debtor relief laws from time to time in effect affecting the rights of creditors (including creditors of national banking associations) generally. "Default" means any occurrence that is, or with notice or the lapse of time ------- or both would become, an Event of Default. "Default Amount" means, with respect to any Monthly Period, the result of -------------- multiplying (i) the excess, if any, of (A) the aggregate amount of Receivables in Defaulted Accounts charged off during such Monthly Period over (B) Recoveries collected during such Monthly Period, times (ii) 1.00 minus the percentage (expressed as a decimal) of Receivables (other than Receivables in Defaulted Accounts) constituting Finance Charge Receivables determined in accordance with Section 1.3 of the Transfer and Servicing Agreement or Section 1.3 of the Pooling and Servicing Agreement. "Defaulted Account" means each Account with respect to which, in accordance ----------------- with the Cardholder Guidelines or the Servicer's customary and usual servicing procedures for servicing credit card receivables comparable to the Receivables, the Servicer has charged off the Receivables in such Account as uncollectible; an Account shall become a Defaulted Account on the day on which such Receivables are recorded as charged off on the Servicer's computer master file of accounts (regardless of whether such Receivables are charged off before or after the Initial FCMT Cut-Off Date or Addition Date of such Account, as the case may be). "Definitive Notes" means Notes in definitive, fully registered form. ---------------- "Demand Note" is defined in Section 2.9 of the Transfer and Servicing ----------- ----------- Agreement. -7- "Deposit Date" means each day on which the Servicer deposits ------------ Collections in the Collection Account. "Deposit Obligation" means the obligation of the Seller to make any ------------------ deposit to the Excess Funding Account or the Collection Account pursuant to Section 2.4(d) of the Transfer and Servicing Agreement or Section 8.4(g) of the - -------------- -------------- Indenture. "Determination Date" means the seventh calendar day prior to each ------------------ Transfer Date. "Discount Option Date" means each date on which a Discount Percentage -------------------- designated by the Seller pursuant to Section 2.8 of the Transfer and Servicing ----------- Agreement takes effect. "Discount Option Receivable Collections" means on any Date of -------------------------------------- Processing occurring in any Monthly Period succeeding the Monthly Period in which the Discount Option Date occurs, the product of (a) a fraction (i) the numerator of which is the Discount Option Receivables and (ii) the denominator of which is the sum of the Principal Receivables and the Discount Option Receivables in each case (for both the numerator and the denominator) at the end of the prior Date of Processing and (b) Collections of Original Principal Receivables on such Date of Processing. "Discount Option Receivables" is defined in Section 2.8 of the Transfer --------------------------- ----------- and Servicing Agreement. The aggregate amount of Discount Option Receivables outstanding on any Date of Processing occurring on or after the Discount Option Date shall equal the result of (a) the aggregate Discount Option Receivables at the end of the prior Date of Processing (which amount, prior to the Discount Option Date, shall be zero) plus (b) any new Discount Option Receivables created on such Date of Processing minus (c) any Discount Option Receivables Collections received on such Date of Processing. Discount Option Receivables created on any Date of Processing mean the product of the amount of any Original Principal Receivables created on such Date of Processing and the Discount Percentage. "Discount Percentage" is defined in Section 2.8 of the Transfer and ------------------- ----------- Servicing Agreement. "Distribution Date" means, unless otherwise specified in the Indenture ----------------- Supplement for a Series, the fifteenth day of each month or, if such fifteenth day is not a Business Day, the next succeeding Business Day. "Dollars," "$" or "U.S. $" means United States dollars. ------- - ------ "DTC" means The Depository Trust Company. --- -8- "Eligible Account" means, (a) with respect to "Accounts" designated ---------------- pursuant to (and as defined in) the Pooling and Servicing Agreement prior to the FCMT Termination Date, Accounts which are "Eligible Accounts" under (and as defined in) the Pooling and Servicing Agreement and (b) as of the relevant Notice Date in respect of Additional Accounts added pursuant to Section 2.6(a) -------------- or (b) of the Transfer and Servicing Agreement or the fifth Business Day prior --- to the relevant Addition Date in respect of Additional Accounts added pursuant to Section 2.6(e) of the Transfer and Servicing Agreement), each Account: -------------- (a) which is payable in United States dollars; (b) which is serviced in any credit service center of Seller which is located in the United States; (c) the Obligor on which has provided, as its initial billing address, an address which is located in the United States or its territories or possessions; (d) which the Seller has not finally determined to be counterfeit or fraudulent; (e) which the Seller has not charged off in its customary and usual manner for charging off such Accounts as of the relevant Notice Date or Addition Date; (f) which was originated by FCNB in the ordinary course of business, unless the Rating Agency Condition has otherwise been satisfied with respect to such Account; (g) which has not been sold or pledged to any other party; (h) which does not have receivables which have been sold or pledged to any party other than Seller pursuant to the Receivables Purchase Agreement; and (i) is a "VISA" or "MasterCard" revolving credit card account. "Eligible Institution" means any depository institution (which may be -------------------- the Owner Trustee or the Indenture Trustee) organized under the laws of the United States or any one of the states thereof, including the District of Columbia (or any domestic branch of a foreign bank), which depository institution at all times (a) has FDIC deposit insurance and (b) has (i) a long-term unsecured debt rating acceptable to the Rating Agencies, which in the case of Standard and Poor's shall be a rating of -9- AAA or (ii) a certificate of deposit rating acceptable to the Rating Agencies, which in the case of Standard and Poor's shall be a rating of A-1+. Notwithstanding the previous sentence, any institution the appointment of which satisfies the Rating Agency Condition shall be considered an Eligible Institution. If so qualified, the Servicer may be considered an Eligible Institution for the purposes of this definition. "Eligible Receivable" means each Receivable: ------------------- (a) which has arisen under an Eligible Account; (b) which was created in compliance, in all material respects, with all Requirements of Law applicable to FCNB or the originator of the related Account pursuant to a Cardholder Agreement which complies, in all material respects, with all Requirements of Law applicable to FCNB or the originator of the related Account; (c) with respect to which all consents, licenses, approvals or authorizations of, or registrations or declarations with, any Governmental Authority required to be obtained, effected or given by FCNB or the originator of the related Account in connection with the creation of such Receivable or the execution, delivery and performance by FCNB or the originator of the related Account, as applicable, of the Cardholder Agreement pursuant to which such Receivable was created, have been duly obtained, effected or given and are in full force and effect as of such date of creation; (d) as to which, immediately prior to the transfer of same to the Receivables Trust by Seller, Seller had good title thereto free and clear of all Liens arising under or through FCNB, Seller or their respective Affiliates (other than Liens permitted pursuant to Section 2.5(b) of the Transfer and Servicing Agreement); (e) which is the legal, valid and binding payment obligation of the Obligor thereon, enforceable against such Obligor in accordance with its terms, except as such enforceability may be limited by applicable Debtor Relief Laws, and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity); (f) which constitutes an "account" under and as defined in Article 9 of the UCC as then in effect in the applicable jurisdiction; (g) which, at the time of transfer to the Receivables Trust, has not been waived or modified except for a Receivable which has been waived or modified as permitted in accordance with the Cardholder Guidelines and -10- which waiver or modification is reflected in FCNB's computer files of revolving credit card accounts; (h) which, at the time of transfer to the Receivables Trust, is not (to the knowledge of Seller) subject to any right of rescission, set-off, counterclaim or any other defense (including defenses arising out of violations or usury laws) of the Obligor, which requires that such Receivable be charged off in accordance with the Cardholder Guidelines, other than defenses arising out of applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights in general; (i) as to which, at the time of transfer to the Receivables Trust, each of the Seller and FCNB has satisfied all its obligations required to be satisfied by such time; (j) which has been the subject of either a valid transfer and assignment from the Seller to the Issuer of the Seller's right, title and interest therein (including any proceeds thereof), or the grant by the Seller to the Issuer of a valid first priority perfected security interest therein (and the proceeds thereof); and (k) as to which at the time of transfer to the Issuer, the Seller has not taken any action, or omitted to take any action, that would impair the rights of the Issuer or the Noteholders. "Eligible Servicer" means the Indenture Trustee or, if the Indenture ----------------- Trustee is not acting as Servicer, an entity which, at the time of its appointment as Servicer, (a) is servicing a portfolio of revolving credit card accounts, (b) is legally qualified and has the capacity to service the Accounts, (c) has demonstrated the ability to service professionally and competently a portfolio of similar accounts in accordance with high standards of skill and care, (d) is qualified to use the software that is then being used to service the Accounts or obtains the right to use or has its own software which is adequate to perform its duties under this Agreement and (e) has a net worth of at least $50,000,000 as of the end of its most recent fiscal quarter. "Enhancement" means, with respect to any Series, the cash collateral ----------- account, letter of credit, surety bond, guaranteed rate agreement, maturity guaranty facility, tax protection agreement, interest rate swap or any other contract, arrangement or agreement for the benefit of the Noteholders of such Series (or Noteholders of a Class within such Series), as designated in the applicable Indenture Supplement. -11- "Enhancement Agreement" means any agreement, instrument or document --------------------- governing the terms of any Series Enhancement or pursuant to which any Series Enhancement is issued or outstanding. "Enhancement Provider" means, with respect to any Series, the Person, -------------------- if any, designated as such in the related Indenture Supplement. "Euroclear Operator" means Euroclear Bank S.A./N.V. ------------------ "Event of Default" is defined in Section 5.2 of the Indenture. ---------------- ----------- "Excess Allocation Series" means a Series that, pursuant to the ------------------------ Indenture Supplement therefor, is entitled to receive certain excess Collections of Finance Charge Receivables, as more specifically set forth in such Indenture Supplement. If so specified in the Indenture Supplement for a Group of Series, such Series may be Excess Allocation Series only for the Series in such Group. "Excess Finance Charge Collections" is defined in Section 8.6 of the --------------------------------- ----------- Indenture. "Excess Funding Account" is defined in Section 8.3 of the Indenture. ---------------------- ----------- "Excess Funding Amount" means the amount on deposit in the Excess --------------------- Funding Account. "Exchange Act" means the Securities Exchange Act of 1934. ------------ "Expenses" is defined in Section 7.2 of the Trust Agreement. -------- ----------- "FCMT Termination Date" means the date on which the First Consumers --------------------- Master Trust is terminated and all of the Receivables held by First Consumers Master Trust are transferred to the Issuer. "FCMT Trustee" means the trustee under the Pooling and Servicing ------------ Agreement. "FCNB" means First Consumers National Bank, a national banking ---- association. "FDIC" means the Federal Deposit Insurance Corporation. ---- "Finance Charge Collections" means, for any period, the amount of -------------------------- Collections allocated to Finance Charge Receivables during such period in -12- accordance with Section 1.3 of the Transfer and Servicing Agreement plus ----------- Discount Option Receivables Collections for such period. Payments on account of Net Recoveries shall also be treated as Finance Charge Collections. "Finance Charge Receivables" means, with respect to any Monthly Period, -------------------------- (a) all amounts billed to Obligors on any Account during such Monthly Period in respect of Finance Charges, Cash Advance Fees and Cardholder Fees, and (b) the amount of Interchange (if any) allocable to any Series of Notes pursuant to any Indenture Supplement with respect to such Monthly Period. "Finance Charge Shortfalls" is defined in Section 8.6 of the Indenture. ------------------------- ----------- "Finance Charge Subaccount" means the finance charge subaccount of the ------------------------- Collections Account. "Finance Charges" means, as of any day, the amount of interest as --------------- determined by the periodic finance charge rate assessed on the Cycle Billing Date on or next preceding such day pursuant to the Cardholder Agreements. "First Consumers Master Trust" means the trust formed by the Pooling ---------------------------- and Servicing Agreement. "Fitch" means Fitch, Inc. ----- "Foreign Clearing Agency" means Clearstream and the Euroclear Operator. ----------------------- "GAAP" means generally accepted accounting principles in the United ---- States of America in effect from time to time. "Global Note" is defined in Section 2.16 of the Indenture. ----------- ------------ "Governmental Authority" means the United States of America, any state ---------------------- or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. "Grant" means to mortgage, pledge, bargain, warrant, alienate, remise, ----- release, convey, assign, transfer, create, and grant a lien upon and a security interest in and right of set-off against, deposit, set over and confirm pursuant to this Indenture. A Grant of the Collateral or of any other agreement or instrument shall include all rights, powers and options (but none of the obligations) of the Granting party thereunder, including if available the immediate and continuing right to claim for, collect, receive and give receipt for principal and interest payments in respect of the Collateral and all other moneys payable thereunder, to give and receive notices -13- and other communications, to make waivers or other agreements, to exercise all rights and options, to bring Proceedings in the name of the Granting party or otherwise and generally to do and receive anything that the Granting party is or may be entitled to do or receive thereunder or with respect thereto. "Group" means, with respect to any Series, the group of Series, if any, ----- in which the related Indenture Supplement specifies such Series is to be included. "Indebtedness" means, with respect to any Person at any date, (a) all ------------ indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than current liabilities incurred in the ordinary course of business and payable in accordance with customary trade practices) or which is evidenced by a note, bond, debenture or similar instrument, (b) all obligations of such Person under capital leases, (c) all obligations of such Person in respect of acceptances issued or created for the account of such Person and (d) all liabilities secured by any Lien on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof. "Indemnified Parties" is defined in Section 7.2 of the Trust Agreement. ------------------- ----------- "Indenture" means the Master Indenture, dated as of March 1, 2001, and --------- amended and restated as of December 31, 2001, between the Issuer and the Indenture Trustee, as the same may be amended, supplemented or otherwise modified from time to time. "Indenture Supplement" means, with respect to any Series, a supplement -------------------- to this Indenture, executed and delivered in connection with the original issuance of the Notes of such Series pursuant to Section 2.12 of the Indenture, ------------ and an amendment to this Indenture executed pursuant to Sections 10.1 or 10.2 of ------------- ---- the Indenture, and, in either case, including all amendments thereof and supplements thereto. "Indenture Trustee" means The Bank of New York, in its capacity as ----------------- trustee under this Indenture, its successors in interest and any successor indenture trustee under this Indenture. "Independent" means, when used with respect to any specified Person, ----------- that the Person (a) is in fact independent of the Issuer, any other obligor upon the Notes, the Seller and any Affiliate of any of the foregoing Persons, (b) does not have any direct financial interest or any material indirect financial interest in the Issuer, any such other obligor, the Seller or any Affiliate of any of the foregoing Persons and (c) is not connected with the Issuer, any such other obligor, the Seller or any Affiliate of any of the foregoing Persons as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions. -14- "Independent Certificate" means a certificate or opinion to be ----------------------- delivered to the Indenture Trustee under the circumstances described in, and otherwise complying with, the applicable requirements of Section 12.1 of the ------------ Indenture, made by an Independent appraiser or other expert appointed by an Issuer Order, and such opinion or certificate shall state that the signer has read the definition of "Independent" in this Indenture and that the signer is Independent within the meaning thereof. "Indirect Participant" means other Persons such as securities brokers -------------------- and dealers, banks and trust companies that clear or maintain a custodial relationship with a participant of DTC, either directly or indirectly. "Ineligible Receivables" is defined: (a) for purposes of the Transfer ---------------------- and Servicing Agreement in Section 2.4(d) of that Agreement; and (b) for -------------- purposes of the Receivables Purchase Agreement, in Section 6.1 of that ----------- Agreement. "Initial Closing Date" means March 6, 2001. -------------------- "Initial Collateral Amount" with respect to any Series, shall have the ------------------------- meaning specified in the related Indenture Supplement. "Initial FCMT Cut-Off Date" means September 22, 1992. ------------------------- "Insolvency Event" is defined in Section 6.1 of the Transfer and ---------------- Servicing Agreement. "Insurance Proceeds" means any amounts received pursuant to the ------------------ payment of benefits under any credit life insurance policies, credit disability or unemployment insurance policies covering any Obligor with respect to Receivables under such Obligor's Account. "Interchange" means interchange fees paid or payable to the Seller, in ----------- its capacity as credit card issuer, through MasterCard International Incorporated and/or VISA U.S.A., Inc. in connection with cardholder charges for goods and services. "Investment Company Act" means the Investment Company Act of 1940. ---------------------- "Investor Monthly Servicing Fee" is defined in Section 3.2 of the ------------------------------ Transfer and Servicing Agreement. "Issuer" means the First Consumers Credit Card Master Note Trust, ------ which is established by the Trust Agreement. -15- "Issuer Order" and "Issuer Request" means a written order or request ------------ -------------- signed in the name of the Issuer by any one of its Authorized Officers and delivered to the Indenture Trustee. "Lien" means any mortgage, deed of trust, pledge, hypothecation, ---- assignment, deposit arrangement, encumbrance, lien (statutory or other), equity interest, participation interest, preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing and the filing of any financing statement under the applicable UCC (other than any such financing statement filed for informational purposes only) or comparable law of any jurisdiction to evidence any of the foregoing; provided, however, that any -------- ------- assignment pursuant to the Indenture shall not be deemed to constitute a Lien. "Minimum Aggregate Principal Balance" means, on any date of ----------------------------------- determination, the greater of (a) the sum of the Aggregate Collateral Amount, plus the Minimum Seller Amount, in each case as of such date and (b) the sum of the numerators used to determine the Allocation Percentages for Principal Collections of all Series outstanding on such date. "Minimum Average Seller Percentage" means the weighted average (by --------------------------------- Adjusted Collateral Amount) Minimum Seller Percentages for all Series then outstanding. "Minimum Seller Amount" means, on any Determination Date, the Aggregate --------------------- Collateral Amount at the end of the day prior to such Determination Date, times the Minimum Average Seller Percentage; provided that if such percentage is zero, -------- ---- the Minimum Seller Amount shall be zero. FCNB may reduce the Minimum Seller Amount by written notice to the Indenture Trustee, provided that (a) the Rating Agency Condition is satisfied with respect to such reduction and (b) FCNB delivers to the Indenture Trustee an Opinion of Counsel to the effect that such reduction will not have a material adverse effect on the Federal income tax characterization of any outstanding Series. "Minimum Seller Percentage" is defined, for any Series, in the related ------------------------- Indenture Supplement. "Monthly Period" means the period from and including the first day of -------------- the calendar month preceding a related Determination Date to and including the last day of such calendar month. -16- "Monthly Seller Servicing Fee" is defined in Section 3.2 of the ---------------------------- ----------- Transfer and Servicing Agreement. "Monthly Servicing Fee" is defined in Section 3.2 of the Transfer and --------------------- ----------- Servicing Agreement. "Moody's" means Moody's Investors Service, Inc. ------- "Net Recoveries" means, with respect to any Monthly Period, the excess, -------------- if any, of Recoveries collected during such Monthly Period over the aggregate amount of Principal Receivables in Defaulted Accounts charged off during such Monthly Period. "New Issuance" is defined in Section 2.12(a) of the Indenture. ------------ --------------- "Notes" means all Series of Notes issued by the Issuer pursuant to this ----- Indenture and the applicable Indenture Supplements. "Noteholder" or "Holder" means the Person in whose name a Note is ---------- ------ registered on the Note Register and, if applicable, the holder of any Global Note, or Coupon, as the case may be, or such other Person deemed to be a "Noteholder" or "Holder" in any related Indenture Supplement. "Note Interest Rate" means, as of any particular date of determination ------------------ and with respect to any Series or Class, the interest rate as of such date specified therefor in the related Indenture Supplement. "Note Owner" means, with respect to a Book-Entry Note, the Person who ---------- is the owner of such Book-Entry Note, as reflected on the books of the Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an Indirect Participant, in accordance with the rules of such Clearing Agency). "Note Principal Balance" means, as of any particular date of ---------------------- determination and with respect to any Series or Class, the amount specified in the related Indenture Supplement. "Note Register" is defined in Section 2.5 of the Indenture. ------------- ----------- "Notes" means all Series of Notes issued by the Issuer pursuant to this ----- Indenture and the applicable Indenture Supplements. -17- "Notice Date" is defined in Section 2.6(c) of the Transfer and Servicing ----------- -------------- Agreement. "Notices" is defined in Section 9.4(a) of the Transfer and Servicing ------- -------------- Agreement. "Obligor" means, with respect to any Account, the Person or Persons ------- obligated to make payments with respect to such Account, including any guarantor thereof. "Officer's Certificate" means a certificate signed by any officer of Seller --------------------- or the Servicer and delivered to the Indenture Trustee. "Opinion of Counsel" means a written opinion of counsel, who may be counsel ------------------ for Seller or the Servicer and who shall be reasonably acceptable to the Indenture Trustee, provided that a Tax Opinion shall be an opinion of Rooks, -------- Pitts and Poust or other nationally recognized tax counsel. "Original Principal Receivables" means Principal Receivables determined ------------------------------ without giving effect to any reduction thereof attributable to Discount Option Receivables. "Outstanding" means, as of the date of determination, all Notes theretofore ----------- authenticated and delivered under this Indenture except: (i) Notes theretofore canceled by the Note Registrar or delivered to the Note Registrar for cancellation; (ii) Notes or portions thereof the payment for which money in the necessary amount has been theretofore deposited with the Indenture Trustee or any Paying Agent in trust for the Holders of such Notes (provided, -------- however, that if such Notes are to be redeemed, notice of such redemption ------- has been duly given pursuant to this Indenture or provision therefor, satisfactory to the Indenture Trustee, has been made); and (iii) Notes in exchange for or in lieu of other Notes which have been authenticated and delivered pursuant to this Indenture unless proof satisfactory to the Indenture Trustee is presented that any such Notes are held by a protected purchaser; provided that in determining whether the Holders of Notes representing the - -------- requisite Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Issuer, any other obligor upon the -18- Notes, the Seller, the Servicer or any Affiliate of any of the foregoing Persons shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Indenture Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes that a Trustee Officer of the Indenture Trustee actually knows to be so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Indenture Trustee the pledgee's right so to act with respect to such Notes and that the pledgee is not the Issuer, any other obligor upon the Notes, the Seller, the Servicer or any Affiliate of any of the foregoing Persons. In making any such determination, the Indenture Trustee may conclusively rely on the representations of the pledgee and shall not be required to undertake any independent investigation. "Outstanding Amount" means the aggregate principal amount of all Notes ------------------ Outstanding at the date of determination. "Owner" means Seller, as the holder of the beneficial ownership ----- interest in the Issuer and any successor or assign in that capacity. "Owner Trustee" means Bankers Trust Company, in its capacity as owner ------------- trustee under the Trust Agreement, its successors in interest and any successor owner trustee under the Trust Agreement. "Paired Series" means (i) each Series which has been paired with ------------- another Series (which Series may be prefunded or partially prefunded), such that the reduction of the Collateral Amount or Adjusted Collateral Amount of such Series results in the increase of the Collateral Amount of such other Series, as described in the related Indenture Supplements, and (ii) such other Series. "Pay Out Event" means, with respect to any Series, a Series Pay Out ------------- Event relating to that Series or a Trust Pay Out Event. "Paying Agent" means any paying agent appointed pursuant to Section 2.8 ------------ ----------- of the Indenture and shall initially be the Indenture Trustee; provided that if -------- the Indenture Supplement for a Series so provides, a separate or additional Paying Agent may be appointed with respect to such Series. "Permitted Assignee" means any Person who, if it were to purchase ------------------ Receivables (or interests therein) in connection with a sale thereof pursuant to Sections 5.5(a) and 5.16 of the Indenture, would not cause the Issuer to be - --------------- ---- taxable as a publicly traded partnership for federal income tax purposes. -19- "Permitted Investments" means (a) negotiable instruments or securities --------------------- represented by instruments in bearer or registered form which evidence (i) obligations of or guaranteed by the United States of America, (ii) time deposits in, certificates of deposit of, or bankers' acceptances issued by, any depositary institution or trust company (other than Seller or an Affiliate of Seller) incorporated under the laws of the United States of America or any state thereof and subject to supervision and examination by federal or state banking or depositary institution authorities, provided, however, that at the time of -------- ------- the Trust's investment or contractual commitment to invest therein, the certificates of deposit or short-term deposits, if any, or long-term unsecured debt obligations (other than such obligation whose rating is based on collateral or on the credit of a Person other than such institution or trust company) of such depositary institution or trust company shall have a credit rating from Moody's and Standard & Poor's of P-1 and A-1+, respectively, in the case of the certificates of deposit or short-term deposits, or a rating from Moody's of Aaa and from Standard & Poor's of AAA in the case of the long-term unsecured debt obligations, or such time deposits are fully insured by the FDIC, (iii) certificates of deposit (other than those of Seller or an Affiliate of Seller) having, at the time of the Trust's investment or contractual commitment to invest therein, a rating from Moody's and Standard & Poor's of P-1 and A-1+, respectively, and (iv) investments in money market funds rated in the highest investment category or otherwise approved in writing by Moody's and Standard & Poor's, which in the case of Standard & Poor's is AAAmg; (b) demand deposits in the name of the Issuer or the Indenture Trustee in any depositary institution or trust company referred to in (a) (ii) above; and (c) securities not represented by an instrument, which are registered in the name of the Indenture Trustee upon books maintained for that purpose by or on behalf of the issuer thereof and identified on books maintained for that purpose by the Indenture Trustee as held for the benefit of the Issuer or the Noteholders, and consisting of shares of an open end diversified investment company which is registered under the Investment Company Act of 1940, as amended, and which (i) invests its assets exclusively in obligations of or guaranteed by the United States of America or any instrumentality or agency thereof having in each instance a final maturity date of less than one year from their date of purchase or other Permitted Investments, (ii) seeks to maintain a constant net asset value per share and (iii) has aggregate net assets of not less than $100,000,000 on the date of purchase of such shares, and which satisfies the Rating Agency Condition; provided, however, that only those investments described above which are - -------- ------- permitted to be made by a national banking association shall be deemed to be "Permitted Investments" hereunder. "Permitted Transaction" mean any transaction or series of related --------------------- transactions pursuant to which the Seller finances an interest in the Trust Assets and (i) as to which the Rating Agency Condition is satisfied and (ii) which in the reasonable judgment of the Seller as evidenced by an Officer's Certificate, will not have a material adverse effect on the interests of the Noteholders. -20- "Person" means any legal person, including any individual, corporation, ------ partnership, joint venture, association, joint-stock company, trust, unincorporated organization, governmental entity or other entity of similar nature. "Pooling and Servicing Agreement" means the Pooling and Servicing ------------------------------- Agreement, dated as of September 30, 1992, as amended and restated February 1, 1999, and as amended and restated a second time as of December 31, 2001, and heretofore amended, among FCNB and The Bank of New York (as successor-in- interest to the corporate trust administration of Harris Trust and Savings Bank), as trustee. "Portfolio Yield" is defined, with respect to any Series, in the related Indenture Supplement. "Principal Collections" means all Collections that are not Finance --------------------- Charge Collections. "Principal Collections Subaccount" means the principal collections -------------------------------- subaccount of the Collections Account. "Principal Receivable" means each Receivable other than Finance Charge -------------------- Receivables and Receivables in Defaulted Accounts. A Principal Receivable shall be deemed to have been created at the end of the day on the Date of Processing of such Receivable. In calculating the aggregate amount of Principal Receivables on any day, the amount of Principal Receivables shall be reduced by the aggregate amount of credit balances in the Accounts on such day. Any Principal Receivables which Seller is unable to transfer as provided in Section 2.5(c) of -------------- the Transfer and Servicing Agreement shall not be included in calculating the aggregate amount of Principal Receivables. "Principal Sharing Series" means a Series that, pursuant to the ------------------------ Indenture Supplement therefor, is entitled to receive Shared Principal Collections. "Principal Shortfalls" is defined in Section 8.5 of the Indenture. -------------------- ----------- "Principal Terms" means, with respect to any Series, (a) the name or --------------- designation; (b) the initial principal amount (or method for calculating such amount), the Collateral Amount and the Seller Amount; (c) the Note Interest Rate for each Class of Notes of such Series (or method for the determination thereof); (d) the payment date or dates and the date or dates from which interest shall accrue; (e) the method for allocating Collections to Noteholders; (f) the designation of any Series Accounts and the terms governing the operation of any such Series Accounts; (g) the Servicing Fee; (h) the terms of any form of Series Enhancements with respect -21- thereto; (i) the terms on which the Notes of such Series may be exchanged for Notes of another Series, repurchased by the Seller or remarketed to other investors; (j) the Series Termination Date; (k) the number of Classes of Notes of such Series and, if more than one Class, the rights and priorities of each such Class; (l) the extent to which the Notes of such Series will be issuable in temporary or permanent global form (and, in such case, the depositary for such global note or notes, the terms and conditions, if any, upon which such global note or notes may be exchanged, in whole or in part, for Definitive Notes, and the manner in which any interest payable on a temporary or global note will be paid); (m) whether the Notes of such Series may be issued in bearer form and any limitations imposed thereon; (n) the priority of such Series with respect to any other Series; (o) whether such Series will be part of a Group; (p) whether such Series will be a Principal Sharing Series and whether such Series is entitled to share Shared Seller Principal Collections; (q) whether such Series will be an Excess Allocation Series; (r) the Distribution Date; (s) the legal final maturity date on which the rights of the Noteholders of such Series to receive payments from the Issuer will terminate, which shall not be later than the Scheduled Trust Termination Date; (t) whether Interchange will be included in the funds available to be paid for such Series; and (u) whether such Series will or may be a Paired Series and the Series, with which it will be paired, if applicable. "Proceeding" means any suit in equity, action at law or other judicial ---------- or administrative proceeding. "Purchase Price" is defined in Section 3.1 of the Receivables Purchase -------------- ----------- Agreement. "Qualified Account" means either (a) a non-interest bearing segregated ----------------- account with an Eligible Institution, or (b) a non-interest bearing segregated trust account with the corporate trust department of a depository institution organized under the laws of the United States or any one of the states thereof, including the District of Columbia (or any domestic branch of a foreign bank), and acting as a trustee for funds deposited in such account, so long as any of the securities of such depository institution shall have a credit rating from each Rating Agency in one of its generic credit rating categories that signifies investment grade. "Quarterly Account Additions" means on any Determination Date, the --------------------------- number of Accounts the Receivables of which have been added to the Receivables Trust pursuant to Sections 2.6(a), (b) and (e) of the Transfer and Servicing --------------- --- --- Agreement during the current calendar quarter. "Quarterly Quotient" is defined in Section 2.6(c)(ii)(2) of the ------------------ --------------------- Transfer and Servicing Agreement. -22- "Rating Agency" means, with respect to any outstanding Series or Class, ------------- each rating agency, as specified in the applicable Indenture Supplement, selected by the Seller to rate the Notes of such Series or Class. "Rating Agency Condition" means, with respect to any action or series ----------------------- of related actions or proposed transaction or series of related proposed transactions, that each Rating Agency shall have notified Seller and the Indenture Trustee in writing that such action or series of related actions or the consummation of such proposed transaction or series of related transactions will not result in a reduction or withdrawal of the rating of any outstanding Series or Class with respect to which it is a Rating Agency. "Reassignment Agreement" is defined in Section 2.7(b)(ii) of the ---------------------- ------------------ Transfer and Servicing Agreement. "Receivable" means any amount owing by an Obligor under an Account ---------- (including amounts in Defaulted Accounts) from time to time, including amounts owing for the purchase of goods and services, Finance Charges, Cash Advance Fees, Cardholder Fees, Special Fees and premiums for Credit Insurance, if any. "Receivables Purchase Agreement" means the Receivables Purchase ------------------------------ Agreement dated as of December 31, 2001, among Seller and FCNB, as amended from time to time, and includes any receivables purchase agreement substantially in the form of such agreement entered into between the Seller and FCNB. "Receivables Trust" means (a) prior to the FCMT Termination Date, First ----------------- Consumers Master Trust and (b) on and after the FCMT Termination Date, the Issuer. "Reconveyance" means an instrument substantially in the form and upon ------------ the terms of Exhibit B to the Receivables Purchase Agreement. --------- "Record Date" means, with respect to any Distribution Date, the last ----------- Business Day of the calendar month immediately preceding such Distribution Date unless otherwise specified for a Series in the related Indenture Supplement. "Recoveries" means, with respect to any Monthly Period, all amounts ---------- received, including Insurance Proceeds and net proceeds from the liquidation of certificates of deposit or bank accounts, by the Servicer with respect to Receivables which have previously been charged off as uncollectible, after deducting, in the case of each such amount received, a percentage of such amount which in the good faith judgment of the Servicer represents the amount of out-of-pocket costs incurred by the Servicer during the preceding fiscal year (or other, more recent period deemed -23- appropriate by the Servicer) as a percentage of collections during such period in respect of charged off receivables in all credit card accounts (including the Accounts) serviced by the Servicer. "Redemption Date" means, with respect to any Series, the date or dates --------------- specified in the related Indenture Supplement. "Registered Notes" is defined in Section 2.1 of the Indenture. ---------------- ----------- "Removal Date" is defined in Section 2.7 of the Transfer and Servicing ------------ ----------- Agreement. "Removal Notice Date" means the fifth Business Day prior to a Removal ---------------- Date. "Removed Accounts" is defined in Section 2.7(a) of the Transfer and ---------------- Servicing Agreement. "Repurchase Date" is defined in Section 6.2 of the Receivables Purchase --------------- ----------- Agreement. "Repurchase Notice Date" is defined in Section 6.2 of the Receivables ---------------------- ----------- Purchase Agreement. "Repurchase Price" means the Repurchase Price specified in Section ---------------- ------- 6.1(c) or 6.2(a), as the case may be, of the Receivables Purchase Agreement. - ------ ------ "Requirements of Law" for any Person means the certificate of ------------------- incorporation or articles of association and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation, or order 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). "Responsible Officer" means, as to the Issuer, the Chairman or any Vice ------------------- Chairman of the Board of Directors or Trustees of the Administrator; the Chairman or Vice Chairman of the Executive or Standing Committee of the Board of Directors or Trustees of the Administrator; and the President, any Executive Vice President, Senior Vice President, Vice President, any Assistant Vice President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the Cashier, any Assistant or Deputy Cashier, the Controller and any Assistant Controller or any other officer of the Administrator customarily performing functions similar to those -24- performed by any of the above-designated officers. The term "Responsible Officer", when used herein with respect to any Person other than the Issuer, means an officer or employee of such Person corresponding to any officer or employee described in the preceding sentence. "RPA Closing Date" means December 31, 2001. ---------------- "RPA Seller" means FCNB. ---------- "Scheduled Trust Termination Date" means December 31, 2050. -------------------------------- "Securities Act" means the Securities Act of 1933. -------------- "Seller" shall mean (i) before the RPA Closing Date, FCNB, and (ii) on ------ and after the RPA Closing Date, First Consumers Credit Corporation, a Delaware corporation. "Seller Amount" means, on any Determination Date, the Aggregate ------------- Principal Balance at the end of the day immediately prior to such Determination Date, minus the Aggregate Collateral Amount at the end of such day. "Seller Certificate Supplement" shall have the meaning specified in ----------------------------- Section 3.4 of the Trust Agreement. - ----------- "Seller Interest" means the interest of the Seller or its assigns in --------------- the Issuer and the Receivables, which entitles the Seller or its assigns to receive the various amounts specified in the Transaction Documents to be paid or transferred to the holder(s) of the Seller Interest. "Seller Percentage" means, on any date of determination, when used with ----------------- respect to Principal Collections, Finance Charge Collections and Receivables in Defaulted Accounts, the percentage equivalent of a fraction equal to 1.0, minus ----- the fraction calculated on such date with respect to such categories of Receivables in accordance with the definition of Aggregate Allocation Percentage; provided, however, that the Seller Percentage shall never be less -------- ------- than zero. "Series" means any series of Notes, which may include within any such ------ Series a Class or Classes of Notes subordinate to another such Class or Classes of Notes. "Series Account" means, with respect to any Series, any of the accounts -------------- established and designated as such pursuant to the related Indenture Supplement. -25- "Series Enhancement" means the rights and benefits provided to the ------------------ Issuer or the Noteholders of any Series or Class pursuant to any letter of credit, surety bond, cash collateral account, collateral interest, spread account, reserve account, cash collateral guaranty, insurance policy, tax protection agreement, interest rate swap agreement, interest rate cap agreement, cross support feature or other similar arrangement. The subordination of any Series or Class to another Series or Class shall be deemed to be a Series Enhancement. "Series Enhancer" means the Person or Persons providing any Series --------------- Enhancement, other than (except to the extent otherwise provided with respect to any Series in the Indenture Supplement for such Series) any account or deposits therein or the Noteholders of any Series or Class which is subordinated to another Series or Class. "Series Pay Out Event" is defined, with respect to any Series, in the -------------------- related Indenture Supplement. "Series Share" is defined in Section 8.4(h) of the Indenture. ------------ -------------- "Series Termination Date" means, with respect to any Series, the ----------------------- termination date for such Series specified in the related Indenture Supplement. "Servicer" means initially FCNB, and thereafter any Person appointed as -------- successor as herein provided to service the Receivables. "Servicer Default" is defined in Section 7.1 of the Transfer and ---------------- ----------- Servicing Agreement. "Servicing Agreement" means (i) before the FCMT Termination Date, the ------------------- Pooling and Servicing Agreement, and (ii) on and after the FCMT Termination Date, the Transfer and Servicing Agreement. "Servicing Fee Rate" means, with respect to any Series, the Series ------------------ servicing fee percentage specified in the related Indenture Supplement. "Servicing Officer" means any employee of the Servicer involved in, or ----------------- responsible for, the administration and servicing of the Receivables whose name appears on a list of servicing officers furnished to the Indenture Trustee by the Servicer, as such list may from time to time be amended. "Settlement Date" is defined in Section 3.4 of the Receivables Purchase --------------- ----------- Agreement. -26- "Settlement Statement" means a document substantially in the form of -------------------- Exhibit C to the Receivables Purchase Agreement. - --------- "Shared Finance Charge Collections" means, with respect to any --------------------------------- Distribution Date, the aggregate amount for all outstanding Series that the related Indenture Supplements specify are to be treated as "Shared Finance Charge Collections" for such Distribution Date. "Shared Principal Collections" is defined in Section 8.5 of the ---------------------------- ----------- Indenture. "Shortfall Amount" means, on any Determination Date, the amount, if ---------------- any, by which the Minimum Seller Amount exceeds the Seller Amount. "Special Fees" means Receivables consisting of fees which are not now ------------ but may from time to time be assessed on the Accounts. "Spiegel" means Spiegel, Inc., a Delaware corporation. ------- "Standard & Poor's" means Standard & Poor's Ratings Services, or its ----------------- successor. "Subordinated Note" means a subordinated note of Seller substantially ----------------- in the form attached to Exhibit F to the Receivables Purchase Agreement. --------- "Successor Servicer" is defined in Section 7.2(a) of the Transfer and ------------------ -------------- Servicing Agreement. "Supplemental Certificate" is defined in Section 3.4 of the Trust ------------------------ Agreement. "Supplemental Conveyance" means an instrument substantially in the form ----------------------- and upon the terms of Exhibit A to the Receivables Purchase Agreement. --------- "Surviving Person" is defined in Section 3.10(a) of the Indenture. ---------------- --------------- "Tax Opinion" means, with respect to any action, an Opinion of Counsel ----------- to the effect that, for federal income tax purposes, (a) such action will not adversely affect the tax characterization as debt of the Notes of any outstanding Series or Class that were characterized as debt at the time of their issuance, (b) such action will not cause the Issuer to be deemed to be an association (or publicly traded partnership) taxable as a corporation and (c) such action will not cause or constitute an event in which gain or loss would be recognized by any Noteholder. -27- "Termination Notice" is defined in Section 7.1 of the Transfer and ------------------ ----------- Servicing Agreement. "Transaction Documents" means the Master Indenture, Indenture --------------------- Supplements, Transfer and Servicing Agreement, Trust Agreement, Administration Agreement, and, until the FCMT Termination Date, the Pooling and Servicing Agreement and the Collateral Series Supplement, and any other documents related to this transaction. "Transfer Agent and Registrar" is defined in Section 2.5 of the ---------------------------- Indenture. "Transfer and Servicing Agreement" means the Transfer and Servicing -------------------------------- Agreement, dated as of March 1, 2001, and amended and restated as of December 31, 2001, among First Consumers Credit Corporation, FCNB and the Issuer. "Transfer Date" means the Business Day immediately preceding each ------------- Distribution Date or each Distribution Date. "Transfer Restriction Event" means any event that prevents FCNB from -------------------------- transferring Receivables to the Seller or prevents the Seller from transferring Receivables to the Issuer. "Trust" means the First Consumers Credit Card Master Note Trust. ----- "Trust Agreement" means the Trust Agreement relating to the Receivables --------------- Trust, dated as of March 1, 2001 and amended and restated as of December 31, 2001, between First Consumers Credit Corporation and the Owner Trustee, as the same may be amended, supplemented or otherwise modified from time to time. "Trust Assets" is defined in Section 2.1 of the Transfer and Servicing ------------ ----------- Agreement. "Trust Estate" means all right, title and interest of the Issuer in and ------------ to the property and rights assigned to the Issuer pursuant to Section 2.5 of the ----------- Trust Agreement and Section 2.1 of the Transfer and Servicing Agreement, all ----------- monies, investment property, instruments and other property on deposit from time to time in the Collection Account, the Series Accounts and the Excess Funding Account and all other property of the Issuer from time to time, including any rights of the Owner Trustee and the Issuer pursuant to the Transaction Documents. "Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939. ------------------- --- -28- "Trust Pay Out Event" is defined, with respect to each Series, in ------------------- Section 5.1 of the Indenture. "Trust Termination Date" is defined in Section 8.1 of the Trust ---------------------- Agreement. "Trustee Officer" means, with respect to the Indenture Trustee any --------------- officer assigned to the Corporate Trust Office, including any managing director, vice president, assistant vice president, assistant treasurer, assistant secretary or any other officer of the Indenture Trustee customarily performing functions similar to those performed by any of the above designated officers and having direct responsibility for the administration of the applicable Transaction Documents, and also, with respect to a particular matter, any other officer, to whom such matter is referred because of such officer's knowledge of and familiarity with the particular subject. "UCC" means the Uniform Commercial Code, as in effect in any specified --- jurisdiction. -29- EX-4.2 4 dex42.txt AMENDED AND RESTATED TRANSFER AND SERVICING 12/31 Exhibit 4.2 ----------- TRANSFER AND SERVICING AGREEMENT among FIRST CONSUMERS CREDIT CORPORATION Seller, FIRST CONSUMERS NATIONAL BANK, Servicer, and FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST, Issuer, Dated as of March 1, 2001 amended and restated as of December 31, 2001 TABLE OF CONTENTS
Page ARTICLE I DEFINITIONS ............................................................................................. 1 Section 1.1. Definitions ............................................................................... 1 Section 1.2. Other Definitional Provisions ............................................................. 1 Section 1.3. Monthly Allocation of Finance Charge Receivables .......................................... 2 ARTICLE II CONVEYANCE OF RECEIVABLES ............................................................................... 3 Section 2.1. Conveyance of Receivables ................................................................. 3 Section 2.2. Acceptance by Issuer ...................................................................... 5 Section 2.3. Representations and Warranties of Seller Relating to Seller ............................... 5 Section 2.4 Representations and Warranties of Seller Relating to this Agreement and the Receivables ... 7 Section 2.5. Covenants of Seller ....................................................................... 11 Section 2.6. Addition of Accounts ...................................................................... 15 Section 2.7. Removal of Accounts ....................................................................... 18 Section 2.8. Discount Option ........................................................................... 19 ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES ............................................................. 20 Section 3.1. Acceptance of Appointment and Other Matters Relating to the Servicer ...................... 20 Section 3.2. Servicing Compensation .................................................................... 21 Section 3.3. Representations; Warranties and Covenants of the Servicer ................................. 22 Section 3.4. Reports and Records for the Indenture Trustee; Bank Account Statements .................... 23 Section 3.5. Annual Servicer's Certificate ............................................................. 24 Section 3.6. Annual Independent Public Accountants' Servicing Report ................................... 24 Section 3.7. Tax Treatment ............................................................................. 25 Section 3.8. Notices to Seller ......................................................................... 25 Section 3.9. Reports to the Commission ................................................................. 25 ARTICLE IV OTHER MATTERS RELATING TO SELLER ........................................................................ 25 Section 4.1. Liability of Seller ....................................................................... 25 Section 4.2. Merger or Consolidation of, or Assumption of the Obligations of, Seller etc. .............. 25 Section 4.3. Limitation on Liability of Seller ......................................................... 27
ARTICLE V OTHER MATTERS RELATING TO THE SERVICER .......................................................... 27 Section 5.1. Liability of the Servicer ........................................................ 27 Section 5.2. Merger or Consolidation of, or Assumption of the Obligations of, the Servicer .... 27 Section 5.3. Limitation on Liability of the Servicer and Others ............................... 28 Section 5.4. Indemnification of the Issuer and the Owner Trustee .............................. 28 Section 5.5. The Servicer Not to Resign ....................................................... 29 Section 5.6. Access to Certain Documentation and Information Regarding the Receivables ........ 29 Section 5.7. Delegation of Duties ............................................................. 30 Section 5.8. Examination of Records ........................................................... 30 ARTICLE VI INSOLVENCY EVENTS ............................................................................... 30 Section 6.1. Rights upon the Occurrence of an Insolvency Event ................................ 30 ARTICLE VII SERVICER DEFAULTS ............................................................................... 31 Section 7.1. Servicer Defaults ................................................................ 31 Section 7.2. Indenture Trustee to Act; Appointment of Successor ............................... 32 Section 7.3. Notification to Noteholders ...................................................... 34 ARTICLE VIII TERMINATION ..................................................................................... 34 Section 8.1. Termination of Agreement ......................................................... 34 ARTICLE IX MISCELLANEOUS PROVISIONS ........................................................................ 35 Section 9.1. Amendment; Waiver of Past Defaults ............................................... 35 Section 9.2. Protection of Right, Title and Interest to Issuer ................................ 37 Section 9.3. GOVERNING LAW .................................................................... 38 Section 9.4. Notices; Payments ................................................................ 38 Section 9.5. Severability of Provisions ....................................................... 38 Section 9.6. Further Assurances ............................................................... 39 Section 9.7. No Waiver; Cumulative Remedies ................................................... 39 Section 9.8. Counterparts ..................................................................... 39 Section 9.9. Third-Party Beneficiaries ........................................................ 39 Section 9.10. Actions by Noteholders ........................................................... 39 Section 9.11. Rule 144A Information ............................................................ 39 Section 9.12. Merger and Integration ........................................................... 40 Section 9.13. No Bankruptcy Petition ........................................................... 40 Section 9.14. Rights of Indenture Trustee ...................................................... 40 Section 9.15. Rights of the Owner Trustee ...................................................... 40
ii EXHIBITS EXHIBIT A Form of Assignment of Receivables in Additional Accounts ............ A-1 EXHIBIT B Form of Reassignment of Receivables in Removed Accounts ............. B-1 EXHIBIT C Form of Monthly Servicer's Certificate .............................. C-1 EXHIBIT D Form of Annual Servicer's Certificate ............................... D-1 EXHIBIT E Form of Annual Independent Public Accountants' Servicing Report ..... E-1 EXHIBIT F-1 Form of Opinion of Counsel with Respect to Amendments ............... F-1-1 EXHIBIT F-2 Form of Opinion of Counsel with Respect to Accounts ................. F-2-1 EXHIBIT F-3 Provisions to be Included in Annual Opinion of Counsel .............. F-3-1 SCHEDULES SCHEDULE 1 List of Accounts .................................................... 1-1 SCHEDULE 2 Additional Representations, Warranties and Covenants ................ 2-1
iii TRANSFER AND SERVICING AGREEMENT, dated as of March 1, 2001, as amended and restated herein as of December 31, 2001 (this "Agreement") among FIRST --------- CONSUMERS CREDIT CORPORATION, a Delaware corporation, as Seller, FIRST CONSUMERS NATIONAL BANK, a national banking association, as Servicer, and FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST, a trust organized under the laws of the State of Illinois, as Issuer. In consideration of the mutual agreements herein contained, each party agrees as follows for the benefit of the other parties, the Noteholders and any Series Enhancer to the extent provided herein, in the Indenture and in any Indenture Supplement: ARTICLE I DEFINITIONS Section 1.1. Definitions. Capitalized terms used herein and not ----------- otherwise defined herein are defined in Annex A to the Master Indenture, dated ------- as of the date hereof, between First Consumers Credit Card Master Note Trust and The Bank of New York. Section 1.2. Other Definitional Provisions. All terms defined directly ----------------------------- or by reference in this Agreement shall have the defined meanings when used in any certificate or other document delivered pursuant hereto unless otherwise defined therein. For purposes of this Agreement and all such certificates and other documents, unless the context otherwise requires: (a) accounting terms not otherwise defined in this Agreement, and accounting terms partly defined in this Agreement to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles; (b) terms defined in Article 9 of the UCC as in effect in the applicable jurisdiction and not otherwise defined in this Agreement are used as defined in that Article; (c) any reference to each Rating Agency shall only apply to any specific rating agency if such rating agency is then rating any outstanding Series; (d) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (e) the words "hereof," "herein" and "hereunder" and words of similar import refer to this Agreement (or the certificate or other document in which they are used) as a whole and not to any particular provision of this Agreement (or such certificate or document); (f) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to this Agreement (or the certificate or other document in which the reference is made), and references to any paragraph, Section, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (g) the term "including" means "including without limitation"; (h) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (i) references to any Person include that Person's 1 successors and assigns; and (j) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof. Section 1.3. Monthly Allocation of Finance Charge Receivables. The ------------------------------------------------ amount of Finance Charge Receivables (excluding, in each case where such term is used in this Section 1.3, Discount Option Receivables) in all Accounts shall be ----------- determined as follows: (a) At the close of business on each Cycle Billing Date for any Cycle of which any Accounts are included in the Trust, the amount of Finance Charge Receivables of all Accounts in such Cycle shall be equal to the result of (A) the amount of Finance Charges charged to all Accounts in such Cycle on such date minus (B) the amount of Finance Charge Receivables on all Accounts in such Billing Cycle that have been charged off since the close of business on the preceding Cycle Billing Date. As of the end of each Monthly Period, the amount of Finance Charge Receivables for all Accounts shall equal (X) the sum of the amounts calculated pursuant to the preceding sentence for each Cycle of which Accounts are included in the Trust during that Monthly Period plus (Y) the Carry-Over Finance Charge Amount. (b) For each Business Day in each Monthly Period, the amount of Collections allocated to Finance Charge Receivables for all Accounts shall be all Collections available for allocation on that Business Day up to an amount equal to the quotient of the result determined pursuant to paragraph (a) above as of the end of the immediately preceding Monthly Period divided by the number of Business Days in such present Monthly Period; provided, however, that (A) the -------- ------- amount of Collections allocated to Finance Charge Receivables for all Accounts on the first Business Day of each Monthly Period shall equal the product of two times such quotient, (B) subject to clause (C) below, the amount of Collections allocated to Finance Charge Receivables for all Accounts on the last Business Day of each Monthly Period shall equal zero and (C) to the extent that the total Collections available for allocation on any Business Day (other than the last Business Day of a Monthly Period) is less than the amount that is to be allocated to Collections of Finance Charge Receivables on that Business Day, then the deficit shall be added to the amount of Collections that will be allocated to Finance Charge Receivables on the next Business Day. (c) If, at the close of business on the last Business Day of any Monthly Period, the amount of Collections allocated to Finance Charge Receivables for all Accounts during such Monthly Period is less than the amount of Finance Charge Receivables for all Accounts calculated pursuant to paragraph (a) as of the end of the next preceding Monthly Period, then such deficit shall be the "Carry-Over Finance Charge Amount" and shall be added to the amount of Finance Charge Receivables as of the end of the then current Monthly Period pursuant to paragraph (a). 2 Notwithstanding the foregoing, the Servicer may adopt a different method of determining the amount of Finance Charge Receivables which in the good faith judgment of the Servicer is designed to more accurately reflect the portions of Receivables and Collections constituting Finance Charge Receivables. ARTICLE II CONVEYANCE OF RECEIVABLES Section 2.1. Conveyance of Receivables. By execution of this Agreement, ------------------------- Seller does hereby transfer, assign, set over and otherwise convey to the Issuer, without recourse except as provided herein, all its right, title and interest in, to and under (a) the Collateral Certificate, and (b) effective on the FCMT Termination Date, the Receivables existing at the opening of business on the FCMT Termination Date, and thereafter created from time to time until the termination of the Issuer, all Collections and Recoveries allocable to the Issuer as provided herein, the rights to receive certain amounts paid or payable as Interchange (if and to the extent provided for in any Indenture Supplement), all rights to security for any Receivables (including without limitation rights to bank accounts or certificates of deposit pledged as collateral) and the right to any Enhancement with respect to any Series, in each case together with all monies due or to become due and all amounts received or receivable with respect thereto, Transferred Assets acquired by Seller under the Receivables Purchase Agreement, rights described in clause (a)(ii) of the definition of "Existing -------------- Assets" in the Receivables Purchase Agreement, rights under the Receivables Purchase Agreement relating to assets that have been transferred or contributed under the Receivables Purchase Agreement (other than the right to acquire such assets under Sections 2.1(a) and 2.1(b) thereof) and all proceeds thereof and --------------- ------ Insurance Proceeds relating thereto. Such property, together with all monies and other property credited to the Collection Account, the Series Accounts and the Excess Funding Account (including any subaccounts of any such account), the rights of the Issuer under this Agreement and the Trust Agreement and the right to receive Recoveries shall constitute the assets of the Issuer (the "Trust ----- Assets"). The foregoing does not constitute and is not intended to result in the - ------- creation or assumption by the Issuer, the Owner Trustee, the Indenture Trustee or any Noteholder of any obligation of the Seller, the Servicer or any other Person in connection with the Accounts or the Receivables or under any agreement or instrument relating thereto, including any obligation to Obligors, merchant banks, merchants or clearance systems. On or prior to the Initial Closing Date, Seller shall deliver to the Owner Trustee a registered certificate representing the Collateral Certificate. On or prior to the FCMT Termination Date, Seller agrees to record and file, at its own expense, financing statements (and continuation statements when applicable) with respect to the Receivables and other Trust Assets conveyed by Seller existing on the FCMT Termination Date and thereafter created meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect, and maintain 3 the perfection of, the transfer and assignment of its interest in such Receivables and other Trust Assets to the Issuer, and to deliver a file stamped copy of each such financing statement or other evidence of such filing to the Owner Trustee as soon as practicable after the FCMT Termination Date, and (if any additional filing is so necessary) as soon as practicable after the applicable Addition Date, in the case of Receivables and other Trust Assets arising in Additional Accounts. The Owner Trustee shall be under no obligation whatsoever to file such financing or continuation statements or to make any other filing under the applicable UCC in connection with such transfer and assignment. Seller further agrees, at its own expense, on or prior to (x) the FCMT Termination Date, (y) the applicable Addition Date, in the case of Additional Accounts (other than Additional Accounts added pursuant to Section 2.6(e)), and --------------- (z) the applicable Removal Date, in the case of Removed Accounts, (a) to indicate in the appropriate computer files that Receivables created (or reassigned, in the case of Removed Accounts) in connection with the Accounts have been conveyed to the Issuer pursuant to this Agreement (or conveyed to Seller or its designee in accordance with Section 2.7, in the case of Removed ----------- Accounts) and (b) to deliver to the Owner Trustee a computer file or microfiche list containing a true and complete list of all such Accounts specifying for each such Account, as of the FCMT Termination Date, the applicable Addition Date in the case of Additional Accounts, and the applicable Removal Date in the case of Removed Accounts, its account number and, the aggregate amount outstanding in such Account and the aggregate amount of Principal Receivables outstanding in such Account. Each such file or list, as supplemented, from time to time, to reflect Additional Accounts and Removed Accounts, shall be marked as Schedule 1 ---------- to this Agreement and is hereby incorporated into and made a part of this Agreement. If the arrangements with respect to the Receivables hereunder shall constitute a loan and not a purchase and sale of such Receivables, it is the intention of the parties hereto that this Agreement shall constitute a security agreement under applicable law, and that Seller shall be deemed to have granted to the Issuer a first priority perfected security interest in all of Seller's right, title and interest, whether owned on the FCMT Termination Date or thereafter acquired, in, to and under the Receivables and the other Trust Assets conveyed by Seller, and all money, accounts, general intangibles, chattel paper, instruments, documents, goods, investment property, deposit accounts, certificates of deposit, letters of credit, and advices of credit consisting of, arising from or related to the Trust Assets, to secure its obligations hereunder. Seller and Servicer acknowledge that all instruments (including certificates of deposit) and bank accounts the security interest in which has been transferred to the Issuer hereby and which are maintained with Servicer or of which Servicer has possession, shall be so maintained and held by Servicer on behalf and for the benefit of the Issuer, in accordance with the terms of this Agreement. 4 Additionally, for purposes of perfecting the Issuer's security interest in bank accounts pledged to Seller, which security interest Seller has transferred to the Issuer hereunder, this Agreement constitutes and shall be deemed (i) notice to Seller and Servicer by the Issuer of the Issuer's security interest in such bank accounts, and (ii) Seller's and Servicer's acknowledgment of and consent to the Issuer's notice and the Issuer's security interest in such bank accounts. Section 2.2. Acceptance by Issuer. -------------------- (a) The Issuer hereby acknowledges its acceptance of all right, title and interest to the property, now existing and hereafter created, conveyed to the Issuer pursuant to Section 2.1. The Owner Trustee shall maintain a copy of ----------- Schedule 1, as delivered from time to time, at its Corporate Trust Office. - ---------- (b) The Owner Trustee hereby agrees not to disclose to any Person any of the account numbers or other information contained in the computer files or microfiche lists marked as Schedule 1 and delivered to the Owner Trustee or the ---------- Issuer, from time to time, except (i) to a Successor Servicer or as required by a Requirement of Law applicable to the Owner Trustee, (ii) in connection with the performance of the Owner Trustee's or the Issuer's duties hereunder, (iii) to the Indenture Trustee in connection with its duties in enforcing the rights of Noteholders or (iv) to bona fide creditors or potential creditors of the Servicer or Seller for the limited purpose of enabling any such creditor to identify Receivables or Accounts subject to this Agreement or the Receivables Purchase Agreement. The Owner Trustee and the Issuer each agrees to take such measures as shall be reasonably requested by Seller to protect and maintain the security and confidentiality of such information and, in connection therewith, shall allow Seller or its duly authorized representatives to inspect the Owner Trustee's security and confidentiality arrangements as they specifically relate to the administration of the Issuer from time to time during normal business hours upon prior written notice. The Owner Trustee and the Issuer shall provide Seller with notice five (5) Business Days prior to disclosure of any information of the type described in this Section 2.2(b). -------------- Section 2.3. Representations and Warranties of Seller Relating to ------------------------------------------------------ Seller. Seller hereby represents and warrants as of the Initial Closing Date - ------ that: (a) Organization and Good Standing. Seller is a corporation duly ------------------------------ organized and validly existing in good standing under the laws of Delaware, and has full corporate power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted, and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement. 5 (b) Due Qualification. Seller is not required to qualify to do ----------------- business as a foreign corporation in any state or to obtain any licenses or approvals in any jurisdiction in order to conduct its business. (c) Due Authorization. The execution and delivery of this Agreement and ----------------- the Receivables Purchase Agreement and the consummation of the transactions provided for herein and therein have been duly authorized by Seller by all necessary corporate action on the part of Seller. (d) No Conflict. The execution and delivery of this Agreement and the ----------- Receivables Purchase Agreement, the performance of the transactions contemplated hereby and thereby and the fulfillment of the terms hereof and thereof will not conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, any indenture, contract, agreement, mortgage, deed of trust, or other instrument to which Seller is a party or by which it or any of its property is bound. (e) No Violation. The execution and delivery of this Agreement and the ------------ Receivables Purchase Agreement, the performance of the transactions contemplated hereby and thereby and the fulfillment of the terms hereof and thereof will not conflict with or violate any Requirements of Law applicable to Seller. (f) No Proceedings. There are no proceedings or investigations pending -------------- or, to the best knowledge of Seller, threatened against Seller, before any court, regulatory body, administrative agency, or other tribunal or governmental instrumentality (i) asserting the invalidity of this Agreement or the Receivables Purchase Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or the Receivables Purchase Agreement, (iii) seeking any determination or ruling that, in the reasonable judgment of Seller, would materially and adversely affect the performance by Seller of its obligations under this Agreement or the Receivables Purchase Agreement, (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement or the Receivables Purchase Agreement or (v) seeking to impose income taxes on the Issuer (other than as a wholly-owned subsidiary of Seller). (g) Eligibility of Accounts. As of the Initial FCMT Cut-Off Date, each ----------------------- Account then existing was an Eligible Account. (h) All Consents Required. All approvals, authorizations, consents, --------------------- orders or other actions of any Person or of any governmental body or official required in connection with the execution and delivery of this Agreement, the performance of the transactions contemplated by this Agreement, and the fulfillment of or terms hereof, have been obtained. 6 (i) Bulk Sales. The execution, delivery and performance of this ---------- Agreement do not require compliance with any "bulk sales" law by Seller. (j) Solvency. The transactions under this Agreement do not and will not -------- render Seller insolvent, nor have such transactions been entered into in contemplation of the Seller's insolvency. (k) Selection Procedures. No selection procedures believed by --------------------- Seller to be materially adverse to the interests of the Issuer or the Noteholders were utilized by Seller in selecting the Accounts. The representations and warranties set forth in this Section 2.3 shall survive ----------- the transfer of the Trust Assets to the Issuer. Upon discovery by Seller, the Servicer or the Owner Trustee of a breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the others and any Enhancement Provider. Seller hereby represents and warrants, with respect to any Series, as of the Closing Date with respect to such Series, unless otherwise stated in the related Indenture Supplement, that the representations and warranties of Seller set forth in this Section 2.3 will be true and correct as of such date. - ----------- Section 2.4 Representations and Warranties of Seller Relating to this --------------------------------------------------------- Agreement and the Receivables. - ----------------------------- (a) Binding Obligation; Valid Transfer and Security Interest. Seller -------------------------------------------------------- hereby represents and warrants as of each date the representations are made or deemed made in Sections 4.1(e), (j) and (k) of the Receivables Purchase --------------- --- --- Agreement that such representations are true and correct. Seller hereby represents and warrants to the Issuer that, as of the Initial Closing Date and, with respect to any Series issued after the Initial Closing Date, unless otherwise stated in the related Indenture Supplement, as of the Closing Date for such Series: (i) This Agreement constitutes a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity). (ii) This Agreement constitutes either (A) a valid transfer to the Issuer of all right, title and interest of Seller in, to and under the Trust Assets, and such property will be held by the Issuer free and clear of any Lien of any Person claiming through or under Seller or its Affiliates, except for (w) the interests of the FCMT Trustee, the Indenture Trustee and the Noteholders, (x) Liens permitted under Section 2.5(b), (y) the Seller Interest and (z) Seller's right to -------------- receive interest accruing on, and investment earnings in respect of, the Collection Account or any Series Account as provided in the Transaction 7 Documents or (B) a grant of a security interest in such property to the Issuer, which is enforceable with respect to (i) upon execution and delivery of this Agreement, the Collateral Certificate, all monies due or to become due with respect thereto and other proceeds thereof, (ii) upon the FCMT Termination Date, the then existing Receivables, all monies due or to become due with respect thereto, the Collections, Recoveries and other proceeds thereof, and Insurance Proceeds relating thereto and (iii) thereafter, at the time new Receivables arise, with respect to such Receivables, all monies due or to become due with respect thereto, and the Collections, Recoveries and other proceeds thereof and Insurance Proceeds relating thereto. If this Agreement constitutes the grant of a security interest to the Issuer in such property, upon the filing of the financing statements described in Section 2.1 and in the case of the Receivables hereafter arising in the ----------- Accounts and proceeds thereof and Insurance Proceeds relating to such Receivables, as the same arise, the Issuer shall have a first priority perfected security interest in such property, except for Liens permitted under Section 2.5(b). Neither Seller nor any Person claiming ------------- through or under Seller shall have any claim to or interest in the Collection Account, the Excess Funding Account or any Series Account, except for Seller's right to receive interest accruing on, and investment earnings in respect of, the Collection Account, the Excess Funding Account or any Series Account, as provided in the Transaction Documents, Seller's right to receive payments from the Collection Account or any Series Account in accordance with the provisions of the Indenture, and, if this Agreement constitutes the grant of a security interest in such property, except for the interest of Seller in such property as a debtor for purposes of the UCC as in effect in the applicable jurisdiction. Without limiting the generality of the foregoing, from and after the FCMT Termination Date, the representations and warranties specified in Schedule 2 are true and ---------- correct. (b) Eligibility of Receivables. Seller hereby represents and warrants --------------------------- as of each date the representations are made or deemed made in Section 4.1(l) of ------------- the Receivables Purchase Agreement (other than the first sentence thereof) that such representations are true and correct. As of the FCMT Termination Date, Seller agrees that all representations and warranties made by it with respect to any Account or Receivable pursuant to Section 2.4 of the Pooling and Servicing ----------- Agreement shall be deemed for all purposes (including the reassignment obligations under Section 2.4(e)) to have been made pursuant to this Agreement -------------- as of the day when each was made or deemed made, as if this Agreement had been in effect on that day. Thereafter, each day on which any new Receivable is transferred by Seller to the Issuer, Seller shall be deemed to represent and warrant to the Issuer that (i) each Receivable transferred on such day is an Eligible Receivable, (ii) each Receivable transferred on such day has been transferred to the Issuer free and clear of any Lien of any Person (other than Liens permitted under Section 2.5(b), the Seller Interest and Seller's right to ------------- receive interest accruing on, and investment earnings in respect of, the Collection Account or any Series Account, as provided in the Transaction 8 Documents) and in compliance, in all material respects, with all Requirements of Law applicable to Seller, (iii) with respect to each such Receivable, all consents, licenses, approvals or authorizations of or registrations or declarations with any Governmental Authority required to be obtained, effected or given by Seller in connection with the transfer of such Receivable to the Issuer have been duly obtained, effected or given and are in full force and effect and (iv) the representations and warranties set forth in Section 2.4(a) ------------- are true and correct with respect to each Receivable transferred on such day as if made on such day. (c) Notice of Breach. The representations and warranties set forth in ---------------- this Section 2.4 shall survive the transfer of the respective Receivables to the ----------- Issuer. Upon discovery by Seller, the Servicer or the Owner Trustee of a breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the others and any Enhancement Provider. (d) Reassignment of Ineligible Receivables. -------------------------------------- (i) Reassignment of Receivables. In the event any representation or --------------------------- warranty contained in Section 2.4(b) is not true and correct in any material -------------- respect as of the date specified therein with respect to any Receivable or the related Account unless cured within sixty (60) days (or such longer period, not in excess of 120 days, as may be agreed to by the Indenture Trustee) after the earliest to occur of the discovery thereof by Seller or receipt by Seller of written notice thereof given by the Owner Trustee, the Indenture Trustee or the Servicer, or the date on which the RPA Seller is required to make any corresponding purchase under the Receivables Purchase Agreement, then Seller shall accept reassignment of all Receivables in the related Account ("Ineligible ---------- Receivables") on the terms and conditions set forth in paragraph (ii) below. - ----------- Notwithstanding anything contained in this Section 2.4(d) to the contrary, in ------------- the event of breach of any representation and warranty set forth in Section ------- 2.4(b) with respect to any Receivable having been conveyed to Seller or the - ----- Issuer free and clear of any Lien of any Person claiming through or under Seller and its Affiliates and in compliance in all material respects with all Requirements of Law applicable to RPA Seller or Seller, immediately upon the earlier to occur of the discovery of such breach by Seller or receipt by Seller of written notice of such breach given by the Owner Trustee, the Indenture Trustee or the Servicer, Seller shall repurchase and the Owner Trustee shall convey, without recourse, representation or warranty, all of the Owner Trustee's right, title and interest in each Ineligible Receivable, and the Servicer shall promptly notify the Rating Agencies of such event. (ii) Price of Reassignment. The Servicer shall deduct the portion of --------------------- such Ineligible Receivables reassigned to the Seller which are Principal Receivables from the aggregate amount of the Principal Receivables used to calculate the Seller Amount and the various Allocation Percentages. If the exclusion of an Ineligible Receivable from the calculation of the Seller Amount would cause the Seller Amount to be less than the Minimum Seller Amount, then Seller shall, on the date of 9 retransfer of such Ineligible Receivable, make a deposit in the Collection Account (for allocation pursuant to the Indenture) in immediately available funds in an amount equal to the Shortfall Amount to the extent Seller has received such funds from RPA Seller under the Receivables Purchase Agreement, and, if Seller has not received such funds, to the extent Seller has funds available for such purpose after amounts payable to Securityholders (as defined in the Receivables Purchase Agreement) have been paid in full. The amounts so deposited are to be treated for all purposes hereof as Collections on such Ineligible Receivables. Upon reassignment of any Ineligible Receivable, the Issuer shall automatically and without further action be deemed to transfer, assign, set over and otherwise convey to Seller or its designee, without recourse, representation or warranty, all the right, title and interest of the Issuer in and to such Ineligible Receivable, all Recoveries related thereto, all monies and amounts due or to become due and all proceeds thereof and such reassigned Ineligible Receivable shall be treated by the Issuer as collected in full as of the date on which it was transferred. The obligation of Seller to accept reassignment of any Ineligible Receivables conveyed to the Issuer by Seller, and to make the deposits, if any, required to be made to the Collection Account as provided in this Section, shall constitute the sole remedy respecting the event giving rise to such obligation available to the Issuer, the Noteholders (or the Owner Trustee on behalf of the Noteholders) or any Series Enhancer. The Issuer shall execute such documents and instruments of transfer or assignment and take such other actions as shall reasonably be requested and provided by the Seller to effect the conveyance of such Ineligible Receivables pursuant to this Section ------- 2.4(d), but only upon receipt of an Officer's Certificate from Seller that - ----- states that all conditions set forth in Section 2.5 have been satisfied. Each ----------- party hereto agrees that the failure by the Seller to make the deposit in accordance with this Section 2.4(d) shall not give rise to any claim against the ------------- Seller. (e) Reassignment of Issuer Portfolio. If any representation or warranty -------------------------------- of a Seller set forth in Section 2.4(a) is not true and correct in any material ------------- respect and such breach has a material adverse effect on the Receivables or the availability of the proceeds thereof to the Issuer (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement), then either the Owner Trustee, the Indenture Trustee or the Holders of Notes holding not less than 50% of the aggregate principal amount of all Outstanding Notes, by notice then given to Seller and the Servicer (and to the Owner Trustee and Indenture Trustee if given by the Noteholders), may direct Seller to accept a reassignment of the Receivables conveyed to the Issuer by Seller if such breach and any material adverse effect caused by such breach is not cured within sixty (60) days of such notice (or within such longer period, not in excess of 120 days, as may be specified in such notice), and upon those conditions Seller shall be obligated to accept such reassignment on the terms set forth below; provided, however, that the Receivables will not be reassigned -------- ------- to Seller if, on any day prior to the end of such 60-day or longer period (i) the relevant representation and warranty shall be true and correct in 10 all material respects as if made on such day and (ii) Seller shall have delivered to the Owner Trustee a certificate of an authorized officer describing the nature of such breach and the manner in which the relevant representation and warranty has become true and correct. Seller shall deposit in the Collection Account in immediately available funds not later than 1:00 p.m., New York City time, on the Transfer Date for the first Distribution Date following the Monthly Period in which such reassignment obligation arises, in payment for such reassignment, an amount equal to the deposit amount for the reassignment to the extent Seller has received such funds from RPA Seller under the Receivables Purchase Agreement, and, if Seller has not received such funds, to the extent Seller has funds available for such purpose after amounts payable to Securityholders (as defined in the Receivables Purchase Agreement) have been paid in full. The deposit amount for such reassignment will be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. Notwithstanding anything to the contrary in this Agreement, such amounts shall be distributed to the Noteholders on such Distribution Date in accordance with the terms of each Indenture Supplement. If the Owner Trustee, the Indenture Trustee or the Noteholders give notice directing the Seller to accept a reassignment of the Receivables as provided above, the obligation of Seller to accept such reassignment pursuant to this Section 2.4(e) and to make the deposit required to ------------- be made to the Collection Account as provided in this paragraph shall constitute the sole remedy respecting an event of the type specified in the first sentence of this Section 2.4(e) available to the Noteholders (or the Owner Trustee or ------------- Indenture Trustee on behalf of the Noteholders) or any Series Enhancer. Upon reassignment of the Receivables on such Distribution Date, the Issuer shall automatically and without further action be deemed to sell, transfer, assign, set-over and otherwise convey to the Seller, without recourse, representation or warranty, all the right, title and interest of the Issuer in and to the Receivables and Recoveries allocable to the Issuer, and all monies and amounts due or to become due with respect thereto and all proceeds thereof. The Issuer shall execute such documents and instruments of transfer or assignment and take such other actions as shall reasonably be requested by the Seller to effect the conveyance of such property pursuant to this Section. Each party hereto agrees that the failure by the Seller to make the deposit in accordance with this Section 2.4(e) shall not give rise to any claim against the Seller. - ------------- (f) Seller will not add additional RPA Seller parties to the Receivables Purchase Agreement, and not become a party to a new receivables purchase agreement with any party other than FCNB, without first satisfying the Rating Agency Condition. (g) Seller will be adequately capitalized to engage in the transactions contemplated by its Certificate of Incorporation. 11 Section 2.5. Covenants of Seller. Seller hereby covenants that: ------------------- (a) Receivables to be Accounts. Seller will take no action to cause any -------------------------- Receivable to be characterized as anything other than an "account" (as defined in the UCC as in effect in the applicable jurisdiction). Each Receivable shall be payable pursuant to a contract which does not create a Lien on any goods purchased thereunder. (b) Security Interests. Except for the transfers hereunder and under ------------------ the Transfer and Servicing Agreement, Seller will not sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume or suffer to exist any Lien on any Receivable, whether now existing or hereafter transferred to the Issuer, or any interest therein. Seller will immediately notify the Owner Trustee of the existence of any Lien on any Receivable; and Seller shall defend the right, title and interest of the Issuer in, to and under the Receivables, whether now existing or hereafter transferred to the Issuer, against all claims of third parties; provided, however, that nothing in this Section 2.5(b) shall -------- ------- ------------- prevent or be deemed to prohibit Seller from suffering to exist upon any of the Receivables any Liens for state, municipal or other local taxes if such taxes shall not at the time be due and payable or if Seller shall currently be contesting the validity thereof in good faith by appropriate proceedings and shall have set aside on its books adequate reserves with respect thereto; provided further, however, that nothing in this Section 2.5(b) shall prevent or - -------- ------- ------- -------------- be deemed to prohibit Seller from granting a participation interest in the Seller Interest. (c) Account Allocations. If Seller is unable for any reason to transfer ------------------- Receivables to the Issuer in accordance with the provisions of this Agreement (including by reason of the occurrence of an Insolvency Event) then Seller agrees that, solely for purposes of payments under this Agreement, it shall in any such event allocate, after the occurrence of such event, payments on each Account with respect to the principal balance of such Account first to the oldest principal balance of such Account (it being understood that the foregoing allocation does not affect, with respect to any obligor, the priority of application of cardholder payments provided for in the related Cardholder Agreement(s)) and to have such payments applied as Collections in accordance with the Indenture. The parties hereto agree that Finance Charge Receivables, whenever created, accrued in respect of Principal Receivables which have been conveyed to the Issuer, or which would have been conveyed to the Issuer but for the above described inability to transfer such Receivables, shall continue to be a part of the Issuer notwithstanding any cessation of the transfer of additional Principal Receivables to the Issuer and Collections with respect thereto shall continue to be allocated and paid in accordance with the Indenture. (d) Delivery of Collections. Seller agrees to pay to the Servicer (if ----------------------- the Servicer is not then First Consumers National Bank) promptly (but in no event later than two Business Days after receipt) all Collections received by Seller in respect of the Receivables. 12 (e) Finance Charges and Other Fees. Seller agrees that, except as ------------------------------ otherwise required by any Requirement of Law or as is deemed by Seller to be advisable for its MasterCard and VISA programs based on a good faith assessment by Seller of the various factors impacting the use of its MasterCard and VISA cards, Seller shall not permit FCNB to reduce at any time (i) the Finance Charges assessed in respect of any Accounts, or (ii) any other fees charged on any of the Accounts if, as a result of such reduction, FCNB's reasonable expectation of the Portfolio Yield in respect of any Series as of such date would be less than the current Base Rate applicable to such Series. (f) Cardholder Agreements and Cardholder Guidelines. Seller agrees to ----------------------------------------------- comply with and perform its obligations under the Cardholder Agreements relating to the Accounts and the Cardholder Guidelines, except insofar as any failure so to comply or conform would not materially and adversely affect the rights of the Issuer the Noteholders under the Transaction Documents. In that regard, except as aforesaid, and so long as such changes are made applicable to the comparable segments of those MasterCard and VISA accounts owned and serviced by the Servicer which have characteristics the same as, or substantially similar to, the Accounts which are subject hereto (if any), Seller shall be free to change the terms and provisions of such Cardholder Agreements or the Cardholder Guidelines in any respect (including, without limitation, the calculation of the amount, or the timing, of charge offs). FCNB shall provide to each Rating Agency written notice of any such change that (i) lowers the periodic finance charge rate used to calculate Finance Charges on any Account or changes the minimum monthly payment applicable to any Account; (2) changes any periodic finance charge rate used to calculate Finance Charges on any Account from a floating rate to a fixed rate or from a fixed rate to a floating rate; (3) reduces any Cardholder Fees, Cash Advance Fees or other fees applicable to any Account or (4) changes the calculation of the amount, or the timing, of charge offs. (g) Sale Treatment. Seller agrees to treat the conveyance of -------------- Receivables hereunder as a sale for accounting purposes. (h) Compliance with Law. Seller hereby agrees to comply in all material ------------------- respects with all Requirements of Law applicable to Seller. (i) Activities of Seller. Seller shall not engage in any business or -------------------- activity of any kind or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking which is not directly related to the transactions contemplated and authorized by the Transaction Documents or which is otherwise a Permitted Transaction. (j) Indebtedness. Seller shall not create, incur, assume or suffer to ------------ exist any Indebtedness or other liability whatsoever, except (i) owing to the Issuer under this Agreement or the Receivables Purchase obligations incurred or Agreement, 13 (ii) liabilities incident to the maintenance of its corporate existence in good standing and the ownership of the Receivables, (iii) obligations incident to a Permitted Transaction or (iv) obligations to FCNB or Spiegel evidenced by a Subordinated Note. (k) Guarantees. Seller shall not become or remain liable, directly or ---------- contingently, in connection with any Indebtedness or other liability of any other Person, whether by guarantee, endorsement (other than endorsements of negotiable instruments for deposit or collection in the ordinary course of business), agreement to purchase or repurchase, agreement to supply or advance funds, or otherwise except incident to a Permitted Transaction. (l) Investments. Seller shall not make or suffer to exist any loans or ----------- advances to, or extend any credit to, or make any investments (by way of transfer of property, contributions to capital, purchase of stock or securities or evidences of indebtedness, acquisition of the business or assets, or otherwise) in, any Person except (i) for purchases of Receivables pursuant to the Receivables Purchase Agreement, (ii) for investments in Permitted Investments in accordance with the terms of this Agreement or (iii) pursuant to a Permitted Transaction. (m) Distributions. Seller shall not declare or pay, directly or ------------- indirectly, any dividend or make any other distribution (whether in cash or other property) with respect to the profits, assets or capital of Seller or any Person's interest therein, or purchase, redeem or otherwise acquire for value any of its capital stock now or hereafter outstanding, except that so long as no Event of Default or Pay Out Event has occurred and is continuing and no Event of Default or Pay Out Event would occur as a result thereof or after giving effect thereto, Seller may declare and pay dividends on its capital stock. (n) Agreements. Seller shall not become a party to, or permit any of ---------- its properties to be bound by, any indenture, mortgage, instrument, contract, agreement, lease or other undertaking, except the Transaction Documents and except incidental to a Permitted Transaction or amend or modify the provisions of its Certificate of Incorporation or issue any power of attorney except to the Owner Trustee or to the Servicer. (o) Receivables Purchase Agreement. Seller shall not give any consent ------------------------------- to FCNB under the Receivables Purchase Agreement unless the Rating Agency Condition is satisfied with respect thereto. (p) Separate Corporate Existence. Seller shall: ---------------------------- (i) Maintain its own deposit account or accounts, separate from those of any Affiliate, with commercial banking institutions. The funds of 14 Seller will not be diverted to any other Person or for other than corporate uses of Seller except for dividends allowed under Section ------- 2.5(m). ------ (ii) Ensure that, to the extent that it shares the same officers or other employees as any of its stockholders or Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees. (iii) Ensure that, to the extent that it jointly contracts with any of its stockholders or Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that Seller contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs. All material transactions (other than this Agreement and the Receivables Purchase Agreement) between Seller and any of its Affiliates shall be only on an arm's length basis. (iv) Maintain a principal executive and administrative office through which its business is conducted separate from those of its Affiliates. To the extent that Seller and any of its stockholders or Affiliates have offices in the same location, there shall be a fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses. (v) Conduct its affairs strictly in accordance with its Certificate of Incorporation and observe all necessary, appropriate and customary corporate formalities, including, but not limited to, holding all regular and special stockholders' and directors' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. (vi) Conduct its own business in its own name. (vii) Use separate stationary, invoices and checks. (viii) Hold itself out as a separate entity. 15 (q) Location of Records. Seller (i) shall not move outside the State of ------------------- Delaware the location of its chief executive office without 45 days' prior written notice to the Owner Trustee and (ii) will promptly take all actions required (including but not limited to all filings and other acts necessary or advisable under the UCC of each applicable jurisdiction) in order to continue the first priority perfected ownership interest of the Noteholders in all Receivables now owned or hereunder created. Seller will give the Owner Trustee prompt notice of a change within the State of Delaware of the location of its chief executive office. Section 2.6. Addition of Accounts. -------------------- (a) If, on any day after the FCMT Termination Date, the Aggregate Principal Balance is less than the Minimum Aggregate Principal Balance, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 days thereafter) Seller shall designate additional Eligible Accounts ("Additional Accounts") to be included as Accounts ------------------- and shall transfer the Receivables in such Additional Accounts to the Issuer, in a sufficient amount so that the Aggregate Principal Balance on such day would have, if the Receivables from such Additional Accounts had been transferred to the Issuer on or prior to such day, at least equaled the Minimum Aggregate Principal Balance. (b) In addition to its obligation under Section 2.6(a), Seller may, but -------------- shall not be obligated to, from time to time, designate Additional Accounts to be included as Accounts, so long as after giving effect to such addition not more than 20% of the Receivables, by outstanding balance, will be 30 or more days delinquent (and for this purpose, Receivables in an Account shall be considered delinquent if less than 100% of a required payment was received). (c) Seller agrees that any Receivables from Additional Accounts shall be transferred by Seller to the Issuer under Section 2.6(a), (b) or (e) upon and -------------- --- --- subject to the following conditions: (i) On or before the fifth Business Day (the "Notice Date") ----------- prior to the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller shall give the Owner Trustee and the Servicer (if a Person other than Seller) written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferred; (ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) shall, if such designation of Additional Accounts is made pursuant to Section 2.6(b) or (e) and if the addition -------------- --- of such Additional Accounts 16 (1) would cause the quotient (the "Annual Quotient") --------------- of (x) the sum of the Annual Account Additions after giving effect to such addition, plus the related Base Amount, divided by (y) the related Base Amount to exceed 1.20, or (2) would cause the quotient (the "Quarterly --------- Quotient") of (x) the sum of the Quarterly Account Additions -------- after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15; in either case, deliver a letter from each Rating Agency to the Indenture Trustee by the Addition Date confirming that the Rating Agency Condition has been satisfied with respect to the addition of such Additional Accounts; (iii) On or prior to the Addition Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller -------------- --- shall have delivered to the Owner Trustee a written Assignment Agreement (including an acceptance by the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) in substantially the form of Exhibit A (the "Assignment Agreement") and shall have indicated --------- -------------------- in its books and records, including the computer files of the Receivables, that the Receivables created in connection with the Additional Accounts have been transferred by Seller to the Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number, and the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), which computer file -------------- --- or microfiche list shall be marked as Schedule 1 to the Assignment ---------- Agreement, delivered to the Owner Trustee as confidential and proprietary, shall be as of the date of such Assignment Agreement and incorporated into and made a part of such Assignment Agreement and this Agreement; (iv) Seller shall be deemed to represent and warrant that (x) each Additional Account is, as of the Addition Date, an Eligible Account, (y) no selection procedures reasonably believed by Seller to be materially adverse to the interests of the Noteholders were utilized in selecting the Additional Accounts from the available Eligible Accounts, and (z) as of the Addition Date, Seller is not insolvent and will not be rendered insolvent by adding any such Additional Account; (v) Seller shall be deemed to represent and warrant that, as of the Addition Date, the representations and warranties set out in Schedule 2 are correct; and, without limiting the generality of the ---------- foregoing, the Assignment Agreement constitutes either (x) a valid transfer to the Issuer of all right, title 17 and interest of Seller in, to and under the Receivables then existing and thereafter arising in respect of the Additional Accounts, all monies due or to become due with respect thereto (including all Finance Charge Receivables), and all proceeds of such Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer free and clear of any Lien of any Person, except for (i) Liens permitted under Section 2.5(b), (ii) the Seller Interest and (iii) -------------- Seller's right to receive interest accruing on, and investment earnings in respect of, the Collection Account or any Series Account, as provided in this Agreement and any Indenture Supplement, or (y) a grant of a security interest in such property to the Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer in such property, upon the filing of a financing statement as described in Section 2.1 with respect to such Additional Accounts and in the case of ----------- the Receivables of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such Receivables, upon such transfer, the Issuer shall have a first priority perfected security interest in such property, except for Liens permitted under Section 2.5(b), the Seller Interest and Seller's right to receive -------------- interest accruing on, and investment earnings in respect of, the Collection Account or any Series Account, as provided in this Agreement and any Indenture Supplement; (vi) Seller shall, on the Addition Date for Additional Accounts added pursuant to Section 2.6(a) or (b), deliver a certificate of a -------------- --- Vice President or more senior officer confirming the items set forth in paragraphs (ii), (iii), (iv) and (v) above; and ---- ----- ---- --- (vii) Seller shall, on the Addition Date for Additional Accounts added pursuant to Section 2.6(a) or (b), deliver an Opinion of Counsel -------------- --- with respect to the Receivables in the Additional Accounts to the Owner Trustee substantially in the form of Exhibit F-2, and which shall be ----------- reasonably acceptable to the Rating Agencies. (d) Seller shall provide to each Rating Agency and to each Enhancement Provider prior written notice each time Additional Accounts are added pursuant to Section 2.6(a) or (b). -------------- --- (e) In addition to the occasional designation of Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new MasterCard or VISA account originated in the normal course of FCNB's business 18 after the FCMT Termination Date, where the Receivables with respect to such accounts are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Trust Assets arising thereunder automatically transferred to the Issuer) effective on the date on which such account is created; provided, however, that such automatic inclusion -------- ------- and transfer shall not occur with respect to any such account if: (i) such account does not qualify as an Eligible Account, (ii) the transfer to the Issuer of the Receivables in such Account, if such Accounts had been designated by Seller pursuant to Section 2.6(b), would have caused the limitations set forth -------------- in Section 2.6(c)(ii) to be exceeded (unless there shall have been delivered to ------------------ the Indenture Trustee a letter from each Rating Agency confirming the Rating Agency Condition has been satisfied with respect to the addition of such Additional Account), or (iii) Seller otherwise designates such account as an account which is not to be included as an Account pursuant to this Section ------- 2.6(e). On or before the fifth Business Day of each month next succeeding a - ------ calendar month in which Accounts were included pursuant to the preceding sentence, Seller shall indicate in its computer files of the receivables that the Receivables created in connection with such included Accounts have been transferred to the Issuer. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at any time. -------------- Section 2.7. Removal of Accounts. ------------------- (a) Subject to the conditions set forth below, after the FCMT Termination Date, Seller may designate from time to time Accounts no longer to be designated for inclusion in the Issuer (the "Removed Accounts"); provided, ---------------- -------- however, that Seller shall not make more than one such designation in any - ------- Monthly Period. On or before the fifth Business Day (the "Removal Notice Date") ------------------- prior to the date on which Removed Accounts shall be designated (the "Removal ------- Date"), Seller shall give the Owner Trustee, the Servicer and each Enhancement - ---- Provider written notice that the Receivables from such Removed Accounts are to be retransferred to Seller. (b) Seller shall be permitted to designate and require retransfer to it of the Receivables from Removed Accounts only upon satisfaction of the following conditions: (i) If the Accounts to be removed have outstanding Receivables, Seller shall satisfy the Rating Agency Condition with respect thereto by such Removal Date; (ii) on each Removal Date, the Owner Trustee shall deliver to Seller a written Reassignment Agreement in substantially the form of Exhibit B (the "Reassignment Agreement") prepared by Seller, and Seller --------- ---------------------- shall deliver to the Owner Trustee a computer file, microfiche or written list containing a true and complete schedule identifying all Removed Accounts 19 specifying for each such Removed Account, as of the Removal Notice Date, its account number and the Receivable balance thereof. Such computer file, microfiche or written list shall be as of the date of such Reassignment Agreement incorporated into and made a part of this Agreement; (iii) Seller shall represent and warrant as of each Removal Date that (A) the list of Removed Accounts, as of the Removal Notice Date, complies in all material respects with the requirements of (ii) above; (B) Accounts (or administratively convenient groups of Accounts, such as billing cycles) were chosen for removal randomly or otherwise not on a basis intended to select particular accounts or groups of accounts for any reason other than administrative convenience, and no selection procedure used by Seller which is adverse to the interests of the Noteholders was utilized in selecting the Removed Accounts; and (C) as of the Removal Notice Date and as of the Removal Date, Seller is not insolvent and such removal was not made in contemplation of the Seller's insolvency; (iv) The removal of any Receivables of any Removed Accounts on any Removal Date shall not, in the reasonable belief of Seller, cause a Pay Out Event to occur, or an event which with notice or lapse of time or both would constitute a Pay Out Event; (v) The Aggregate Principal Balance shall not be less than the Minimum Aggregate Principal Balance after giving effect to such removal; (vi) Seller shall have delivered to the Owner Trustee and to each Enhancement Provider a certificate of an officer of Seller confirming the items set forth in (i) through (v) above. The Owner Trustee may conclusively rely on such certificate, shall have no duty to make inquiries with regard to the matters set forth therein and shall incur no liability in so relying; and (vii) such other conditions and restrictions as may at any time be specified in an Officer's Certificate of the Seller delivered to the Owner Trustee shall have been satisfied, it being understood that (i) no such additional conditions or restrictions may conflict with or override any of the conditions and restrictions specified above, and (ii) upon delivery of such an Officer's Certificate to the Owner Trustee, the additional conditions and restrictions specified therein shall be deemed to be incorporated by reference into and become a part of this Agreement. Upon satisfaction of the above conditions, the Owner Trustee shall execute and deliver the Reassignment Agreement to Seller, and the Receivables from the Removed Accounts shall no longer constitute a part of the Issuer. 20 (d) On and after the FCMT Termination Date, on the date on which an Account becomes a Defaulted Account, the Trust shall automatically and without further action or consideration be deemed to transfer, set over, and otherwise convey to the Seller, without recourse, representation or warranty, all the right, title and interest of the Trust in and to the Receivables in such Defaulted Account, all monies due or to become due with respect thereto, all proceeds of such Receivables allocable to the Trust with respect to such Receivable, excluding Recoveries relating thereto, which shall remain a part of the Trust Assets. Section 2.8. Discount Option. (a) Seller shall have the option to --------------- designate at any time and from time to time a percentage or percentages, which may be a fixed percentage or a variable percentage based on a formula (the "Discount Percentage"), of all or any specified portion of Principal Receivables ------------------- created after the Discount Option Date to be treated as Finance Charge Receivables ("Discount Option Receivables"). Seller shall also have the option --------------------------- of reducing or withdrawing the Discount Percentage, at any time and from time to time, on and after such Discount Option Date. Seller shall provide to the Servicer, the Owner Trustee and any Rating Agency 30 days' prior written notice of the Discount Option Date, and such designation shall become effective on the Discount Option Date (i) unless such designation in the reasonable belief of Seller would cause a Pay Out Event with respect to any series to occur, or an event which, with notice or lapse of time or both, would constitute a Pay Out Event with respect to any Series or (ii) unless the Rating Agency Condition shall not have been satisfied with respect to such designation; provided that -------- for this purpose Moody's shall not be deemed to be a "Rating Agency." (b) After the Discount Option Date, Seller shall treat Discount Option Receivable Collections as Collections of Finance Charge Receivables. ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES Prior to the FCMT Termination Date, the Receivables shall be serviced as provided in the Pooling and Servicing Agreement, and this Article III will have no effect. On and after the FCMT Termination Date: Section 3.1. Acceptance of Appointment and Other Matters Relating to ------------------------------------------------------- the Servicer. - ------------ (a) FCNB agrees to act as the Servicer under this Agreement. The Noteholders by their acceptance of the Notes consent to FCNB's acting as Servicer. (b) Subject to the provisions of this Agreement, the Servicer shall service and administer the Receivables and shall collect payments due under the Collateral Certificate and the Receivables in accordance with its customary and usual servicing 21 procedures for servicing credit card receivables comparable to the Receivables and in accordance with the Cardholder Guidelines and shall have full power and authority, acting alone or through any party properly designated by it hereunder, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing and subject to Section 7.1, the Servicer is hereby ----------- authorized and empowered (i) unless such power and authority is revoked by the Indenture Trustee on account of the occurrence of a Servicer Default pursuant to Section 7.1, to make withdrawals from the Collection Account as set forth in - ----------- this Agreement, (ii) unless such power and authority is revoked by the Indenture Trustee on account of the occurrence of a Servicer Default pursuant to Section 7.1, to instruct the Indenture Trustee to make withdrawals and payments from the Series Accounts in accordance with such instructions as set forth in this Agreement, (iii) unless such power and authority is revoked by the Indenture Trustee on account of the occurrence of a Servicer Default pursuant to Section 7.1, to instruct the Indenture Trustee in writing as provided herein, and (iv) unless such power and authority is revoked by the Indenture Trustee on account of the occurrence of a Servicer Default pursuant to Section 7.1, to execute and ----------- deliver, on behalf of the Issuer for the benefit of the Noteholders, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Receivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with applicable law and regulations, to commence enforcement proceedings with respect to such Receivables. The Owner Trustee shall furnish the Servicer with any powers of attorney and other documents necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder. (c) If Seller is unable for any reason to transfer Receivables to the Issuer in accordance with the provisions of this Agreement (including by reason of the occurrence of an Insolvency Event), the Servicer agrees to allocate and pay to the Issuer, after such date, all Collections as contemplated by Section ------- 2.5(c). - ------ (d) The Servicer shall not be obligated to use separate servicing procedures, offices, employees or accounts for servicing the Receivables from the procedures, offices, employees and accounts used by the Servicer in connection with servicing other credit card receivables. (e) The Servicer shall maintain fidelity bond coverage insuring against losses through wrongdoing of its officers and employees who are involved in the servicing of credit card receivables. Section 3.2. Servicing Compensation. As compensation for its servicing ---------------------- activities hereunder and reimbursement for its expenses as set forth in the immediately following paragraph, the Servicer shall be entitled to receive a monthly servicing fee in respect of any Monthly Period (or portion thereof) prior to the termination of the Issuer pursuant to the Indenture (the "Monthly Servicing Fee"). 22 The share of the Monthly Servicing Fee allocable to each Series of Notes with respect to any Monthly Period (or portion thereof) shall be payable on the related Distribution Date and, with respect to each Series (unless provided in the related Indenture Supplement), shall be equal to the amount specified in the related Indenture Supplement (the "Investor Monthly Servicing Fee"). The share ------------------------------ of the Monthly Servicing Fee allocable to the Holder of the Seller Interest with respect to any Monthly Period (or portion thereof) shall be equal to one-twelfth of the product of (A) Seller Amount minus the sum of the Excess Funding Amount and the balance on deposit in the Principal Collections Subaccount, and (B) the weighted average of the Servicing Fee Rates with respect to each Series of Notes then outstanding (the "Monthly Seller Servicing Fee"). The Monthly Servicing Fee ---------------------------- shall equal the sum of (x) the aggregate amount of Investor Monthly Servicing Fees with respect to each Series then outstanding and (y) the Monthly Seller Servicing Fee. The Investor Monthly Servicing Fee with respect to any Series is payable in arrears on the related Distribution Date (unless otherwise provided in the related Indenture Supplement) and the Monthly Seller Servicing Fee is payable in arrears no later than the last Distribution Date with respect to any Series occurring in a Monthly Period. The Monthly Seller Servicing Fee and, unless otherwise provided in an Indenture Supplement, each Investor Monthly Servicing Fee, shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. The Servicer's expenses include the reasonable fees and disbursements of independent accountants and all other expenses incurred by the Servicer in connection with its activities hereunder; provided that the Servicer shall not -------- be liable for any liabilities, costs or expenses of the Issuer, the Noteholders or the Note Owners arising under any tax law, including any federal, state or local income or franchise taxes or any other tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith). The Servicer shall be required to pay such expenses for its own account and shall not be entitled to any payment therefor other than the Monthly Servicing Fee. Section 3.3. Representations; Warranties and Covenants of the Servicer. --------------------------------------------------------- FCNB, as initial Servicer, hereby makes, and any successor Servicer by its appointment hereunder shall make, the following representations and warranties and covenants on which the Owner Trustee has relied in accepting the Receivables in trust and in authenticating Notes: (a) Organization and Good Standing. The Servicer is duly organized, ------------------------------ validly existing and in good standing under the laws of its jurisdiction of organization, and has full corporate power, authority and right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted, and to execute, deliver and perform its obligations under this Agreement. 23 (b) Due Qualification. The Servicer is qualified as a foreign banking ----------------- association or other entity in any state where it is required to be so qualified to service the Receivables as required by this Agreement and has obtained all necessary licenses and approvals as required under federal and state law, in each case, where the failure to be so qualified, licensed or approved, could reasonably be expected materially and adversely to affect the ability of the Servicer to comply with the terms of this Agreement. (c) Due Authorization. The execution, delivery, and performance of this ----------------- Agreement have been duly authorized by the Servicer by all necessary corporate action on the part of the Servicer. (d) Binding Obligation. This Agreement constitutes the legal, valid and ------------------ binding obligations of the Servicer, enforceable in accordance with its terms, except as enforceability may be limited by Debtor Relief Laws and except as such enforceability may be limited by general principles of equity (whether considered in a proceeding at law or in equity). (e) No Violation. The execution and delivery of this Agreement by the ------------ Servicer, and the performance of the transactions contemplated by this Agreement and the fulfillment of the terms hereof applicable to the Servicer, will not conflict with, violate, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, any Requirements of Law applicable to the Servicer or any indenture, contract, agreement, mortgage, deed of trust or other instrument to which the Servicer is a party or by which it is bound. (f) No Proceedings. There are no proceedings or investigations pending -------------- or, to the best knowledge of the Servicer, threatened against the Servicer before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality seeking to prevent the consummation of any of the transactions contemplated by this Agreement, seeking any determination or ruling that, in the reasonable judgment of the Servicer, would materially and adversely affect the performance by the Servicer of its obligations under this Agreement, or seeking any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement. (g) Rescission and Cancellation. Other than pursuant to and in --------------------------- accordance with the Cardholder Guidelines, the Servicer shall not rescind or cancel any Receivable unless such rescission or cancellation shall have been ordered or directed by a Governmental Authority. (h) Other Actions. Other than pursuant to and in accordance with the ------------- Cardholder Guidelines and as otherwise specifically permitted by this Agreement, the Servicer shall not (i) take or fail to take any action if such action or failure to act 24 would impair the rights of the Issuer in any Receivable, or (ii) revise or defer any payment due in respect of any Receivable. (i) Compliance with Requirements of Law. The Servicer shall duly -------------------------------------- satisfy all obligations on its part to be fulfilled under or in connection with the Receivables or Accounts, will maintain in effect all qualifications required under Requirements of Law in order to properly service the Receivables and the Accounts and will comply in all material respects with all Requirements of Law in connection with servicing the Receivables and the Accounts the failure to comply with which would have a material adverse effect on the Noteholders. Section 3.4. Reports and Records for the Indenture Trustee; Bank --------------------------------------------------- Account Statements. - ------------------- (a) Daily Reports. On each Business Day, the Servicer shall prepare and ------------- make available at the office of the Servicer for inspection by the Indenture Trustee a record setting forth (i) the aggregate amount of Collections processed by the Servicer on the preceding Business Day and (ii) the aggregate amount of Receivables as of the close of business on the preceding Business Day. (b) Monthly Servicer's Certificate. Unless otherwise stated in the ------------------------------ related Indenture Supplement with respect to any Series, on each Determination Date, the Servicer shall forward to the Indenture Trustee, the Paying Agent, any Rating Agency and any Enhancement Provider a certificate of a Servicing Officer substantially in the form of Exhibit C. --------- Section 3.5. Annual Servicer's Certificate. Unless the Servicer has ----------------------------- been relieved of all of its obligations under this Agreement because the final Series has been repaid during the prior calendar year, the Servicer will deliver to the Indenture Trustee, any Enhancement Provider and any Rating Agency on or before April 30 of each calendar year, beginning with April 30, 2002, an Officer's Certificate substantially in the form of Exhibit D stating that (a) a --------- review of the activities of the Servicer during the preceding calendar year (or, with respect to the certificate to be delivered on April 30, 2002, since the Issuer's inception) and of its performance under this Agreement was made under the supervision of the officer signing such certificate and (b) to the best of such officer's knowledge, based on such review, the Servicer has fully performed all its obligations under this Agreement throughout such period, or, if there has been a default in the performance of any such obligation, specifying each such default known to such officer and the nature and status thereof. A copy of such certificate may be obtained by any Noteholder by a request in writing to the Indenture Trustee addressed to the Corporate Trust Office. Section 3.6. Annual Independent Public Accountants' Servicing Report. ------------------------------------------------------- 25 (a) Unless the Servicer has been relieved of all of its obligations under this Agreement because the final Series has been repaid during the prior calendar year, on or before April 30 of each calendar year after the year during which the FCMT Termination Date occurs, the Servicer shall cause KPMG LLP or another firm of nationally recognized independent public accountants (who may also render other services to the Servicer or Seller) to furnish a report covering the preceding annual period to the effect that such accountants have applied certain agreed-upon procedures to certain documents and records relating to the servicing of Accounts under this Agreement (and Pooling and Servicing Agreement, if applicable), compared the information contained in the Servicer's certificates (excluding Servicer's certificates for any Series that has been repaid during the prior calendar year) delivered during the period covered by such report (which shall be the period from January 1, to and including December 31 of such calendar year) with such documents and records in each case as specified in Exhibit E. In addition, each report shall set forth the agreed-upon --------- procedures performed. A copy of such report may be obtained by any Noteholder by a request in writing to the Indenture Trustee addressed to the Corporate Trust Office. In addition, the Servicer shall cause such accountants to furnish a copy of such report to each Rating Agency and to each Enhancement Provider. (b) On or before April 30 of each calendar year, beginning with April 30, 2002, the Servicer shall cause KPMG LLP or another firm of nationally recognized independent public accountants (who may also render other services to the Servicer or Seller) to furnish a report to the Indenture Trustee to the effect that they have compared the mathematical calculations of each amount set forth in the monthly certificates forwarded by the Servicer pursuant to Section ------- 3.4(b) during the period covered by such report (which shall be the period from - ------ January 1, to and including December 31 of such calendar year) with the Servicer's computer reports which were the source of such amounts and that on the basis of such comparison, such accountants are of the opinion that such amounts are in agreement, except for such exceptions as they believe to be immaterial and such other exceptions as shall be set forth in such statement. A copy of such report may be obtained by any Noteholder by a request in writing to the Owner Trustee addressed to the Corporate Trust Office. In addition, the Servicer shall cause such accountants to furnish a copy of such report to each Rating Agency and to each Enhancement Provider. Section 3.7. Tax Treatment. Seller has structured this Agreement and ------------- the Notes to facilitate a secured, credit-enhanced financing on favorable terms with the intention that the Notes will constitute indebtedness of Seller for federal income and state and local tax purposes; and Seller and each Noteholder by acceptance of its Note agrees to recognize and report the Notes as indebtedness of Seller for purposes of federal, state and local income or franchise taxes and any other tax imposed on or measured by income, and to report all receipts and payments relating thereto in a manner that is consistent with such characterization. 26 Section 3.8. Notices to Seller. In the event that FCNB is no longer ----------------- acting as Servicer, any Successor Servicer appointed pursuant to Section 7.2 ----------- shall deliver or make available to Seller each certificate and report required to be prepared, forwarded or delivered thereafter pursuant to Sections 3.4, 3.5 ------------ --- and 3.6. --- Section 3.9. Reports to the Commission. The Servicer shall, on behalf ------------------------- of the Issuer, cause to be filed with the Commission any periodic reports required to be filed under the provisions of the Securities Exchange Act of 1934, and the rules and regulations of the Commission thereunder. Seller shall, at its own expense, cooperate in any reasonable request of the Servicer in connection with such filings. The Issuer agrees to cooperate with the Servicer in connection with such filings. ARTICLE IV OTHER MATTERS RELATING TO SELLER Section 4.1. Liability of Seller. Seller shall be liable in accordance ------------------- herewith to the extent, and only to the extent, of the obligations specifically undertaken by Seller hereunder. Section 4.2. Merger or Consolidation of, or Assumption of the ------------------------------------------------ Obligations of, Seller etc. - -------------------------- (a) Seller shall not consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, unless: (i) the Person formed by such consolidation or into which Seller is merged or the Person which acquires by conveyance or transfer the properties and assets of Seller substantially as an entirety shall be, if Seller is not the surviving entity, organized and existing under the laws of the United States of America or any State or the District of Columbia and shall expressly assume, by an agreement supplemental hereto, executed and delivered to the Owner Trustee, in form satisfactory to the Owner Trustee, the performance of every covenant and obligation of Seller, as applicable hereunder, and shall benefit from all the rights granted to Seller, as applicable hereunder. To the extent that any right, covenant or obligation of Seller, as applicable hereunder, is inapplicable to the successor entity, such successor entity shall be subject to such covenant or obligation, or benefit from such right, as would apply, to the extent practicable, to such successor entity. In furtherance hereof, in applying this Section 4.2 ----------- to a successor entity, Section 6.1 hereof shall be applied by reference ----------- to events of involuntary liquidation, receivership or conservatorship applicable to such successor entity as such be set forth in the officer's certificate described in Section 4.2(a)(ii); ------------------ 27 (ii) Seller shall have delivered to the Indenture Trustee an Officer's Certificate of Seller and an Opinion of Counsel, each stating that such consolidation, merger, conveyance or transfer and such supplemental agreement comply with this Section 4.2 and that all conditions ----------- precedent herein provided for relating to such transaction have been complied with and, in the case of the Opinion of Counsel, that such supplemental agreement is legal, valid and binding with respect to Seller; and (iii) Seller shall have delivered notice of such consolidation, merger, conveyance or transfer to each Rating Agency, and the Rating Agency Condition shall have been satisfied; it being understood that a sale, transfer, assignment, participation, pledge or other disposition of the Seller Interest or the issuance of a Supplemental Certificate permitted by Section 3.4 of the Trust Agreement shall not be deemed to be a conveyance ----------- or transfer of the Seller's property substantially as an entirety for purposes of this Section 4.2. ----------- it being understood that a sale, transfer, assignment, participation, pledge or other disposition of the Seller Interest or the issuance of a Supplemental Certificate permitted by Section 3.4 of the Trust Agreement shall not be deemed to be a conveyance or transfer of the Seller's property substantially as an entirety for purposes of this Section 4.2. ----------- (b) The obligations of Seller hereunder shall not be assignable nor shall any Person succeed to the obligations of Seller hereunder except for mergers, consolidations, assumptions or transfers in accordance with the provisions of the foregoing paragraph. Section 4.3. Limitation on Liability of Seller. Neither Seller nor any of --------------------------------- the directors or officers or employees or agents of Seller shall be under any liability to the Issuer, the Owner Trustee, the Noteholders or any other Person for any action taken or for refraining from the taking of any action pursuant to this Agreement whether arising from express or implied duties under this Agreement; provided, however, that this provision shall not protect Seller or -------- ------- any such person against any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of its willful misconduct hereunder; and provided, further, -------- ------- that Seller shall be liable for any actual damages resulting directly from Seller's material failure to perform any of its obligations under this Agreement, but only if and to the extent that another remedy is not provided for and available hereunder. Seller and any director or officer or employee or agent of Seller may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person respecting any matters arising hereunder. Notwithstanding anything to the contrary in this Agreement or any other Transaction Document, any payment by the Seller pursuant to this Section ------- 4.3 shall only be made to the extent the Seller has funds available for such - --- purpose after 28 amounts payable to Securityholders (as defined in the Receivables Purchase Agreement) have been paid in full. Each party hereto agrees that the failure to make such payment shall not give rise to any claim against the Seller. ARTICLE V OTHER MATTERS RELATING TO THE SERVICER Section 5.1. Liability of the Servicer. The Servicer shall be liable ------------------------- in accordance herewith only to the extent of the obligations specifically undertaken by the Servicer in such capacity herein. Section 5.2. Merger or Consolidation of, or Assumption of the ------------------------------------------------ Obligations of, the Servicer. The Servicer shall not consolidate with or ---------------------------- merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, unless: (a) the Person formed by such consolidation or into which the Servicer is merged or the Person which acquires by conveyance or transfer the properties and assets of the Servicer substantially as an entirety shall be a corporation or a banking association organized and existing under the laws of the United States of America or any State or the District of Columbia and, if the Servicer is not the surviving entity, shall expressly assume, by an agreement supplemental hereto, executed and delivered to the Owner Trustee in form satisfactory to the Owner Trustee, the performance of every covenant and obligation of the Servicer hereunder; (b) the Servicer has delivered to the Indenture Trustee and each Enhancement Provider an Officer's Certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental agreement comply with this Section 5.2 ----------- and that all conditions precedent herein provided for relating to such transaction have been complied with; and (c) the Servicer shall have delivered notice of such consolidation, merger, conveyance or transfer to each of the Rating Agencies; it being understood that a sale, transfer, assignment, participation, pledge or other disposition of the Seller Interest or the issuance of a Supplemental Certificate permitted by Section 3.4 of the Trust Agreement shall not be deemed to be a conveyance or transfer of the Servicer's property substantially as an entirety for purposes of this Section 5.2. ----------- Section 5.3. Limitation on Liability of the Servicer and Others. -------------------------------------------------- Except as provided in Section 5.4 with respect to the Issuer and the Owner ----------- Trustee and Section 29 6.7 of the Indenture with respect to the Indenture Trustee, neither the Servicer nor any of the directors or officers or employees or agents of the Servicer shall be under any liability to the Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders or any other Person for any action taken or for refraining from the taking of any action in its capacity as Servicer pursuant to this Agreement; provided, however, that this provision shall not protect the Servicer or any such Person against any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of its willful misconduct hereunder. The Servicer and any director or officer or employee or agent of the Servicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person respecting any matters arising hereunder. The Servicer shall not be under any obligation to appear in, prosecute or defend any legal action which does not arise out of its activities in servicing the Receivables in accordance with this Agreement which in its reasonable opinion may involve it in any expense or liability. Section 5.4. Indemnification of the Issuer and the Owner Trustee. The --------------------------------------------------- Servicer shall indemnify, defend and hold harmless the Issuer and the Owner Trustee and its officers, directors, employees and agents from and against any loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of activities of the Issuer or the Owner Trustee pursuant to the Transaction Documents, including those arising from acts or omissions of the Servicer pursuant to this Agreement, including, but not limited to any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim; provided, however, that the Servicer shall not -------- ------- indemnify the Issuer or the Owner Trustee if such acts, omissions or alleged acts or omissions constitute fraud, gross negligence or breach of fiduciary duty by the Owner Trustee; provided further, that the Servicer -------- ------- shall not indemnify the Issuer, any Noteholders or any Note Owners for any liabilities, costs or expenses of the Issuer with respect to any action taken by the Indenture Trustee at the request of such Noteholders; provided -------- further, that the Servicer shall not indemnify the Issuer, any Noteholders ------- or any Note Owners as to any losses, claims or damages incurred by any of them in their capacities as investors, including losses incurred as a result of defaulted Receivables or Receivables which are written off as uncollectible; and provided further, that the Servicer shall not indemnify -------- ------- the Issuer, or any Noteholders for any liabilities, costs or expenses of the Issuer, or such Noteholders arising under any tax law, including any federal, state or local income or franchise taxes or any other tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Issuer, or such Noteholders in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. Any indemnification pursuant to this Section shall not be payable from the assets of the Issuer. 30 The obligations of the Servicer under this Section 5.4 shall survive ----------- the termination of the Issuer and the resignation or removal of the Owner Trustee. The Servicer shall indemnify the Indenture Trustee as provided in Section 6.7 of the Master Indenture. Section 5.5. The Servicer Not to Resign. The Servicer shall not -------------------------- resign from the obligations and duties hereby imposed on it except upon determination that (i) the performance of its duties hereunder is or becomes impermissible under applicable law and (ii) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any such determination permitting the resignation of the Servicer shall be evidenced as to clause (i) by an Opinion of Counsel to such effect delivered to the Indenture Trustee. No such resignation shall become effective until the Indenture Trustee or a Successor Servicer shall have assumed the responsibilities and obligations of the Servicer in accordance with Section 7.2. If the Indenture Trustee is unable within 120 days of the date of such determination to appoint a Successor Servicer, the Indenture Trustee shall serve as Successor Servicer hereunder. Notice of any resignation by the Servicer shall be given to each Rating Agency by the resigning Servicer. Section 5.6. Access to Certain Documentation and Information ----------------------------------------------- Regarding the Receivables. The Servicer shall provide to the Indenture ------------------------- Trustee access to the documentation regarding the Accounts and the Receivables in such cases where the Indenture Trustee is required in connection with the enforcement of the rights of the Noteholders, or by applicable statutes or regulations to review such documentation, such access being afforded without charge but only (i) upon reasonable request, (ii) during normal business hours, (iii) subject to the Servicer's normal security and confidentiality procedures and (iv) at offices designated by the Servicer. Nothing in this Section 5.6 shall derogate from the ----------- obligation of Seller, the Indenture Trustee or the Servicer to observe any applicable law prohibiting disclosure of information regarding the Obligors and the failure of the Servicer to provide access as provided in this Section 5.6 as a result of such obligation shall not constitute a breach of ----------- this Section 5.6. ----------- Section 5.7. Delegation of Duties. It is understood and agreed by the -------------------- parties hereto that the Servicer may delegate certain of its duties hereunder to First Data Resources Inc., a Delaware corporation. In addition, in the ordinary course of business, the Servicer may at any time delegate any duties hereunder to any other Person who agrees to conduct such duties in accordance with the Cardholder Guidelines. Any such delegations shall not relieve the Servicer of its liability and responsibility with respect to such duties, and shall not constitute a resignation within the meaning of Section 5.5. The Servicer shall notify ----------- each Rating Agency of any material delegation of its duties not consistent with its normal practices as of the date hereof. 31 Section 5.8. Examination of Records. The Servicer shall clearly and ---------------------- unambiguously identify each Account (including any Additional Account designated pursuant to Section 2.6) in its computer or other records to reflect that the Receivables arising in such Account have been transferred by Seller to the Issuer pursuant to this Agreement. The Servicer shall, prior to the sale or transfer to a third party of any receivable held in its custody, examine its computer and other records to determine that such receivable is not a Receivable. ARTICLE VI INSOLVENCY EVENTS Section 6.1. Rights upon the Occurrence of an Insolvency Event. If ------------------------------------------------- Seller shall consent or fail to object to the appointment of a bankruptcy trustee or conservator, receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to Seller of or relating to all or substantially all of Seller's property, or the commencement of an action seeking a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or conservator, receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up, insolvency, bankruptcy, reorganization, conservatorship, receivership or liquidation of such entity's affairs, or notwithstanding an objection by Seller any such action shall have remained undischarged or unstayed for a period of sixty (60) days or upon entry of any order or decree providing for such relief; or Seller shall admit in writing its inability to pay its debts generally as they become due, file, or consent or fail to object (or object without dismissal of any such filing within sixty (60) days of such filing) to the filing of, a petition to take advantage of any Debtor Relief Law, make an assignment for the benefit of its creditors (any such act or occurrence with respect to any Person being an "Insolvency Event"), Seller shall on the day any such Insolvency Event occurs immediately cease to transfer Principal Receivables to the Issuer and shall promptly give notice to the Indenture Trustee, the Owner Trustee and the Rating Agencies thereof. ARTICLE VII SERVICER DEFAULTS Section 7.1. Servicer Defaults. If any one of the following events (a ----------------- "Servicer Default") shall occur and be continuing after the FCMT ---------------- Termination Date: (a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Indenture Trustee to make such payment, transfer or deposit or to make any required drawing, withdrawal, or payment under any Enhancement required to be made by the Servicer on or 32 before the date occurring five Business Days after the date such payment, transfer, deposit, withdrawal or drawing, or such instruction or notice is required to be made or given by the Servicer, as the case may be, under the terms of this Agreement, the Indenture or any Indenture Supplement; or (b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has a material adverse effect on the Noteholders, which continues unremedied for a period of 60 days after the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Noteholders holding not less than 10% of the outstanding principal amount of any Series adversely affected thereby and continues to materially adversely affect such Noteholders for such period; or the Servicer's delegation of its duties under this Agreement except as permitted by Section 5.7; or ----------- (c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Noteholders and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by the Noteholders holding not less than 10% of the outstanding principal amount of any Series adversely affected thereby and continues to materially adversely affect such Noteholders for such period, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of the Servicer, if the Servicer shall fail to proceed promptly to cure the same and prosecute the curing of such failure with diligence and continuity; (d) the Servicer shall (i) become insolvent, (ii) fail to pay its debts generally as they become due, (iii) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (iv) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 60 days after its filing; or (e) with respect to any Series, any other event specified in the Indenture Supplement for such Series, then, so long as such Servicer Default shall not have been remedied, either the Indenture Trustee, or the Noteholders holding more than 50% of the Outstanding 33 Amount, by notice then given in writing to the Servicer (and to the Indenture Trustee if given by the Noteholders) (a "Termination Notice"), ------------------ may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as holder of the Seller Interest or any Notes). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Indenture Trustee pursuant to Section 7.2, all authority and power ----------- of the Servicer under this Agreement shall pass to and be vested in a Successor Servicer; and the Indenture Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Indenture Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in any Collection Account or Series Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 7.1 ----------- shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, in respect of any Enhancement to the Successor Servicer. Section 7.2. Indenture Trustee to Act; Appointment of Successor. (a) -------------------------------------------------- On and after the receipt by the Servicer of a Termination Notice pursuant to Section 7.1, the Servicer shall continue to perform all servicing ----------- functions under this Agreement until the date specified in the Termination Notice or otherwise specified by the Indenture Trustee in writing or, if no such date is specified in such Termination Notice or otherwise specified by the Indenture Trustee, until a date mutually agreed upon by the Servicer and the Indenture Trustee. The Indenture Trustee shall as promptly as possible after the giving of a Termination Notice appoint (with the consent of the Noteholders holding greater than 50% of the outstanding principal amount of each Series, and with prior written notice to the Rating Agencies) a successor servicer (the 34 "Successor Servicer"), and such Successor Servicer shall accept its ------------------ appointment by a written assumption in a form acceptable to the Indenture Trustee. The Indenture Trustee may obtain bids from any potential successor servicer. If the Indenture Trustee is unable to obtain any bids from any potential successor servicer and the Servicer delivers an Officer's Certificate to the effect that it cannot in good faith cure the Servicer Default which gave rise to a transfer of servicing, then the Owner Trustee shall offer Seller the right to accept retransfer of all the Receivables and Seller may accept retransfer of all the Receivables, provided, however, -------- ------- that if the long-term unsecured debt obligations of Seller are not rated at the time of such purchase at least Baa3 by Moody's and BBB- by Standard & Poor's, no such retransfer shall occur unless Seller shall deliver an Opinion of Counsel reasonably acceptable to the Indenture Trustee that such retransfer would not constitute a fraudulent conveyance of Seller. The retransfer deposit amount for such a retransfer shall be equal to the higher of the sum of (i) the outstanding principal balance of the Notes, plus accrued interest thereon, at the Note Rate, through the date of retransfer and (ii) the average bid price quoted by two recognized dealers for a similar security rated in the highest rating category by Moody's and Standard & Poor's and having a remaining maturity substantially similar to the remaining maturity of the Notes. In the event that a Successor Servicer has not been appointed and has not accepted its appointment at the time when the Servicer ceases to act as Servicer, the Indenture Trustee without further action shall automatically be appointed the Successor Servicer. Notwithstanding the above, the Indenture Trustee shall, if it is legally unable so to act, petition a court of competent jurisdiction to appoint any established financial institution having a net worth of not less than $50,000,000 and whose regular business includes the servicing of installment sales charge, credit and/or credit card account receivables as the Successor Servicer hereunder. Notwithstanding anything else herein to the contrary, in no event shall the Indenture Trustee be liable for any servicing fee. (b) Upon its appointment, the Successor Servicer shall be the successor in all respects to the Servicer with respect to servicing functions under this Agreement and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof, and all references in this Agreement to the Servicer shall be deemed to refer to the Successor Servicer. Any Successor Servicer, by its acceptance of its appointment, will automatically agree to be bound by the terms and provisions of any Enhancement to the extent that such terms apply to the Servicer. Any sub-servicing agreement shall be assigned to the Successor Servicer. (c) In connection with such appointment and assumption, the Indenture Trustee shall be entitled to such compensation, or may make such arrangements for the compensation of the Successor Servicer out of Collections, as it and such Successor Servicer shall agree; provided, -------- however, that no such compensation shall be in excess of the Monthly ------- Servicing Fees permitted to the Servicer pursuant to Section 3.2. The ----------- Holder of the Seller Interest agrees that if the Servicer is terminated hereunder, it will agree, at the request of the Indenture Trustee or any Successor 35 Servicer, to deposit a portion of the Collections in respect of Finance Charge Receivables that it is entitled to receive pursuant to the Indenture, to pay its share of the compensation of the Successor Servicer. The Successor Servicer shall have no liability for any actions or failure to act on the part of the Servicer. (d) All authority and power granted to the Successor Servicer under this Agreement shall automatically cease and terminate upon termination of the Issuer pursuant to the Trust Agreement and shall pass to and be vested in Seller and, Seller is hereby authorized and empowered to execute and deliver, on behalf of the Successor Servicer, as attorney-in-fact or otherwise, all documents and other instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Successor Servicer agrees to cooperate with Seller in effecting the termination of the responsibilities and rights of the Successor Servicer to conduct servicing on the Receivables. The Successor Servicer shall transfer its electronic records relating to the Receivables to Seller in such electronic form as Seller may reasonably request and shall transfer all other records, correspondence and documents to Seller in the manner and at such times as Seller shall reasonably request. To the extent that compliance with this Section 7.2 ----------- shall require the Successor Servicer to disclose to Seller information of any kind which the Successor Servicer deems to be confidential, Seller shall be required to enter into such customary licensing and confidentiality agreements as the Successor Servicer shall deem necessary to protect its interests. Section 7.3. Notification to Noteholders. Upon the occurrence of any --------------------------- Servicer Default, the Servicer shall give prompt written notice thereof to a Trustee Officer of the Indenture Trustee and the Indenture Trustee shall give notice to the Noteholders at their respective addresses appearing in the Note Register. Upon any termination or appointment of a Successor Servicer pursuant to this Article VII, the Indenture Trustee shall give prompt written notice ----------- thereof to Noteholders at their respective addresses appearing in the Note Register. A copy of any notice given pursuant to this Section 7.3 shall be ----------- delivered to each Rating Agency. ARTICLE VIII TERMINATION Section 8.1. Termination of Agreement. This Agreement and the respective ------------------------ obligations and responsibilities of the Issuer, Seller and the Servicer under this Agreement shall terminate, except with respect to the duties described in Section 5.4, on the Trust Termination Date. - ----------- 36 ARTICLE IX MISCELLANEOUS PROVISIONS Section 9.1. Amendment; Waiver of Past Defaults. ---------------------------------- (a) This Agreement may be amended from time to time by the Servicer, Seller and the Issuer, without the consent of any of the Indenture Trustee or any Noteholder to cure any ambiguity, to correct or supplement any provisions herein which may be inconsistent with any other provisions herein or to add any other provisions with respect to matters or questions raised under this Agreement which shall not be inconsistent with the provisions of this Agreement; provided, however, that such action shall not adversely affect in any material - -------- ------- respect the interests of any of the Noteholders. Additionally, this Agreement may be amended from time to time by the Servicer, the Seller and the Issuer by a written instrument signed by each of them, without the consent of the Indenture Trustee or any of the Noteholders; provided that (i) Seller shall have delivered -------- to the Indenture Trustee and the Owner Trustee an Officer's Certificate, dated the date of any such Amendment, stating that Seller reasonably believes that such amendment will not have an Adverse Effect and (ii) the Rating Agency Condition shall have been satisfied with respect to any such amendment. Additionally, notwithstanding the preceding sentence, this Agreement will be amended by the Servicer and the Issuer at the direction of Seller without the consent of the Indenture Trustee or any of the Noteholders or Series Enhancers to add, modify or eliminate such provisions as may be necessary or advisable in order to enable all or a portion of the Issuer (1) to qualify as, and to permit an election to be made to cause the Issuer to be treated as, a "financial asset securitization investment trust" as described in the provisions of Section 860L of the Code, and (2) to avoid the imposition of state or local income or franchise taxes imposed on the Issuer's property or its income; provided, -------- however, that (A) Seller delivers to the Indenture Trustee and the Owner Trustee - ------- an Officer's Certificate to the effect that the proposed amendments meet the requirements set forth in this Section, (B) the Rating Agency Condition has been satisfied, and (C) such amendment does not affect the rights, duties or obligations of the Indenture Trustee or the Owner Trustee hereunder. The amendments which Seller may make without the consent of Noteholders or Series Enhancers pursuant to the preceding sentence may include the addition of a Seller. (b) This Agreement may also be amended from time to time by the Servicer, Seller and the Issuer, with the consent of the Noteholders holding more than 66 2/3% of the Outstanding principal amount of the Notes of each Series affected thereby for which Seller has not delivered an Officer's Certificate stating that there is no Adverse Effect, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders; provided, however, -------- ------- that no such amendment shall (i) reduce in any manner the amount of or delay the timing of any distributions (changes in Pay Out Events or Events of Default that decrease the likelihood of the 37 occurrence thereof shall not be considered delays in the timing of distributions for purposes of this clause) to be made to Noteholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Noteholder, (ii) change the definition of or the manner of calculating the interest of any Noteholder without the consent of each affected Noteholder or (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Noteholder or (iv) adversely affect the rating of any Series or Class by any Rating Agency without the consent of the Noteholders of such Series or Class holding more than 66 2/3% of the Outstanding principal amount of the Notes of such Series or Class affected thereby. (c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a)), the Issuer shall furnish notification of the substance of such amendment to the Indenture Trustee and each Noteholder, and the Servicer shall furnish notification of the substance of such amendment to each Rating Agency and each Series Enhancer. (d) It shall not be necessary for the consent of Noteholders under this Section 9.1 to approve the particular form of any proposed amendment, but it - ----------- shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Noteholders shall be subject to such reasonable requirements as the Indenture Trustee may prescribe. (e) Notwithstanding anything in this Section 9.1 to the contrary, no ----------- amendment may be made to this Agreement which would adversely affect in any material respect the interests of any Series Enhancer without the consent of such Series Enhancer. (f) Any Indenture Supplement executed in accordance with the provisions of Article X of the Indenture shall not be considered an amendment of this --------- Agreement for the purposes of this Section 9.1. ----------- (g) The Noteholders holding 66 2/3% or more of the Outstanding principal amount of the Notes of each Series or, with respect to any Series with two (2) or more Classes, of each Class (or, with respect to any default that does not relate to all Series, 66 2/3% or more of the principal amount of the Outstanding Notes of each Series to which such default relates or, with respect to any such Series with two or more Classes, of each Class) may, on behalf of all Noteholders, waive any default by Seller or the Servicer in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Noteholders or to make any required deposits of any amounts to be so distributed. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such 38 waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. (h) The Owner Trustee may, but shall not be obligated to, enter into any such amendment which affects the Owner Trustee's rights, duties or immunities under this Agreement or otherwise. In connection with the execution of any amendment hereunder, the Owner Trustee shall be entitled to receive the Opinion of Counsel described in Section 9.2(d). -------------- Section 9.2. Protection of Right, Title and Interest to Issuer. ------------------------------------------------- (a) Seller shall cause this Agreement, all amendments and supplements hereto and all financing statements and continuation statements and any other necessary documents covering the Indenture Trustee's and the Issuer's right, title and interest to the Issuer to be promptly recorded, registered and filed, and at all times to be kept recorded, registered and filed, all in such manner and in such places as may be required by law fully to preserve and protect the right, title and interest of the Indenture Trustee, Noteholders and the Issuer hereunder to all property comprising the Issuer. Seller shall deliver to the Indenture Trustee file-stamped copies of, or filing receipts for, any document recorded, registered or filed as provided above, as soon as available following such recording, registration or filing. Seller shall cooperate fully with the Servicer in connection with the obligations set forth above and will execute any and all documents reasonably required to fulfill the intent of this paragraph. (b) Within thirty (30) days after the Seller makes any change in its name, identity or corporate structure which would make any financing statement or continuation statement filed in accordance with paragraph (a) seriously misleading within the meaning of Section 9-506 (or any comparable provision) of the applicable UCC, the Seller shall give the Indenture Trustee notice of any such change and shall file such financing statements or amendments as may be necessary to continue the perfection of the Issuer's security interest or ownership interest in the Receivables and the proceeds thereof. (c) Each of the Seller and the Servicer shall give the Indenture Trustee prompt notice of any relocation of its chief principal executive office or any change in the jurisdiction under whose laws it is organized and whether, as a result of such relocation or change, the applicable provisions of the applicable UCC would require the filing of any amendment of any previously filed financing or continuation statement or of any new financing statement and shall file such financing statements or amendments as may be necessary to perfect or to continue the perfection of the Issuer's security interest in the Receivables and the proceeds thereof. Each of Seller and Servicer shall at all times maintain its chief principal executive offices within the United States and shall at all times be organized under the laws of a jurisdiction located within the United States. 39 (d) Seller shall deliver to the Indenture Trustee (i) upon the execution and delivery of each amendment of this Agreement, an Opinion of Counsel to the effect specified in Exhibit F-1; (ii) on each date specified in Section ----------- ------- 2.6(c)(vii) with respect to Additional Accounts added pursuant to Section 2.6(a) - ----------- -------------- or (b), an Opinion of Counsel substantially in the form of Exhibit F-2; and --- ----------- (iii) on or before April 30 of each year following the year in which the FCMT Termination Date occurs, an Opinion of Counsel substantially in the form of Exhibit F-3. - ----------- Section 9.3. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE ------------- WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. Section 9.4. Notices; Payments. ----------------- (a) All demands, notices, instructions, directions and communications (collectively, "Notices") under this Agreement shall be in writing and shall be ------- deemed to have been duly given if personally delivered at, mailed by registered mail, return receipt requested, or sent by facsimile transmission (i) in the case of Seller, to First Consumers Credit Corporation, 400 West 9th Street, Suite 302D, Wilmington, Delaware, 19801, Attn.: Treasurer, with a copy to Spiegel, Inc., 3500 Lacey Road, Downers Grove, Illinois, 60515-5452, Attn.: Treasurer, (ii) and the Servicer, to First Consumers National Bank, 9300 S.W. Gemini Drive, Beaverton, Oregon 97008, Attn: President, (iii) in the case of the Issuer or the Owner Trustee, to the Corporate Trust Office, Attn: Corporate Trust & Agency Services, with a copy to the Administrator, (iv) in the case of the Rating Agency for a particular Series, the address, if any, specified in the Indenture Supplement relating to such Series, and (v) to any other Person as specified in the Indenture or any Indenture Supplement; or, as to each party, at such other address or facsimile number as shall be designated by such party in a written notice to each other party. (b) Any Notice required or permitted to be given to a Holder of Registered Notes shall be given by first-class mail, postage prepaid, at the address of such Holder as shown in the Note Register. Any Notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not the Noteholder receives such Notice. In addition, in the case of any Series or Class with respect to which any Notes are outstanding, any Notice required or permitted to be given to Noteholders of such Series or Class shall be published in an Authorized Newspaper within the time period prescribed in this Agreement. Section 9.5. Severability of Provisions. If any one or more of the -------------------------- covenants, agreements, provisions or terms of this Agreement shall for any reason whatsoever be held invalid, then such provisions shall be deemed severable from the remaining 40 provisions of this Agreement and shall in no way affect the validity or enforceability of the remaining provisions or of the Notes or the rights of the Noteholders. Section 9.6. Further Assurances. Seller and the Servicer agree to do and ------------------ perform, from time to time, any and all acts and to execute any and all further instruments required or reasonably requested by the Owner Trustee and the Indenture Trustee more fully to effect the purposes of this Agreement, including the execution of any financing statements or continuation statements relating to the Receivables for filing under the provisions of the UCC of any applicable jurisdiction. Section 9.7. No Waiver; Cumulative Remedies. No failure to exercise and ------------------------------ no delay in exercising, on the part of the Owner Trustee, the Indenture Trustee or the Noteholders, any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided under this Agreement are cumulative and not exhaustive of any rights, remedies, powers and privileges provided by law. Section 9.8. Counterparts. This Agreement may be executed in two or more ------------ counterparts (and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one and the same instrument. Section 9.9. Third-Party Beneficiaries. This Agreement will inure to the ------------------------- benefit of and be binding upon the parties hereto, the Indenture Trustee, the Noteholders, and any Series Enhancer. Except as otherwise expressly provided in this Agreement, no other Person will have any right or obligation hereunder. Section 9.10. Actions by Noteholders. ---------------------- (a) Wherever in this Agreement a provision is made that an action may be taken or a Notice given by Noteholders, such action or Notice may be taken or given by any Noteholder, unless such provision requires a specific percentage of Noteholders. (b) Any Notice, request, authorization, direction, consent, waiver or other act by the Noteholder shall bind such Holder and every subsequent Holder of such Note and of any Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or omitted to be done by the Owner Trustee, Seller or the Servicer in reliance thereon, whether or not notation of such action is made upon such Note. Section 9.11. Rule 144A Information. For so long as any of the Notes of --------------------- any Series or Class are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, each of Seller, the Owner Trustee, the Indenture Trustee, the 41 Servicer and any Series Enhancer agree to cooperate with each other to provide to any Noteholders of such Series or Class and to any prospective purchaser of Notes designated by such Noteholder, upon the request of such Noteholder or prospective purchaser, any information required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act. Section 9.12. Merger and Integration. Except as specifically stated ---------------------- otherwise herein, this Agreement sets forth the entire understanding of the parties relating to the subject matter hereof, and all prior understandings, written or oral, are superseded by this Agreement. This Agreement may not be modified, amended, waived or supplemented except as provided herein. Section 9.13. No Bankruptcy Petition. (a) Each of Seller and Servicer, ---------------------- severally and not jointly, hereby covenants and agrees that, prior to the date which is one (1) year and one (1) day after the payment in full of all Notes, it will not institute against, or join any other Person in instituting against, the Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States. (b) Each of Servicer and Issuer, severally and not jointly, hereby covenants and agrees that, prior to the date which is one (1) year and one (1) day after the payment in full of all Notes, it will not institute against, or join any other Person in instituting against, the Seller 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. Section 9.14. Rights of Indenture Trustee. The Indenture Trustee shall --------------------------- have herein the same rights, protections, indemnities and immunities as specified in the Indenture. Section 9.15. Rights of the Owner Trustee. Each of the parties hereto --------------------------- acknowledges and agrees that this Agreement is being executed and delivered by Bankers Trust Company not individually but solely and exclusively in its capacity as Owner Trustee on behalf of First Consumers Credit Card Master Note Trust for the purpose and with the intention of binding First Consumers Credit Card Master Note Trust. No obligations or liabilities hereunder shall run against Bankers Trust Company in its individual capacity or against its properties or assets. Section 9.16. Limited Recourse. Notwithstanding anything to the contrary ---------------- in this Agreement or any other Transaction Document, with respect to provisions hereof in which the Seller has agreed that certain actions will be taken at the Seller's expense, payment of any such expense shall only be made to the extent the Seller has funds available for such purpose after amounts payable to Securityholders (as defined in the Receivables Purchase Agreement) have been paid in full. Each party hereto agrees 42 that the failure to make such payments beyond the extent available shall not give rise to any claim against the Seller. 43 IN WITNESS WHEREOF, Seller, the Servicer and the Issuer have caused this Transfer and Servicing Agreement to be duly executed by their respective officers as of the day and year first above written. FIRST CONSUMERS CREDIT CORPORATION, as Seller By: /s/ John R. Steele ------------------ Name: John R. Steele Title: Treasurer FIRST CONSUMERS NATIONAL BANK, as Servicer By: /s/ John R. Steele ------------------ Name: John R. Steele Title: Treasurer FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST, Issuer By: BANKERS TRUST COMPANY, not in its individual capacity but solely as Owner Trustee on behalf of the Issuer By: /s/ Eileen M. Hughes -------------------- Name: Eileen M. Hughes Title: Vice President Acknowledged and Accepted: THE BANK OF NEW YORK, not in its individual capacity but solely as Indenture Trustee By: /s/ Greg Anderson ----------------- Name: Greg Anderson Title: Authorized Agent First Consumers Credit Card Master Note Trust Transfer and Servicing Agreement Signature Page EXHIBIT A to TRANSFER AND SERVICING AGREEMENT FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS (As required by Section 2.6 of the Transfer and Servicing Agreement) ----------- ASSIGNMENT No. __ OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of _____________, by and among FIRST CONSUMERS CREDIT CORPORATION, a Delaware corporation, as Seller (the "Seller") FIRST CONSUMERS NATIONAL BANK, a national ------ banking association, as Servicer (the "Servicer") and FIRST CONSUMERS CREDIT -------- CARD MASTER NOTE TRUST (the "Issuer"), pursuant to the Transfer and Servicing ------ Agreement referred to below. WITNESSETH WHEREAS, the Seller, the Servicer and the Issuer are parties to the Transfer and Servicing Agreement, dated as of March 1, 2001, and amended and restated as of December 31, 2001 (the "Agreement"); --------- WHEREAS, pursuant to the Agreement, the Seller wishes to designate Additional Accounts to be included as Accounts and to convey the Receivables of such Additional Accounts (as each such term is defined in the Agreement), whether now existing or hereafter created, to the Issuer; and WHEREAS, the Issuer is willing to accept such designation and conveyance subject to the terms and conditions hereof; NOW, THEREFORE, the Seller, the Servicer and the Issuer hereby agree as follows: 1. Defined Terms. All capitalized terms used herein shall have the meanings ------------- ascribed to them in the Agreement unless otherwise defined herein. "Addition Date" means, with respect to the Additional Accounts designated ------------- hereby, ____________, 200__. "Notice Date" means, with respect to the Additional Accounts designated hereby, ----------- ____________, ____, (which shall be a date on or prior to the fifth Business Day prior to the Addition Date). 2. Designation of Additional Accounts. On or before the date hereof, the ---------------------------------- Seller will deliver to the Owner Trustee a computer file or microfiche list containing a true and complete schedule identifying all such Additional Accounts (the "Additional ---------- Exhibit A-1 Accounts") specifying for each such Additional Account, as of the Notice Date, - -------- its account number, the aggregate amount outstanding in such Account and the aggregate amount of Principal Receivables outstanding in such Account, which computer file or microfiche list shall supplement Schedule 1 to the Agreement. ---------- 3. Conveyance of Receivables. (a) The Seller does hereby transfer, assign, set ------------------------- over and otherwise convey, without recourse except as set forth in the Transfer and Servicing Agreement, to the Issuer, all its right, title and interest in, to and under the Receivables of such Additional Accounts existing at the close of business on the Notice Date and thereafter created from time to time until the termination of the Issuer, all Recoveries related thereto, all monies due or to become due and all amounts received or receivable with respect thereto and all proceeds thereof. The foregoing does not constitute and is not intended to result in the creation or assumption by the Issuer, the Owner Trustee, the Indenture Trustee, any Noteholders or any Series Enhancer of any obligation of the Servicer, the Seller or any other Person in connection with the Accounts, the Receivables or under any agreement or instrument relating thereto, including any obligation to Obligors, merchant banks, merchants or clearance systems. (b) The Seller agrees to record and file, at its own expense, financing statements (and continuation statements when applicable) with respect to the Receivables in Additional Accounts existing on the Notice Date and thereafter created meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect, and maintain perfection of, the sale and assignment of its interest in such Receivables to the Issuer, and to deliver a file-stamped copy of each such financing statement or other evidence of such filing to the Owner Trustee on or prior to the Addition Date. The Owner Trustee shall be under no obligation whatsoever to file such financing or continuation statements or to make any other filing under the applicable UCC in connection with such sale and assignment. (c) In connection with such sale, the Seller further agrees, at its own expense, on or prior to the date of this Assignment, to indicate in the appropriate computer files that Receivables created in connection with the Additional Accounts and designated hereby have been conveyed to the Issuer pursuant to the Agreement and this Assignment. (d) The Seller does hereby grant to the Issuer a security interest in all of its right, title and interest, whether now owned or hereafter acquired, in and to the Receivables in the Additional Accounts existing on the Notice Date and thereafter created, all Recoveries related thereto, all monies due or to become due and all amounts received or receivable with respect thereto, all money, accounts, general intangibles, chattel paper, instruments, documents, goods, investment property, deposit accounts, certificates of deposit, letters of credit, and advices of credit consisting of, arising from or related to the foregoing, and all proceeds thereof. This Assignment constitutes a security agreement under the applicable UCC. Exhibit A-2 4. Acceptance by Issuer. The Issuer hereby acknowledges its acceptance of all -------------------- right, title and interest to the property, existing on the Notice Date and thereafter created, conveyed to the Issuer pursuant to Section 3(a) of this ------------ Assignment. The Issuer further acknowledges that, prior to or simultaneously with the execution and delivery of this Assignment, the Seller delivered to the Owner Trustee the computer file or microfiche list described in Section 2 of --------- this Assignment. 5. Representations and Warranties of the Seller. The Seller hereby represents -------------------------------------------- and warrants to the Issuer as of the Addition Date: (a) Legal Valid and Binding Obligation. This Assignment constitutes a ---------------------------------- legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, receivership or conservatorship, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting the enforcement of creditors' rights in general and the rights of creditors of national banking associations and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity); (b) Schedule 1. Schedule 1 to this Assignment and the computer file or ---------- microfiche list delivered pursuant to Section 2 of this Assignment is an --------- accurate and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date; (c) Eligibility of Accounts. Each Additional Account designated hereby is ----------------------- an Eligible Account; (d) Selection Procedures. No selection procedures believed by the Seller to --------------------- be materially adverse to the interests of the Noteholders were utilized in selecting the Additional Accounts designated hereby; (e) Insolvency. The Seller is not insolvent and, after giving effect to the ---------- conveyance set forth in Section 3 of this Assignment, will not be insolvent; --------- (f) Security Interest. This Assignment constitutes (i) a valid transfer and ----------------- assignment to the Issuer of all right, title and interest of the Seller in and to Receivables now existing and hereafter created in the Additional Accounts designated hereby, and all proceeds (as defined in the UCC as in effect in the applicable jurisdiction) of such Receivables and Insurance Proceeds relating thereto, and such Receivables and any Collections, Recoveries and other proceeds thereof and Insurance Proceeds relating thereto will be held by the Issuer free and clear of any Lien of any Person except for (x) Liens permitted under Section ------- 2.5(b) of the Transfer and Servicing Agreement and (y) the interest of the - ------ Seller as holder of the Exhibit A-3 Collateral Certificate and/or (ii) it constitutes a grant of a security interest (as defined in the UCC as in effect in the applicable jurisdiction) in such property to the Issuer, which is enforceable with respect to the existing Receivables in the Additional Accounts designated hereby, the Collections, Recoveries and other proceeds (as defined in the UCC as in effect in the applicable jurisdiction) thereof and Insurance Proceeds relating thereto upon the conveyance of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter created in respect of the Additional Accounts designated hereby, the Collections, Recoveries and other proceeds (as defined in the UCC as in effect in the applicable jurisdiction) thereof and Insurance Proceeds relating thereto, upon such creation; and (iii) if this Assignment constitutes the grant of a security interest to the Issuer in such property, upon the filing of a financing statement described in Section 3 of --------- this Assignment with respect to the Additional Accounts designated hereby and in the case of the Receivables of such Additional Accounts thereafter created and the Collections, Recoveries and other proceeds (as defined in the UCC as in effect in the applicable jurisdiction) thereof, and Insurance Proceeds relating to such Receivables, upon such creation, the Issuer shall have a first priority perfected security interest in such property, except for Liens permitted under Section 2.5(b) of the Transfer and Servicing Agreement, the interest of the - -------------- Seller as holder of the Collateral Certificate and the Seller's right to receive interest accruing on, and investment earnings in respect of, the Collection Subaccount and any Series Account as provided in the Transfer and Servicing Agreement. (g) Notice has been given to each Rating Agency and to each Enhancement Provider as required under Section 2.7(d) of the Transfer and Servicing -------------- Agreement. 6. Conditions Precedent. The acceptance of the Owner Trustee set forth in -------------------- Section 4 above and the amendment of the Transfer and Servicing Agreement set - --------- forth in Section 7 below are subject to the satisfaction, on or prior to the --------- Addition Date, of the following conditions precedent: (a) Officer's Certificate. The Seller shall have delivered to the Owner --------------------- Trustee a certificate of a Vice President or more senior officer, certifying that (i) all requirements set forth in Section 2.6 of the Transfer and Servicing ----------- Agreement for designating Additional Accounts and conveying the Principal Receivables of such Accounts, whether now existing or hereafter created, have been satisfied and (ii) each of the representations and warranties made by the Seller in Section 5 is true and correct as of the Addition Date. The Owner --------- Trustee may conclusively rely on such Officer's Certificate, shall have no duty to make inquiries with regard to the matters set forth therein, and shall incur no liability in so relying. (b) Opinion of Counsel. The Seller shall have delivered to the Owner ------------------ Trustee an Opinion of Counsel with respect to the Additional Accounts designated hereby substantially in the form of Exhibit F-2 to the Agreement. ----------- Exhibit A-4 (c) Additional Information. The Seller shall have delivered to the Owner ---------------------- Trustee such information as was reasonably requested by the Owner Trustee to satisfy itself as to the accuracy of the representation and warranty set forth in Section 5(d) to this Assignment. ------------ 7. Amendment of the Transfer and Servicing Agreement. The Transfer and ------------------------------------------------- Servicing Agreement is hereby amended to provide that all references therein to the "Transfer and Servicing Agreement", to "this Agreement" and "herein" shall be deemed from and after the Addition Date to be a dual reference to the Transfer and Servicing Agreement as supplemented by this Assignment. Except as expressly amended hereby, all of the representations, warranties, terms, covenants and conditions of the Transfer and Servicing Agreement shall remain unamended and shall continue to be, and shall remain, in full force and effect in accordance with its terms and except as expressly provided herein shall not constitute or be deemed to constitute a waiver of compliance with or a consent to noncompliance with any term or provision of the Transfer and Servicing Agreement. 8. Counterparts. This Assignment may be executed in two or more counterparts ------------ (and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one and the same instrument. 9. Rights of the Owner Trustee. Each of the parties hereto acknowledges and --------------------------- agrees that this Agreement is being executed and delivered by Bankers Trust Company not individually but solely and exclusively in its capacity as Owner Trustee on behalf of First Consumers Credit Card Master Note Trust for the purpose and with the intention of binding First Consumers Credit Card Master Note Trust. No obligations or liabilities hereunder shall run against Bankers Trust Company in its individual capacity or against its properties or assets. 10. No Bankruptcy Petition. (a) Each of Seller and Servicer, severally and not ---------------------- jointly, hereby covenants and agrees that, prior to the date which is one (1) year and one (1) day after the payment in full of all Notes, it will not institute against, or join any other Person in instituting against, the Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States. (b) Each of Servicer and Issuer, severally and not jointly, hereby covenants and agrees that, prior to the date which is one (1) year and one (1) day after the payment in full of all Notes, it will not institute against, or join any other Person in instituting against, the Seller 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. Exhibit A-5 IN WITNESS WHEREOF, the undersigned have caused this Assignment of Receivables in Additional Accounts to be duly executed and delivered by their respective duly authorized officers on the day and year first above written. FIRST CONSUMERS CREDIT CORPORATION, Seller By:__________________________________________ Name: Title: FIRST CONSUMERS NATIONAL BANK, Servicer By:__________________________________________ Name: Title: FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST, Issuer By: BANKERS TRUST COMPANY, not in its individual capacity but solely on behalf of the Issuer By:__________________________________________ Name: Title: Exhibit A-6 Schedule 1 to Assignment of Receivables in Additional Accounts ADDITIONAL ACCOUNTS ------------------- Exhibit A-7 EXHIBIT B to TRANSFER AND SERVICING AGREEMENT FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS (As required by Section 2.7 of the Transfer and Servicing Agreement) ----------- REASSIGNMENT No. _______ OF RECEIVABLES dated as of _________, by and among FIRST CONSUMERS CREDIT CORPORATION, a Delaware corporation, as Seller (the "Seller"), FIRST CONSUMERS NATIONAL BANK, a national banking association, as ------ Servicer (the "Servicer"), and FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST (the "Issuer"), pursuant to the Transfer and Servicing Agreement referred to ------ below. WITNESSETH: WHEREAS the Seller, the Servicer and the Issuer are parties to the Transfer and Servicing Agreement, dated as of March 1, 2001, and amended and restated as of December 31, 2001 (the "Agreement"); --------- WHEREAS pursuant to the Agreement, the Seller wishes to remove from the Issuer all Receivables owned by the Issuer in certain designated Accounts (the "Removed ------- Accounts") and to cause the Issuer to reconvey the Receivables of such Removed - -------- Accounts, whether now existing or hereafter created, from the Issuer to the Seller; and WHEREAS the Issuer is willing to accept such designation and to reconvey the Receivables in the Removed Accounts subject to the terms and conditions hereof; NOW, THEREFORE, the Seller and the Issuer hereby agree as follows: 1. Defined Terms. All terms defined in the Agreement and used herein shall ------------- have such defined meanings when used herein, unless otherwise defined herein. "Removal Date" means, with respect to the Removed Accounts designated hereby, ------------ ___________, ____. "Removal Notice Date" means, with respect to the Removed Accounts ------------------- ______________, ____, (which shall be a date on or prior to the fifth Business Day prior to the Removal Date). 2. Designation of Removed Accounts. On or before the date that is ten (10) ------------------------------- Business Days after the Removal Date, the Seller will deliver to the Owner Trustee a computer file or microfiche list containing a true and complete schedule identifying Exhibit B-1 all Accounts the Receivables of which are being removed from the Issuer, specifying for each such Account, as of the Removal Notice Date, its account number, the aggregate amount outstanding in such Account and the aggregate amount of Principal Receivables in such Account, which computer file or microfiche list shall supplement Schedule 1 to the Agreement. ---------- 3. Conveyance of Receivables. (a) The Issuer does hereby transfer, assign, set ------------------------- over and otherwise convey to the Seller, without recourse, on and after the Removal Date, all right, title and interest of the Issuer in, to and under the Receivables existing at the close of business on the Removal Notice Date and thereafter created from time to time in the Removed Accounts designated hereby, all Recoveries related thereto, all monies due or to become due and all amounts received or receivable with respect thereto and all proceeds thereof. (b) In connection with such transfer, the Issuer agrees to execute and deliver to the Seller on or prior to the date this Reassignment is delivered, applicable termination statements prepared by the Seller with respect to the Receivables existing at the close of business on the Removal Notice Date and thereafter created from time to time in the Removed Accounts reassigned hereby and the proceeds thereof evidencing the release by the Issuer of its interest in the Receivables in the Removed Accounts, and meeting the requirements of applicable state law, in such manner and such jurisdictions as are necessary to terminate such interest. 4. Representations and Warranties of the Seller. The Seller hereby represents -------------------------------------------- and warrants to the Issuer as of the Removal Date: (a) Legal Valid and Binding Obligation. This Reassignment Agreement constitutes ---------------------------------- a legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting the enforcement of creditors' rights in general and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity); and (b) Selection Procedures. No selection procedures believed by the Seller to be -------------------- materially adverse to the interests of the Noteholders were utilized in selecting the Removed Accounts designated hereby. 5. Condition Precedent. The amendment of the Transfer and Servicing Agreement ------------------- set forth in Section 7 hereof is subject to the satisfaction, on or prior to the --------- Removal Date, of the following condition precedent: 6. Officers' Certificate. The Seller shall have delivered to the Owner Trustee --------------------- an Officers' Certificate certifying that (i) as of the Removal Date, all requirements set forth in Section 2.5 of the Transfer and Servicing Agreement ----------- for designating Removed Exhibit B-2 Accounts and reconveying the Receivables of such Removed Accounts, whether now existing or hereafter created, have been satisfied, and (ii) each of the representations and warranties made by the Seller in Section 5 hereof is true --------- and correct as of the Removal Date. The Owner Trustee may conclusively rely on such Officer's Certificate, shall have no duty to make inquiries with regard to the matters set forth therein and shall incur no liability in so relying. 7. Amendment of the Transfer and Servicing Agreement. The Transfer and ------------------------------------------------- Servicing Agreement is hereby amended to provide that all references therein to the "Transfer and Servicing Agreement", to "this Agreement" and "herein" shall be deemed from and after the Removal Date to be a dual reference to the Transfer and Servicing Agreement as supplemented by this Reassignment Agreement. Except as expressly amended hereby, all of the representations, warranties, terms, covenants and conditions of the Transfer and Servicing Agreement shall remain unamended and shall continue to be, and shall remain, in full force and effect in accordance with its terms and except as expressly provided herein shall not constitute or be deemed to constitute a waiver of compliance with or a consent to non-compliance with any term or provision of the Transfer and Servicing Agreement. 8. Counterparts. This Reassignment Agreement may be executed in two or more ------------ counterparts (and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one and the same instrument. 9. Rights of the Owner Trustee. Each of the parties hereto acknowledges and --------------------------- agrees that this Agreement is being executed and delivered by Bankers Trust Company not individually but solely and exclusively in its capacity as Owner Trustee on behalf of First Consumers Credit Card Master Note Trust for the purpose and with the intention of binding First Consumers Credit Card Master Note Trust. No obligations or liabilities hereunder shall run against Bankers Trust Company in its individual capacity or against its properties or assets. 10. No Bankruptcy Petition. (a) Each of Seller and Servicer, severally and not ---------------------- jointly, hereby covenants and agrees that, prior to the date which is one (1) year and one (1) day after the payment in full of all Notes, it will not institute against, or join any other Person in instituting against, the Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States. (b) Each of Servicer and Issuer, severally and not jointly, hereby covenants and agrees that, prior to the date which is one (1) year and one (1) day after the payment in full of all Notes, it will not institute against, or join any other Person in instituting against, the Seller 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. Exhibit B-3 IN WITNESS WHEREOF, the undersigned have caused this Reassignment Agreement to be duly executed and delivered by their respective duly authorized officers on the day and year first above written. FIRST CONSUMERS CREDIT CORPORATION, Seller By:__________________________________________ Name: Title: FIRST CONSUMERS NATIONAL BANK, Servicer By:__________________________________________ Name: Title: FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST, Issuer By: BANKERS TRUST COMPANY, not in its individual capacity but solely on behalf of the Issuer By:__________________________________________ Name: Title: Exhibit B-4 Schedule 1 to Reassignment Agreement REMOVED ACCOUNTS ---------------- Exhibit B-5 EXHIBIT C to TRANSFER AND SERVICING AGREEMENT FORM OF MONTHLY SERVICER'S CERTIFICATE The undersigned, a duly authorized representative of First Consumers National Bank ("FCNB"), as Servicer pursuant to the Transfer and Servicing Agreement ---- dated as of March 1, 2001, and amended and restated as of December 31, 2001 (the "Transfer and Servicing Agreement") among FCNB, First Consumers Credit -------------------------------- Corporation, and First Consumers Credit Card Master Note Trust, does hereby certify as follows: 1. Capitalized terms used in this Certificate have their respective meanings set forth in the Transfer and Servicing Agreement; provided that the "preceding Monthly -------- ----------------- Period" shall mean the Monthly Period ------ immediately preceding the calendar month in which this Certificate is delivered. This Certificate is delivered pursuant to Section 3.4(b) of the Transfer and -------------- Servicing Agreement. References herein to certain sections and subsections are references to the respective sections and subsections of the Transfer and Servicing Agreement. 2. FCNB is the Servicer under the Transfer and Servicing Agreement. 3. The undersigned is a Servicing Officer. 4. The date of this Certificate is a Determination Date under the Transfer and Servicing Agreement. 5. The aggregate amount of Collections processed during the preceding Monthly Period was equal to $____________ 6. The aggregate amount of the Allocation Percentage of Collections of Principal Receivables processed by the Servicer pursuant to Article VIII of the Indenture during the preceding Monthly Period was equal to $______________ Exhibit C-1 7. The aggregate amount of the Allocation Percentage of Finance Charge Collections processed by the Servicer pursuant to Article VIII of the Indenture during the preceding Monthly Period was equal to $ ____________ 8. The Default Amount for the preceding Monthly Period was equal to $____________ 9. Net Recoveries for the preceding Monthly Period was equal to $____________ 10. The Portfolio Yield for the preceding Monthly Period for each of the following Series was equal to: Series __________$_____________ Series __________$_____________ 11. The Base Rate for the preceding Monthly Period for each of the following Series was equal to: Series __________$_____________ Series __________$_____________ 12. The aggregate amount of Receivables as of the last day of the preceding Monthly Period was equal to $______________ 13. The aggregate amount of funds on deposit in the Collection Account (or any Subaccount thereof) and each other Series Account with respect to Collections processed as of the end of the last day of the preceding Monthly Period was equal to $____________ 14. The aggregate amount, if any, of withdrawals, drawings or payments under any Enhancement with respect to each Series made with respect to the preceding Monthly Period was equal to $____________ Exhibit C-2 15. The aggregate amount payable to the Noteholders on the succeeding Distribution Date in respect of interest is equal to $____________ 16. The aggregate amount payable to the Noteholders on the succeeding Distribution Date in respect of principal is equal to $____________ Exhibit C-3 EXHIBIT D to TRANSFER AND SERVICING AGREEMENT FORM OF ANNUAL SERVICER'S CERTIFICATE The undersigned, a duly authorized representative of First Consumers National Bank ("FCNB") as Servicer pursuant to the Transfer and Servicing ---- Agreement dated as of March 1, 2001, and amended and restated as of December 31, 2001 (the "Transfer and Servicing Agreement") among FCNB, First Consumers Credit -------------------------------- Corporation and Spiegel Credit Card Master Note Trust, does hereby certify that: 1. FCNB is Servicer under the Transfer and Servicing Agreement. 2. The undersigned is duly authorized pursuant to the Transfer and Servicing Agreement to execute and deliver this Certificate to the Owner Trustee. 3. This Certificate is delivered pursuant to Section 3.5 of the ----------- Transfer and Servicing Agreement. 4. A review of the activities of the Servicer during the calendar year ended December 31, 200_ was conducted under my supervision. 5. Based on such review, the Servicer has, to the best of my knowledge, fully performed all its obligations under the Transfer and Servicing Agreement throughout such calendar year and no default in the performance of such obligations has occurred or is continuing except as set forth in paragraph 6 below. 6. The following is a description of each default in the performance of the Servicer's obligations under the provisions of the Transfer and Servicing Agreement known to me to have been made during the calendar year ended December 31, 200_, which sets forth in detail the (i) nature of each such default, (ii) the action taken by the Servicer, if any, to remedy each such default and (iii) the current status of each such default: [If applicable, insert "None."] Exhibit D-1 IN WITNESS WHEREOF, the undersigned has duly executed this Certificate this day of ______, 200 ___. ___________________________________ Name: Title: Exhibit D-2 EXHIBIT E to TRANSFER AND SERVICING AGREEMENT FORM OF ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT First Consumers National Bank 9300 S. W. Gemini Drive Beaverton, Oregon 97005 First Consumers Credit Corporation 400 West 9/th/ Street, Suite 302D Wilmington, Delaware, 19801 The Bank of New York 2 North LaSalle Street, Suite 1020 Chicago, Illinois 60602 The Management of First Consumers National Bank, First Consumers Credit Corporation and The Bank of New York: We have performed the procedures enumerated below, which were agreed to by the management of First Consumers National Bank ("FCNB"), First Consumers Credit ---- Corporation ("FCCC") and The Bank of New York (the "Trustee"), solely to assist ---- ------- you in evaluating the Monthly Noteholder's Statements and the Monthly Servicer Certificates (collectively, the Certificates) issued pursuant to the Transfer and Servicing Agreement dated as of December 31, 2001 among FCNB, FCCC and First Consumers Credit Card Master Note Trust (the "Transfer and Servicing Agreement") -------------------------------- in accordance with the requirements stated therein. This agreed-upon procedures engagement was performed in accordance with standards established by the American Institute of Certified Public Accountants. The sufficiency of these procedures is solely the responsibility of FCNB, FCCC and the Trustee. Consequently, we make no representation regarding the sufficiency of the procedures described below either for the purpose for which this report has been requested or for any other purpose. For purposes of these agreed-upon procedures, differences between reported amounts and FCNB (the "Servicer") documented amounts of less than or equal to -------- $5,000 or 5% of the average of the amounts being compared were not considered exceptions to the procedures performed. Our procedures and findings are as follows: Exhibit E-1 1. We compared and/or recalculated, each of the amounts or entries shown in the Monthly Noteholder's Statements and the Monthly Servicer Certificates, other than entries showing "zero" amounts or "not applicable", for each of the months in the year ended December 31, _____ based on one or more of the following: . Corresponding amounts or entries on the Transfer and Servicing Agreement, . Schedules prepared by FCNB, . Data extracted from FCNB's credit accounting system, . Data provided to FCNB from the Trustee, . Recalculations based on schedules prepared by FCNB and data extracted from FCNB's credit accounting system, or . In instances where timely data was not available at the time the Certificates were prepared, to documented estimates by the Servicer. g. We read the "Annual Servicer's Certificate" for the year ended December 31, _____ required by the Transfer and Servicing Agreement and made inquiries of FCNB's management regarding FCNB's compliance with the guidelines of the Transfer and Servicing Agreement. FCNB's management represented full compliance with the Transfer and Servicing Agreement. We were not engaged to, and did not, perform an examination, the objective of which would be the expression of an opinion on the Certificates. Accordingly, we do not express such an opinion. Had we performed additional procedures, other matters might have come to our attention that would have been reported to you. This report is intended solely for the information and use of the specified users listed above and is not intended to be and should not be used by anyone other than these specified users. Date Exhibit E-2 EXHIBIT F-1 FORM OF OPINION OF COUNSEL WITH RESPECT TO AMENDMENTS (Provisions to be included in Opinion of Counsel to be delivered pursuant to Section 9.2(d)(i)) ----------------- The opinions set forth below may be subject to all the qualifications, assumptions, limitations and exceptions taken or made in the Opinions Of Counsel delivered on any applicable Closing Date. (i) The amendment to the Transfer and Servicing Agreement, attached hereto as Schedule 1 (the "Amendment" ), has been duly authorized, executed and ---------- --------- delivered by Seller and constitutes the legal, valid and binding agreement of Seller, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws from time to time in effect affecting creditors' rights generally. The enforceability of Seller's obligations is also subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (ii) The Amendment has been entered into in accordance with the terms and provisions of Section 9.1 of the Transfer and Servicing Agreement. ----------- Exhibit F-1-1 EXHIBIT F-2 to TRANSFER AND SERVICING AGREEMENT (Provisions to be included in Opinion of Counsel to be delivered pursuant to Section 2.6(c)(vii) and Section 9.2(d)(ii)) ------------------- ------------------ The opinions set forth below may be subject to all the qualifications, assumptions, limitations and exceptions taken or made in the Opinions of Counsel delivered on any applicable Closing Date. 1. Except for any Receivable that is evidenced by an instrument, the Receivables constitute accounts under Article 9 of the applicable UCC. 2. If the Assignment, together with the Agreement, constitutes a valid assignment of all Seller's right, title and interest in, to and under the Receivables in Schedule 1 to the Assignment and all rights to security for such ---------- Receivables and the proceeds thereof (including without limitation rights to bank accounts or certificates of deposit pledged as collateral) (the "Collateral") and all of the Seller's rights, remedies, powers, and privileges ---------- with respect to such Collateral, then the Issuer has or will acquire all of Seller's right, title and interest in, to and under the Collateral free and clear of any Lien or interest of any person at the time of transfer (and anytime thereafter with respect to any Lien or interest arising through or under the Seller except as provided in the Agreement), except for Liens for municipal or other local taxes permitted under Section 2.5(b) of the Agreement. 3. If the Assignment, together with the Agreement, does not constitute a valid assignment of all of the Seller's right, title and interest in, to and under the Collateral, then the Assignment creates a valid security interest in all right, title and interest of Seller in, to and under the Collateral in favor of the Issuer. 4. The Receivables Purchase Agreement constitutes a valid assignment of all of the RPA Seller's right, title and interest in, to and under the Collateral and all of its rights, remedies, powers, and privileges with respect to such Collateral. The Seller has or will acquire all the RPA Seller's right, title and interest in, to and under such Collateral free and clear of any Lien or interest of any person at the time of transfer (and anytime thereafter with respect to any Lien or interest arising through or under the RPA Seller, except as provided in the Agreement), except for Liens for state, municipal or other local taxes. 5. The security interest described in paragraphs 3 above is perfected and of first priority. Exhibit F-2-1 EXHIBIT F-3 PROVISIONS TO BE INCLUDED IN ANNUAL OPINION OF COUNSEL The opinions set forth below may be subject to certain qualifications, assumptions, limitations and exceptions taken or made in the opinion of counsel to Seller with respect to similar matters delivered on the Initial Closing Date. Unless otherwise indicated, all capitalized terms used herein shall have the meanings ascribed to them in the Transfer and Servicing Agreement. 1. No filing or other action, other than such filing or other action described in this opinion letter, is necessary from the date of this opinion letter through June 30 of the following year to continue the perfected status of the security interest of the Trust in the Receivables and all rights to security for such Receivables and the proceeds thereof (including without limitation rights to bank accounts or certificates of deposit pledged as collateral) (the "Collateral") described in the financing statements referenced in this opinion ---------- letter. 2. No filing or other action, other than such filing or other action described in this opinion letter, is necessary from the date of this opinion letter through June 30 of the following year to continue the perfected status of the security interest of the Indenture Trustee in the Collateral described in the financing statements referenced in this opinion letter. 3. No filing or other action, other than such filing or other action described in this opinion letter, is necessary from the date of this opinion letter through June 30 of the following year to continue the perfected status of the security interest of the Seller in the Collateral described in the financing statements referenced in this opinion letter. Exhibit F-3-1 SCHEDULE 1 List of Accounts ---------------- [Original list delivered to Owner Trustee] 1-1 SCHEDULE 2 ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS In addition to the representations, warranties and covenants contained in the Transfer and Servicing Agreement, Seller hereby represents, warrants and covenants to the Trust as follows: (1) The Transfer and Servicing Agreement creates either (A) a valid transfer to the Issuer of all right, title and interest of Seller in, to and under (i) the Receivables conveyed to the Seller pursuant to the Receivables Purchase Agreement, (ii) all rights to security for such Receivables (including without limitation rights to bank accounts or certificates of deposit pledged as collateral) (the "Obligor Collateral") and (iii) the Collateral Certificate (the ------------------ Obligor Collateral and Collateral Certificate together with the Receivables, the "Collateral") and the Collateral will be held by the Issuer free and clear of ---------- any Lien, except for (w) the interests of the Noteholders and the Enhancement Providers, (x) Liens permitted pursuant to paragraph 3 below, or (y) the interests of the Seller as holder of the Seller Interest or (B) a valid and continuing security interest (as defined in the applicable UCC) in the Collateral in favor of the Issuer, which security interest is prior to all other Liens, and is enforceable as such against creditors of and purchasers from the Seller (other than Liens permitted pursuant to paragraph 3 below). (2) The Receivables constitute "accounts" within the meaning of the applicable UCC. The Obligor Collateral constitutes security interests on personal property securing certain of those accounts, and the creation and perfection of a security interest in such security interests is governed by Sections 9-203(g) and 9-308(e), respectively, of the applicable UCC. The Collateral Certificate constitutes a "certificated security," "instrument" or "general intangible" within the meaning of the applicable UCC. (3) Immediately prior to the conveyance of, or grant of the security interest in, the Collateral pursuant to the Transfer and Servicing Agreement, Seller owns and has good and marketable title to the Collateral, and a valid, perfected security interest in the collateral for the Receivables in any secured Accounts, in each case, free and clear of any Lien, claim or encumbrance of any Person; provided that nothing in this paragraph 3 shall prevent or be deemed to prohibit Seller from suffering to exist upon any of the Collateral any Liens for any taxes if such taxes shall not at the time be due and payable or if FCNB or Seller, as applicable, shall currently be contesting the validity thereof in good faith by appropriate proceedings and shall have set aside on its books adequate reserves with respect thereto. Seller has received all consents and approvals required by the terms of the Collateral to the valid transfer of or grant of security interest in the Collateral hereunder to the Issuer. 1-2 (4) (a) If perfection is by filing, Seller has caused, or will have caused within 10 days, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Collateral granted to the Issuer under the Transfer and Servicing Agreement. (b) If perfection is by possession, all original executed copies of each mortgage note, promissory note or security certificate that constitutes or evidences the Collateral has been delivered to the Issuer. Each security certificate either (i) is in bearer form, (ii) has been indorsed, by an effective indorsement, to the Issuer or in blank or (iii) has been registered in the name of the Issuer. (5) Other than the grant of the security interest in the Collateral to the Issuer pursuant to the Transfer and Servicing Agreement, Seller has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Collateral. Seller has not authorized the filing of and is not aware of any financing statements against Seller that include a description of collateral covering the Collateral. (a) If perfection is by filing, Issuer has in its possession all original copies of the mortgage notes, promissory notes or security certificates that constitute or evidence the Collateral. The mortgage notes, promissory notes or security certificates that constitute or evidence the Collateral do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Issuer. All financing statements to be filed against Seller in favor of Issuer in connection herewith describing the Collateral will contain a statement to the effect that "A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Issuer". (b) If perfection is by possession, none of the mortgage notes, promissory notes or security certificates that constitute or evidence the Collateral have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Issuer. (6) Seller is not aware of any judgment, ERISA or tax lien filings against Seller. (7) Notwithstanding any other provision of the Transfer and Servicing Agreement, the representations and warranties set forth in this Schedule 2 shall ---------- be continuing, and remain in full force and effect, until such time as all Notes have been finally and fully paid and shall survive the transfer of the Trust Assets to the Issuer under the Transfer and Servicing Agreement and the termination of the rights and obligations of the Servicer pursuant to Article ------- VII thereof. The parties to the Transfer and Servicing Agreement shall not, - --- without satisfying the Rating Agency Condition, waive a breach of any representation or warranty set forth in this Schedule 2. In order to evidence ---------- the interests of Seller and the Issuer under the Transfer and Servicing Agreement, Seller and Servicer shall take such action, or execute and deliver such instruments (other than filing financing statements) as may be necessary or advisable (including, without limitation, such actions as are requested by Indenture Trustee) to maintain and perfect, as a first priority interest, Seller's or the Issuer's security interest in the Collateral. The Servicer shall, from time to time and within the time limits 1-3 established by law, prepare and present to the Issuer for the Indenture Trustee's authorization and approval all financing statements, amendments, continuations or initial financing statements in lieu of a continuation statement, or other filings necessary to continue, maintain and perfect as a first-priority interest. The Indenture Trustee's approval of such filings shall authorize the Servicer to file such financing statements under the applicable UCC without the signature of Seller or Issuer where allowed by applicable law. Notwithstanding anything else in the Transfer and Servicing Agreement to the contrary, the Servicer shall not have any authority to file a termination, partial termination, release, partial release, or any amendment that deletes the name of a debtor or excludes collateral of any such financing statements, without the prior written consent of the Indenture Trustee. The Issuer may require, prior to authorizing or filing any such termination, partial termination, release, partial release or amendment, that Servicer provide an Opinion of Counsel that such filings are authorized under the Transfer and Servicing Agreement. 1-4 EX-4.3 5 dex43.txt AMENDED AND RESTATED TRUST AGREEMENT 12/31/2001 Exhibit 4.3 ----------- TRUST AGREEMENT between FIRST CONSUMERS CREDIT CORPORATION, as Seller, and BANKERS TRUST COMPANY, as Owner Trustee Dated as of March 1, 2001, and amended and restated as of December 31, 2001 TABLE OF CONTENTS
Page ARTICLE I DEFINITIONS................................................... 1 Section 1.1. Capitalized Terms .............................. 1 Section 1.2. Other Definitional Provisions .................. 1 ARTICLE II ORGANIZATION.................................................. 2 Section 2.1. Name ........................................... 2 Section 2.2. Office ......................................... 2 Section 2.3. Purpose and Powers ............................. 2 Section 2.4. Appointment of Owner Trustee ................... 3 Section 2.5. Initial Capital Contribution of Trust Estate.... 3 Section 2.6. Declaration of Trust ........................... 3 Section 2.7. Title to Trust Property ........................ 3 Section 2.8. Situs of Trust ................................. 3 Section 2.9. Representations and Warranties of Seller ....... 4 Section 2.10. Liability of Beneficiaries...................... 5 ARTICLE III BENEFICIAL INTERESTS ......................................... 5 Section 3.1. Initial Ownership .............................. 5 Section 3.2. Seller Interest ................................ 5 Section 3.3. Form of Seller Interest ....................... 5 Section 3.4. Restrictions on Transfer; Issuance of Supplemental Certificates ...................... 5 ARTICLE IV ACTIONS BY OWNER TRUSTEE...................................... 7 Section 4.1. Prior Notice to Seller with Respect to Certain Matters................................. 7 Section 4.2. Restrictions on Power .......................... 7 ARTICLE V AUTHORITY AND DUTIES OF OWNER TRUSTEE......................... 8 Section 5.1. General Authority .............................. 8 Section 5.2. General Duties ................................. 8 Section 5.3. Action Upon Instruction ........................ 8 Section 5.4. No Duties Except as Specified in this Agreement or in Instructions ................... 9 Section 5.5. No Action Except under Specified Documents or Instructions ...................... 10 Section 5.6. Restrictions ................................... 10 Section 5.7. Tax Returns .................................... 10
i ARTICLE VI CONCERNING THE OWNER TRUSTEE........................................ 11 Section 6.1. Acceptance of Trusts and Duties...................... 11 Section 6.2. Furnishing of Documents.............................. 13 Section 6.3. Representations and Warranties....................... 13 Section 6.4. Reliance; Advice of Counsel.......................... 13 Section 6.5. Not Acting in Individual Capacity.................... 14 Section 6.6. Owner Trustee Not Liable for Notes or Receivables.... 14 Section 6.7. Owner Trustee May Own Notes.......................... 15 ARTICLE VII COMPENSATION OF OWNER TRUSTEE....................................... 15 Section 7.1. Owner Trustee's Fees and Expenses.................... 15 Section 7.2. Indemnification...................................... 15 Section 7.3. Payments to the Owner Trustee........................ 16 ARTICLE VIII TERMINATION OF TRUST AGREEMENT...................................... 16 Section 8.1. Termination of Trust Agreement....................... 16 ARTICLE IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES.............. 16 Section 9.1. Eligibility Requirements for Owner Trustee .......... 16 Section 9.2. Resignation or Removal of Owner Trustee ............. 17 Section 9.3. Successor Owner Trustee ............................. 18 Section 9.4. Merger or Consolidation of Owner Trustee ............ 18 Section 9.5. Appointment of Co-Trustee or Separate Trustee........ 18 ARTICLE X MISCELLANEOUS....................................................... 20 Section 10.1. Supplements and Amendments .......................... 20 Section 10.2. No Legal Title to Trust Estate in Seller............. 22 Section 10.3. Limitations on Rights of Others ..................... 22 Section 10.4. Notices ............................................. 22 Section 10.5. Severability ........................................ 22 Section 10.6. Separate Counterparts ............................... 22 Section 10.7. Successors and Assigns .............................. 23 Section 10.8. Non-petition Covenants .............................. 23 Section 10.9. No Recourse ......................................... 23 Section 10.10. Headings ............................................ 24 Section 10.11. Governing Law ....................................... 24 Section 10.12. Integration of Documents ............................ 24
ii TRUST AGREEMENT, dated as of March 1, 2001, and amended and restated as of December 31, 2001 (this "Agreement"), between FIRST CONSUMERS CREDIT --------- CORPORATION, a Delaware corporation, as Seller, and BANKERS TRUST COMPANY, a New York banking corporation as Owner Trustee. W I T N E S S E T H : WHEREAS, Bankers Trust Company is a party to that certain trust agreement dated as of March 1, 2001 between First Consumers National Bank ("FCNB") and Bankers Trust Company (the "Original Trust Agreement"); ---- ------------------------ WHEREAS, First Consumers National Bank has entered into an Assignment and Assumption Agreement dated as of the date hereof between First Consumers National Bank and First Consumers Credit Corporation ("FCCC"), whereby FCNB ---- assigns its rights and obligations under the Original Trust Agreement to FCCC and FCCC assumes such rights and obligations (the "Assignment and Assumption ------------------------- Agreement"); - --------- WHEREAS, this amended and restated Agreement is being made to reflect the Assignment and Assumption Agreement; NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: ARTICLE I DEFINITIONS Section 1.1. Capitalized Terms. Capitalized terms used herein and not ----------------- otherwise defined herein are defined in Annex A to the Master Indenture, dated ------- as of the date hereof, between First Consumers Credit Card Master Note Trust and The Bank of New York. Section 1.2. Other Definitional Provisions. All terms defined directly ----------------------------- or by reference in this Agreement shall have the defined meanings when used in any certificate or other document delivered pursuant hereto unless otherwise defined therein. For purposes of this Agreement and all such certificates and other documents, unless the context otherwise requires: (a) accounting terms not otherwise defined in this Agreement, and accounting terms partly defined in this Agreement to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles; (b) terms defined in Article 9 of the UCC as in effect in the applicable jurisdiction and not otherwise defined in this Agreement are used as defined in that Article; (c) any reference to each Rating Agency shall only apply to any specific rating agency if such rating agency is then rating any outstanding Series; (d) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (e) the words "hereof," "herein" and "hereunder" and words of similar import refer to this Agreement (or the certificate or other document in which they are used) as a whole and not to any particular provision of this Agreement (or such certificate or document); (f) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to this Agreement (or the certificate or other document in which the reference is made), and references to any paragraph, Section, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (g) the term "including" means "including without limitation"; (h) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (i) references to any Person include that Person's successors and assigns; and (j) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof. ARTICLE II ORGANIZATION Section 2.1. Name. The trust created hereby shall be known as "First ---- Consumers Credit Card Master Note Trust," in which name the Trust and Owner Trustee on behalf of the Trust each shall have power and authority and is hereby authorized and empowered to and may conduct the business of the Trust, make and execute contracts and other instruments on behalf of the Trust and sue and be sued. Section 2.2. Office. The office of the Trust shall be in care of the ------ Owner Trustee at the Corporate Trust Office or at such other address in the United States as the Owner Trustee may designate by written notice to the Seller and the Indenture Trustee. Section 2.3. Purpose and Powers. The purpose of the Trust is to engage ------------------ in the activities set forth in this Section 2.3. The Trust shall have power and ------------ authority and is hereby authorized and empowered, without the need for further action on the part of the Trust, and the Owner Trustee shall have power and authority, and is hereby authorized and empowered, in the name and on behalf of the Trust, to do or cause to be done all acts and things necessary, appropriate or convenient to cause the Trust, to engage in the activities set forth in this Section 2.3 as follows: - ----------- 2 (i) to execute, deliver and issue the Notes pursuant to the Indenture, to issue the Seller Interest and to execute, issue and deliver the Supplemental Certificates, if any, pursuant to this Agreement; (ii) with the proceeds of the sale of the Notes, to acquire the Trust Estate and to pay the Seller the amounts owed pursuant to Section ------- 2.1 of the Transfer and Servicing Agreement; --- (iii) to assign, grant, pledge and mortgage the Collateral pursuant to the Indenture and to hold, manage and distribute to the holders of the Seller Interest pursuant to the terms of this Agreement and the Transaction Documents any portion of the Collateral released from the lien of, and remitted to the Trust pursuant to, the Indenture; (iv) to enter into, execute, deliver and perform the Transaction Documents to which it is to be a party; (v) to engage in those activities, including entering into agreements, that are necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or connected therewith; and (vi) subject to compliance with the Transaction Documents, to engage in such other activities as may be required in connection with conservation of the Trust Estate and the making of payments to the Noteholders and distributions to the holders of the Seller Interest. The Trust shall not have power, authority or authorization to, and shall not, engage in any activity other than in connection with the foregoing or other than as required or authorized by the Transaction Documents. Section 2.4. Appointment of Owner Trustee. The Seller hereby appoints ---------------------------- the Owner Trustee as trustee of the Trust effective as of the date hereof, to have all the rights, powers and duties set forth herein. Section 2.5. Initial Capital Contribution of Trust Estate. The Seller -------------------------------------------- hereby assigns, transfers, conveys and sets over to the Owner Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges receipt in trust from the Seller, as of the date hereof, of the foregoing contribution, which shall constitute the initial Trust Estate and shall be held by the Owner Trustee. The Seller shall pay organizational expenses of the Trust as they may arise or shall, upon the request of the Owner Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the Owner Trustee. Notwithstanding anything to the contrary in this Agreement or any other Transaction Document, any payment by the Seller pursuant 3 to this Section 2.5 shall only be made to the extent the Seller has funds ----------- available for such purpose after amounts payable to holders of the Notes have been paid in full. Each party hereto agrees that the failure to make such payment shall not give rise to any claim against the Seller. Section 2.6. Declaration of Trust. The Owner Trustee hereby declares -------------------- that it will hold the Trust Estate in trust upon and subject to the conditions set forth herein for the use and benefit of the Seller, subject to the obligations of the Trust under the Transaction Documents to which it is a party. It is the intention of the parties hereto that the Trust constitute a trust under the laws of the State of Illinois and that this Agreement constitute the governing instrument of such trust. It is the intention of the parties hereto that, for income tax purposes, the Trust shall be treated as a security device and disregarded as an entity and its assets shall be treated as owned in whole by the Seller. The parties hereto agree that they will take no action contrary to the foregoing intention. Effective as of the date hereof, the Owner Trustee shall have all rights, powers and authority set forth herein and, to the extent not inconsistent herewith, in the laws of the State of Illinois with respect to accomplishing the purposes of the Trust. Section 2.7. Title to Trust Property. Legal title to all the Trust ----------------------- Estate shall be vested at all times in the Trust as a separate legal entity except where applicable law in any jurisdiction requires title to any part of the Trust Estate to be vested in a trustee or trustees, in which case title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a separate trustee, as the case may be. Section 2.8. Situs of Trust. The Trust will be located and administered -------------- in the State of New York. All bank accounts maintained by the Owner Trustee on behalf of the Trust shall be located in the State of New York. The Trust shall not have any employees in any state other than New York or Illinois; provided, -------- however, that nothing herein shall restrict or prohibit the Owner Trustee from - ------- having employees within or without the State of New York. Payments will be received by the Trust only in New York or Illinois, and payments will be made by the Trust only from New York or Illinois. The only office of the Trust will be at the Corporate Trust Office. Section 2.9. Representations and Warranties of Seller. The Seller hereby ---------------------------------------- represents and warrants to the Owner Trustee (as such or in its individual capacity) that: (a) The Seller is a corporation duly organized and validly existing in good standing under the laws of Delaware and has full corporate power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and to execute, deliver and perform its 4 obligations under the Transaction Documents to which it is a party and to perform its obligations as contemplated thereby. (b) The Seller is duly qualified to do business and is in good standing (or is exempt from such requirement) in any State required in order to conduct its business, and has obtained all necessary licenses and approvals with respect to the Seller, in each jurisdiction in which failure to so qualify or to obtain such licenses and approvals would have a material adverse effect on its ability to perform its obligations under the Transaction Documents to which it is a party. (c) The execution and delivery of this Agreement and the consummation of the transactions provided for the Transaction Documents to which the Seller is a party have been duly authorized by the Seller by all necessary corporate action on its part. The Seller has the power and authority to assign the property to be assigned to and deposited with the Trust pursuant to Section 2.5 of this Agreement and Section 2.1 of the Transfer and Servicing Agreement. (d) The execution and delivery of the Transaction Documents to which the Seller is a party, the performance of the transactions contemplated by the Transaction Documents to which the Seller is a party and the fulfillment of the terms hereof and thereof will not conflict with or violate any Requirements of Law applicable to the Seller, or conflict with, result in any breach of any of the material terms and provisions of, or constitute (with or without notice or lapse of time or both) a material default under, any indenture, contract, agreement, mortgage, deed of trust or other instrument to which the Seller is a party or by which it or any of its properties are bound (other than violations of such indentures, contracts, agreements, mortgages, deeds of trust or other instruments which, individually or in the aggregate, would not have a material adverse effect on the Seller's ability to perform its obligations under this Agreement). (e) There are no proceedings or investigations pending or, to the best knowledge of the Seller, threatened, against the Seller before any court, regulatory body, administrative agency, or other tribunal or governmental instrumentality having jurisdiction over the Seller (i) asserting the invalidity of any of the Transaction Documents to which the Seller is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by any of the Transaction Documents to which the Seller is a party, (iii) seeking any determination or ruling that, in the reasonable judgment of the Seller, would materially and adversely affect the performance by the Seller of its obligations under the Transaction Documents to which the Seller is a party, or (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of the Transaction Documents to which the Seller is a party. 5 (f) This Agreement is legal, valid and enforceable against the Seller. Section 2.10. Liability of Beneficiaries. The holders of the Seller -------------------------- Interest shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. ARTICLE III BENEFICIAL INTERESTS Section 3.1. Initial Ownership. The Seller, as the holder of the Seller ----------------- Interest (i) shall initially be the only beneficial owner of the Trust and (ii) shall be bound by the provisions of this Trust Agreement. Section 3.2. Seller Interest. The Seller Interest shall represent an --------------- undivided beneficial interest in the Trust Estate subject to the lien of the Notes created pursuant to the Indenture, including the right to receive Collections with respect to the Receivables and other amounts at the times and in the amounts specified in the Indenture and any Indenture Supplement to be paid to the holders of the Seller Interest. Section 3.3. Form of Seller Interest. The Seller Interest shall be an ----------------------- uncertificated interest in the Trust. Section 3.4. Restrictions on Transfer; Issuance of Supplemental -------------------------------------------------- Certificates. At any time the Seller may sell, transfer, assign, participate, - ------------ pledge or otherwise dispose of the Seller Interest (or any interest therein) or may direct the Owner Trustee to issue a certificate representing an interest in the Seller Interest (a "Supplemental Certificate"). The form and terms of any ------------------------ interest in the Seller Interest or any Supplemental Certificate held by each such additional holder shall be defined in a supplement (a "Seller Interest --------------- Supplement") to this Agreement (which Seller Interest Supplement shall be - ---------- subject to Section 10.1 to the extent that it amends any of the terms of this ------------ Agreement) to be delivered to or upon the order of the Seller. The sale, transfer, assignment, participation, pledge or other disposition of the Seller Interest (or any interest therein) to any Person other than an Affiliate of Seller or the issuance of any such Supplemental Certificate to any Person other than an Affiliate of Seller shall be subject to satisfaction of the following conditions: (i) on or before the fifth day immediately preceding the issuance, the Seller shall have given the Owner Trustee, the Servicer, the Indenture Trustee and each Rating Agency notice (unless such notice requirement is otherwise waived) of such action; 6 (ii) the Seller shall have delivered to the Owner Trustee and the Indenture Trustee the related Seller Interest Supplement in form satisfactory to the Owner Trustee and the Indenture Trustee, executed by each party hereto; (iii) the Rating Agency Condition shall have been satisfied with respect to such action; (iv) such action will not result in any Adverse Effect and the Seller shall have delivered to the Owner Trustee and the Indenture Trustee an Officer's Certificate, dated the date of such action to the effect that the Seller reasonably believes that such action will not, based on the facts known to such officer at the time of such certification, have an Adverse Effect and that all other conditions to such action have been satisfied; (v) the Seller shall have delivered to the Owner Trustee and Indenture Trustee (with a copy to each Rating Agency) a Tax Opinion, dated the date of such action with respect to such action and Opinions of Counsel to the effect that (A) such action will not subject the Trust to any state income tax or to the Illinois Personal Property Replacement Tax, and (B) such action, assignment, participation, pledge or other disposition does not require registration of the interest under the Securities Act or any state securities law except for any such registration that has been duly completed and become effective; and (vi) the Aggregate Principal Balance shall not be less than the Minimum Aggregate Principal Balance, as of the date of such action after giving effect to such action. Notwithstanding the foregoing, any Supplemental Certificate or any interest in the Seller Interest held by the Seller or any other Person at any time on or after the date of its initial issuance may be transferred or exchanged only upon the delivery to the Owner Trustee and Indenture Trustee of a Tax Opinion dated as of the date of such transfer or exchange, as the case may be, with respect to such transfer or exchange, and compliance with any applicable Seller Interest Supplement. ARTICLE IV ACTIONS BY OWNER TRUSTEE 7 Section 4.1. Prior Notice to Seller with Respect to Certain Matters. ------------------------------------------------------ With respect to the following matters, unless otherwise instructed by the Seller, the Trust shall not take action unless at least thirty (30) days before the taking of such action the Owner Trustee shall have notified the Seller: (a) the initiation of any claim or lawsuit by the Trust (other than an action to collect on the Trust Estate) and the settlement of any action, claim or lawsuit brought by or against the Trust (other than an action to collect on the Trust Estate); (b) the amendment of the Indenture by a supplemental indenture in circumstances where the consent of any Noteholder is required; (c) the amendment of the Indenture by a supplemental indenture in circumstances where the consent of any Noteholder is not required and such amendment materially adversely affects the interest of the Seller; (d) the amendment, change or modification of the Administration Agreement, except to cure any ambiguity or to amend or supplement any provision in a manner that would not materially adversely affect the interests of the Seller; or (e) the appointment pursuant to the Indenture of a replacement or successor Transfer Agent and Registrar or Indenture Trustee, or the consent to the assignment by the Transfer Agent and Registrar, Administrator or Indenture Trustee of its obligations under the Indenture. Section 4.2. Restrictions on Power. The Owner Trustee shall not be --------------------- required to take or refrain from taking any action if such action or inaction would be contrary to any obligation of the Trust or the Owner Trustee (as such or in its individual capacity) under any of the Transaction Documents or would be contrary to Section 2.3. ----------- (b) The Owner Trustee shall have no power to create, assume or incur indebtedness or other liabilities in the name of the Trust other than as contemplated by the Transaction Documents. ARTICLE V AUTHORITY AND DUTIES OF OWNER TRUSTEE Section 5.1. General Authority. Each of the Trust and the Owner Trustee ----------------- in the name and on behalf of the Trust shall have power and authority, and is hereby authorized and empowered, to execute and deliver the Transaction Documents to 8 which the Trust is to be a party and each certificate or other document attached as an exhibit to or contemplated by the Transaction Documents to which the Trust is to be a party, or any amendment thereto or other agreement, in each case, in such form as the Seller shall approve as evidenced conclusively by the Owner Trustee's execution thereof and the Seller's execution of the related documents. In addition to the foregoing, the Owner Trustee in the name and on behalf of the Trust shall also have power and authority and is hereby authorized and empowered, but shall not be obligated, to take all actions required of the Trust pursuant to the Transaction Documents. The Owner Trustee in the name and on behalf of the Trust shall also have power and authority and is hereby authorized and empowered from time to time to take such action as the Seller or the Administrator directs in writing with respect to the Transaction Documents. Section 5.2. General Duties. It shall be the duty of the Owner Trustee -------------- to discharge (or cause to be discharged) all of its responsibilities pursuant to the terms of this Agreement and the other Transaction Documents to which the Trust is a party and to administer the Trust in the interest of the Seller, subject to the Transaction Documents and in accordance with the provisions of this Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other Transaction Documents to the extent the Administrator has agreed in the Administration Agreement or another Transaction Document to perform any act or to discharge any duty of the Owner Trustee or the Trust under any Transaction Document, and the Owner Trustee shall not be personally liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. Section 5.3. Action Upon Instruction. ----------------------- (a) The Owner Trustee shall not be required to take any action hereunder or under any other Transaction Document if the Owner Trustee shall have reasonably determined, or shall have been advised by counsel, that such action is likely to result in personal liability on the part of the Owner Trustee or is contrary to the terms of any Transaction Document or is otherwise contrary to law. (b) Whenever the Owner Trustee is unable to decide between alternative courses of action permitted or required by the terms of any Transaction Document, the Owner Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to the Seller requesting instruction as to the course of action to be adopted, and to the extent the Owner Trustee acts or refrains from acting in good faith in accordance with any such instruction of the Seller received, the Owner Trustee shall not be personally liable on account of such action or inaction to any Person. If the Owner Trustee shall not have received appropriate instruction within ten (10) days of such notice (or within such shorter period of time as reasonably 9 may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action, not in violation of the Transaction Documents, as it shall deem to be in the best interest of the Seller, and shall have no personal liability to any Person for such action or inaction. (c) In the event that the Owner Trustee is unsure as to the application of any provision of any Transaction Document or any such provision is ambiguous as to its application, or is, or appears to be, in conflict with any other applicable provision, or in the event that this Agreement permits any determination by the Owner Trustee or is silent or is incomplete as to the course of action that the Owner Trustee is required to take with respect to a particular set of facts, the Owner Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Seller requesting instruction and, to the extent that the Owner Trustee acts or refrains from acting in good faith in accordance with any such instruction received, the Owner Trustee shall not be personally liable, on account of such action or inaction, to any Person. If the Owner Trustee shall not have received appropriate instruction within ten (10) days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action, not in violation of the Transaction Documents, as it shall deem to be in the best interests of the Seller, and shall have no personal liability to any Person for such action or inaction. Section 5.4. No Duties Except as Specified in this Agreement or in ----------------------------------------------------- Instructions. The Owner Trustee shall not have any duty or obligation to manage, - ------------ make any payment with respect to, register, record, sell, dispose of, or otherwise deal with the Trust or the Trust Estate, or to otherwise take or refrain from taking any action under, or in connection with, this Agreement or any document contemplated hereby to which the Trust is a party, except as expressly provided by the terms of this Agreement or in any document or written instruction received by the Owner Trustee pursuant to Section 5.3; and no ----------- implied duties or obligations shall be read into any Transaction Document against the Owner Trustee. The Owner Trustee shall have no responsibility for any filing or recording, including filing any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or lien granted to it or the Trust hereunder or to prepare or file any Commission filing for the Trust or to record any Transaction Document. The Owner Trustee in its individual capacity nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the Trust Estate that result from actions by, or claims against, the Owner Trustee in its individual capacity that are not related to the ownership or the administration of the Trust Estate or the transactions contemplated by the Transaction Documents. 10 Section 5.5. No Action Except under Specified Documents or Instructions. ---------------------------------------------------------- The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise deal with any part of the Trust Estate except (i) in accordance with the powers granted to and the authority conferred upon the Owner Trustee pursuant to this Agreement, (ii) in accordance with the Transaction Documents and (iii) in accordance with any document or instruction delivered to the Owner Trustee pursuant to Section 5.3. Section 5.6. Restrictions. The Owner Trustee shall not take any action ------------ (a) that, to the actual knowledge of a Responsible Officer of the Owner Trustee, would violate the purposes of the Trust set forth in Section 2.3 or (b) that, to ----------- the actual knowledge of a Responsible Officer of the Owner Trustee, would result in the Trust's becoming taxable as a corporation for federal income tax purposes. The Seller shall not direct the Owner Trustee to take action that would violate the provisions of this Section 5.6. ------------ Section 5.7. Tax Returns. In the event the Trust shall be required to ----------- file tax returns, the Issuer shall prepare or shall cause to be prepared such tax returns and shall provide such tax returns to the Owner Trustee for signature at least five (5) days before such tax returns are due to be filed. The Issuer, in accordance with the terms of each Indenture Supplement, shall also prepare or shall cause to be prepared all tax information required by law to be distributed to Noteholders and shall deliver such information to the Owner Trustee at least five (5) days prior to the date it is required by law to be distributed to Noteholders. The Owner Trustee, upon request, will furnish the Issuer with all such information known to the Owner Trustee as may be reasonably required in connection with the preparation of all tax returns of the Trust, and shall, upon request, execute such returns. In no event shall the Owner Trustee or the Indenture Trustee be liable for any liabilities, costs or expenses of the Trust or any Noteholder arising under any tax law, including federal, state or local income or excise taxes or any other tax imposed on or measured by income (or any interest or penalty with respect thereto arising from a failure to comply therewith). ARTICLE VI CONCERNING THE OWNER TRUSTEE Section 6.1. Acceptance of Trusts and Duties. The Owner Trustee accepts ------------------------------- the trusts hereby created and agrees to perform its duties hereunder with respect to such trusts, but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all moneys actually received by it constituting part of the Trust Estate upon the terms of the Transaction Documents. The Owner Trustee shall not be personally answerable or accountable under any Transaction Document under any circumstances, except (i) for its own willful misconduct, bad faith or gross negligence in the performance of its duties or the omission to perform any such 11 duties or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 6.3 expressly made by the Owner Trustee in its individual ----------- capacity. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence): (a) the Owner Trustee shall not be personally liable for any error of judgment made in good faith by the Owner Trustee; (b) the Owner Trustee shall not be personally liable with respect to any action taken or omitted to be taken by it in accordance with the instructions of the Administrator or the Seller; (c) the Owner Trustee shall not be personally liable for any error of judgment made in good faith by the Holder of the Supplemental Certificate; (d) no provision of this Agreement or any other Transaction Document shall require the Owner Trustee to expend or risk funds or otherwise incur any personal financial liability in the exercise or performance of any of its duties, rights or powers hereunder or under any other Transaction Document, if the Owner Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it (as such and in its individual capacity); (e) under no circumstances shall the Owner Trustee be personally liable for indebtedness evidenced by or arising under any of the Transaction Documents, including the principal of and interest on the Notes; (f) the Owner Trustee shall not be personally responsible for or in respect of the validity or sufficiency of this Agreement, the due execution hereof by the Seller or the form, character, genuineness, sufficiency, value or validity of any of the Trust Estate, the Transaction Documents, the Notes or the Seller Interest, and the Owner Trustee shall in no event assume or incur any personal liability, duty, or obligation to any Noteholder, the Seller, any holder of the Seller Interest or any other Person, other than as expressly provided for herein or expressly agreed to in the other Transaction Documents; (g) the Owner Trustee shall not be personally liable for the default or misconduct of the Seller, the Servicer, the Administrator or the Indenture Trustee or any other Person under any of the Transaction Documents or otherwise, and the Owner Trustee shall have no obligation or personal liability to perform the obligations of the Trust under the Transaction Documents, including those that are required to be performed by the Administrator under the Administration Agreement, 12 the Indenture Trustee under the Indenture or the Servicer under the Transfer and Servicing Agreement; (h) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to any Transaction Document, at the request, order or direction of the Seller, unless the Seller has offered to the Owner Trustee (as such and in its individual capacity) security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee to perform any discretionary act enumerated in any Transaction Document shall not be construed as a duty, and the Owner Trustee shall not be answerable or personally liable to any Person for any such act other than liability to the Trust and the beneficial owners of the Trust for its own gross negligence, bad faith or willful misconduct in the performance of any such act or the omission to perform any such act; and (i) Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be required to take any action in any jurisdiction other than in the State of New York or Illinois if the taking of such action will (i) require the registration with, licensing by or the taking of any other similar action in respect of, any State or other governmental authority or agency of any jurisdiction other than the State of New York or Illinois by or with respect to the Owner Trustee (as such or in its individual capacity); (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivisions thereof in existence on the date hereof other than the State of New York or Illinois becoming payable by the Owner Trustee (as such or in its individual capacity); or (iii) subject the Owner Trustee (as such or in its individual capacity) to personal jurisdiction in any jurisdiction other than the State of New York or Illinois for causes of action arising from acts unrelated to the consummation of the transactions by the Owner Trustee contemplated hereby. The Owner Trustee shall be entitled to obtain advice of counsel (which advice shall be an expense of the Seller) to determine whether any action required to be taken pursuant to the Agreement results in the consequences described in clauses (i), (ii) and (iii) of the preceding sentence. In the event that said counsel advises the Owner Trustee that such action will result in such consequences, the Seller shall appoint an additional trustee pursuant to Section 9.5 to proceed with such action. Notwithstanding anything to ----------- the contrary in this Agreement or any other Transaction Document, any payment by the Seller pursuant to this Section 6.1(i) shall only be made to the extent the -------------- Seller has funds available for such purpose after amounts payable to holders of the Notes have been paid in full. Each party hereto agrees that the failure to make such payment shall not give rise to any claim against the Seller. 13 Section 6.2. Furnishing of Documents. The Owner Trustee shall furnish to ----------------------- the Seller and the Indenture Trustee, promptly upon written request therefor, duplicates or copies of all reports, notices, requests, demands, certificates, financial statements and any other instruments furnished to the Owner Trustee under the Transaction Documents. Section 6.3. Representations and Warranties. The Owner Trustee (as such ------------------------------ and in its individual capacity) hereby represents and warrants to the Seller that: (a) It is a New York banking corporation duly organized and validly existing in good standing under the laws of the State of New York. It is qualified as a foreign fiduciary under the laws of the State of Illinois. It has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement. (b) It has taken all corporate action necessary to authorize the execution and delivery by it of this Agreement, and this Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver this Agreement on its behalf. (c) Neither the execution nor the delivery by it of this Agreement, nor the consummation by it of the transactions contemplated hereby nor compliance by it with any of the terms or provisions hereof will contravene any federal, New York or Illinois law, governmental rule or regulation governing the banking or trust powers of the Owner Trustee (as such and in its individual capacity) or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound. Section 6.4. Reliance; Advice of Counsel. --------------------------- (a) The Owner Trustee shall incur no personal liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond, or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties. The Owner Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any Person as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the method of the determination of which is not specifically prescribed herein, the Owner Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the treasurer or other authorized officer of an appropriate Person, as to such fact or matter, and such certificate shall 14 constitute full protection to the Owner Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon. (b) In the exercise or administration of the trusts hereunder and in the performance of its duties and obligations under this Agreement or the other Transaction Documents, the Owner Trustee (i) may act directly or through its agents or attorneys pursuant to agreements entered into with any of them, and the Owner Trustee shall not be personally liable for the conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Owner Trustee with reasonable care, and (ii) may consult with counsel, accountants and other skilled Persons to be selected with reasonable care and employed by it. The Owner Trustee shall not be personally liable for anything done, suffered or omitted in good faith by it in accordance with the written opinion or written advice of any such counsel, accountants or other such Persons. Section 6.5. Not Acting in Individual Capacity. Except as expressly --------------------------------- provided in this Article VI, in accepting the trusts hereby created, Bankers ---------- Trust Company acts solely as Owner Trustee hereunder and not in its individual capacity, and all Persons having any claim against the Owner Trustee by reason of the transactions contemplated by any Transaction Document shall look only to the Trust Estate for payment or satisfaction thereof. Section 6.6. Owner Trustee Not Liable for Notes or Receivables. The ------------------------------------------------- statements contained herein and in the Notes and other Transaction Documents (other than the representations and warranties in Section 6.3) shall be taken as ----------- the statements of the Seller, and the Owner Trustee assumes no responsibility for the correctness thereof. The Owner Trustee makes no representations as to the validity or sufficiency of this Agreement or any other Transaction Document, the Notes or related documents. The Owner Trustee shall at no time have any responsibility or personal liability for or with respect to the legality, validity and enforceability of the Receivables or the perfection and priority of any security interest in the Receivables or the maintenance of any such perfection and priority, or for or with respect to the sufficiency of the Trust Estate or its ability to generate the payments to be distributed to the Noteholders under the Indenture, including the existence, condition and ownership of the Receivables; the existence and contents of the Receivables on any computer or other record thereof; the validity of the assignment of the Receivables to the Trust or of any intervening assignment; the completeness of the Receivables; the performance or enforcement of the Receivables; the compliance by the Seller with any warranty or representation made under any Transaction Document or in any related document or the accuracy of any such warranty or representation or any action of the Administrator, the Servicer or the Indenture Trustee taken in the name of the Owner Trustee. 15 Section 6.7. Owner Trustee May Own Notes. The Owner Trustee in its --------------------------- individual or any other capacity may become the owner or pledgee of Notes and may deal with the Seller, the Administrator, the Servicer and the Indenture Trustee in banking transactions with the same rights as it would have if it were not Owner Trustee. ARTICLE VII COMPENSATION OF OWNER TRUSTEE Section 7.1. Owner Trustee's Fees and Expenses. The Owner Trustee (in its --------------------------------- individual capacity) shall receive as compensation for its services hereunder such fees as have been separately agreed upon before the date hereof between the Seller and the Owner Trustee (in its individual capacity) (which compensation shall not be limited by any law on compensation of a trustee of an express trust), and the Owner Trustee (in its individual capacity) shall be entitled to be reimbursed by the Seller for its other reasonable expenses hereunder, including the reasonable compensation, expenses and disbursements of such agents, representatives, experts and counsel as the Owner Trustee may employ in connection with the exercise and performance of its rights and its duties hereunder and under the Transaction Documents; provided, however, that the Owner -------- ------- Trustee shall have no recourse to the assets pledged under the Indenture with respect to any payments pursuant to this Section 7.1 and the Owner Trustee's ----------- right to enforce such obligation shall be subject to the provisions of Section ------- 10.8. - ---- Section 7.2. Indemnification. To the fullest extent permitted by law, the --------------- Seller shall indemnify, defend and hold harmless the Owner Trustee (as such and in its individual capacity) and its successors, assigns, directors, officers, agents, employees and servants (collectively, the "Indemnified Parties") from ------------------- and against, any and all liabilities, obligations, losses, damages, taxes, claims, actions and suits, and any and all reasonable costs, expenses and disbursements (including reasonable legal fees and expenses) of any kind and nature whatsoever (collectively, "Expenses") which may at any time be imposed -------- on, incurred by, or asserted against the Owner Trustee or any Indemnified Party in any way relating to or arising out of the Transaction Documents, the Trust Estate, the acceptance and administration of the Trust Estate or any action or inaction of the Owner Trustee; provided that the Seller shall not be liable for -------- or required to indemnify any Indemnified Party from and against Expenses arising or resulting from any of the matters described in the third sentence of Section ------- 6.1 or Expenses for which indemnification is actually received under other - --- Transaction Documents; provided further that the Seller shall not be liable for or required to indemnify an Indemnified Party from and against expenses arising or resulting from (i) the Indemnified Party's own willful misconduct, bad faith or gross negligence, or (ii) the inaccuracy of any representation or warranty 16 contained in Section 6.3. No Indemnified Party shall have recourse to the assets ------------ pledged under the Indenture with respect to any Expenses payable by the Seller pursuant to this Section 7.2. An Indemnified Party's right to enforce such ------------ obligation shall be subject to the provisions of Section 10.8. The indemnities ------------- contained in this Section 7.2 shall survive the resignation and termination of ----------- the Owner Trustee or the termination of this Agreement. Section 7.3. Payments to the Owner Trustee. Any amounts paid to an ----------------------------- Indemnified Party pursuant to this Article VII shall not be construed to be a ----------- part of the Trust Estate. Section 7.4. Limited Recourse. Notwithstanding anything to the contrary in ---------------- this Agreement or any other Transaction Document, any payment to be made by the Seller pursuant to this Article VII shall only be made to the extent the Seller has received such funds from FCNB under the Receivables Purchase Agreement and, if Seller has not received such funds, to the extent the Seller has funds available for such purpose after amounts payable to Securityholders (as defined in the Receivables Purchase Agreement) have been paid in full. The Owner Trustee and each Indemnified Party agrees that the failure to make such payment beyond the extent available shall not give rise to any claim against the Seller. ARTICLE VIII TERMINATION OF TRUST AGREEMENT Section 8.1. Termination of Trust Agreement. ------------------------------ (a) The Trust shall dissolve upon the date specified by the Seller (the "Trust Termination Date", written notice of which shall be provided to the Owner ---------------------- Trustee), provided that the Trust Termination Date shall not be earlier than the -------- day on which the rights of all Series of Notes to receive payments from the Trust have terminated, and shall in no event be later than the Scheduled Trust Termination Date. After satisfaction of liabilities of the Trust as provided by applicable law, any money or other property held as part of the Trust Estate following such distribution shall be distributed to the Seller. The bankruptcy, liquidation, dissolution, termination, death or incapacity of the Seller shall not (x) operate to terminate this Agreement or annul, dissolve or terminate the Trust, or (y) entitle the Seller's legal representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or winding up of all or any part of the Trust or Trust Estate or (z) otherwise affect the rights, obligations and liabilities of the parties hereto. (b) Except as provided in Section 8.1(a), neither the Seller nor any holder -------------- of the Seller Interest shall be entitled to revoke, dissolve or terminate the Trust. 17 ARTICLE IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES Section 9.1. Eligibility Requirements for Owner Trustee. The Owner Trustee ------------------------------------------ shall at all times be a Person within the State of Illinois, or authorized to act as a foreign fiduciary within the State of Illinois; authorized to exercise trust powers; having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal or state authorities; and having (or having a parent which has) a rating of at least Baa3 by Moody's, at least BBB- by Standard & Poor's and, if rated by Fitch, at least BBB- by Fitch, or otherwise satisfactory to each Rating Agency. If such Person shall publish reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purpose of this Section 9.1, the combined capital and surplus of such Person shall be ----------- deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Owner Trustee shall cease to be eligible in accordance with the provisions of this Section 9.1, the ----------- Owner Trustee shall resign immediately in the manner and with the effect specified in Section 9.2. ----------- Section 9.2. Resignation or Removal of Owner Trustee. The Owner Trustee may --------------------------------------- at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the Seller; provided, however, that such resignation -------- ------- and discharge shall only be effective upon the appointment of a successor Owner Trustee. Upon receiving such notice of resignation, the Seller shall promptly appoint a successor Owner Trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the resigning Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner Trustee shall have been so appointed and have accepted appointment within thirty (30) days after the giving of such notice of resignation, the resigning Owner Trustee at the expense of the Seller may petition any court of competent jurisdiction for the appointment of a successor Owner Trustee. If at any time the Owner Trustee shall cease to be eligible in accordance with the provisions of Section 9.1 and shall fail to resign after written ----------- request therefor by the Seller, or if at any time the Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Owner Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Seller may, but shall not be required to, remove the Owner Trustee. If the Seller shall remove the Owner Trustee under the authority 18 of the immediately preceding sentence, the Seller shall promptly (i) appoint a successor Owner Trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the outgoing Owner Trustee so removed and one copy to the successor Owner Trustee and (ii) pay all amounts owed to the outgoing Owner Trustee in its individual capacity. Any resignation or removal of the Owner Trustee and appointment of a successor Owner Trustee pursuant to any of the provisions of this Section 9.2 ----------- shall not become effective until acceptance of appointment by the successor Owner Trustee pursuant to Section 9.3 and, in the case of removal, payment of ----------- all fees and expenses owed to the outgoing Owner Trustee (as such or in its individual capacity). The Seller shall provide notice of such resignation or removal of the Owner Trustee to each Rating Agency. Section 9.3. Successor Owner Trustee. Any successor Owner Trustee appointed ----------------------- pursuant to Section 9.2 shall execute, acknowledge and deliver to the Seller and ----------- to its predecessor Owner Trustee an instrument accepting such appointment under this Agreement, and thereupon the resignation or removal of the predecessor Owner Trustee shall become effective and such successor Owner Trustee, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties, and obligations of its predecessor under this Agreement, with like effect as if originally named as Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees and expenses deliver to the successor Owner Trustee all documents and statements and monies held by it under this Agreement; and the Seller and the predecessor Owner Trustee shall execute and deliver such instruments and do such other things as may reasonably be required for fully and certainly vesting and confirming in the successor Owner Trustee all such rights, powers, duties, and obligations. No successor Owner Trustee shall accept appointment as provided in this Section 9.3 unless at the time of such acceptance such successor Owner Trustee - ----------- shall be eligible pursuant to Section 9.1. ----------- Upon acceptance of appointment by a successor Owner Trustee pursuant to this Section 9.3, the Seller shall mail notice of such acceptance of appointment ----------- including the name of such successor Owner Trustee to the Seller, the Indenture Trustee, the Noteholders and each Rating Agency. If the Seller shall fail to mail such notice within ten (10) days after acceptance of appointment by the successor Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed at the expense of the Seller. Section 9.4. Merger or Consolidation of Owner Trustee. Notwithstanding ---------------------------------------- anything herein to the contrary, any Person into which the Owner Trustee may be 19 merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Owner Trustee shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Owner Trustee, shall be the successor of the Owner Trustee hereunder (provided that such Person shall meet the -------- eligibility requirements set forth in Section 9.1), without the execution or ----------- filing of any instrument or any further act on the part of any of the parties hereto; provided further that the Owner Trustee shall mail notice of such merger -------- ------- or consolidation to each Rating Agency and each Series Enhancer. Section 9.5. Appointment of Co-Trustee or Separate Trustee. Notwithstanding --------------------------------------------- any other provisions of this Agreement, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Trust Estate may at the time be located, the Seller and the Owner Trustee acting jointly shall have the power and shall execute and deliver all instruments to appoint one or more Persons approved by each of the Seller and the Owner Trustee to act as co-trustee, jointly with the Owner Trustee, or separate trustee or separate trustees, of all or any part of the Trust Estate, and to vest in such Person, in such capacity, such title to the Trust, or any part thereof, and, subject to the other provisions of this Section 9.5, such powers, duties, obligations, rights ----------- and trusts as the Seller and the Owner Trustee may consider necessary or desirable. If the Seller shall not have joined in such appointment within fifteen (15) days after the receipt by it of a request so to do, the Owner Trustee alone shall have the power to make such appointment. no co-trustee or separate trustee under this Agreement shall be required to meet the terms of eligibility as a successor trustee pursuant to Section 9.1 and no notice of the ----------- appointment of any co-trustee or separate trustee shall be required pursuant to Section 9.3. - ----------- Each separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions: (i) all rights, powers, duties, and obligations conferred or imposed upon the Owner Trustee shall be conferred upon and exercised or performed by the Owner Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Owner Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed, the Owner Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties, and obligations (including the holding of title to the Trust or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Owner Trustee; 20 (ii) no trustee under this Agreement shall be personally liable by reason of any act or omission of any other trustee under this Agreement; and (iii) the Seller and the Owner Trustee acting jointly may at any time accept the resignation of or remove any separate trustee or co-trustee. Any notice, request or other writing given to the Owner Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article IX. Each separate trustee and co-trustee, upon its acceptance of ---------- the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Owner Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Owner Trustee. Each such instrument shall be filed with the Owner Trustee and a copy thereof given to the Seller. Any separate trustee or co-trustee may at any time appoint the Owner Trustee, its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Owner Trustee, to the extent permitted by law, without the appointment of a new or successor trustee. ARTICLE X MISCELLANEOUS Section 10.1. Supplements and Amendments. This Agreement may be amended -------------------------- from time to time, by a written amendment duly executed and delivered by the Seller and the Owner Trustee, without the consent of any of the Noteholders, to cure any ambiguity, to correct or supplement any provisions in this Agreement or to add any other provisions with respect to matters or questions raised under this Agreement which shall not be inconsistent with the provisions of this Agreement; provided, however, that such amendment will not, as evidenced by an -------- ------- Officer's Certificate of the Seller addressed and delivered to the Owner Trustee and the Indenture Trustee, materially and adversely affect the interest of any Noteholder. In addition, this Agreement may be amended from time to time, by a written amendment duly executed and delivered by the Seller and the Owner Trustee, without the consent of any of the Noteholders, and upon satisfaction of the Rating 21 Agency Condition, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or modifying in any manner the rights of the Noteholders; provided, however, that such amendment -------- ------- will not (i) as evidenced by an Officer's Certificate of the Seller addressed and delivered to the Owner Trustee and the Indenture Trustee, materially and adversely affect the interest of any Noteholder and (ii) as evidenced by an Opinion of Counsel addressed and delivered to the Owner Trustee and the Indenture Trustee, cause the Trust to be classified as an association (or a publicly traded partnership) taxable as a corporation for federal income tax purposes; provided, further, that Section 2.3 of this Agreement may be amended -------- ------- ----------- only with the consent of the Holders of Notes evidencing not less than a majority of the Outstanding Amount of the Notes. Additionally, notwithstanding the preceding sentence, this Agreement will be amended by the Seller and the Owner Trustee without the consent of the Indenture Trustee or any of the Noteholders to add, modify or eliminate such provisions as may be necessary or advisable in order to enable all or a portion of the Trust (i) to qualify as, and to permit an election to be made to cause the Trust to be treated as, a "financial asset securitization investment trust" as described in the provisions of Section 860L of the Code, and (ii) to avoid the imposition of state or local income or franchise taxes imposed on the Trust's property or its income; provided, however, that (i) the Seller delivers to the Indenture Trustee and the - -------- ------- Owner Trustee an Officer's Certificate to the effect that the proposed amendments meet the requirements set forth in this subsection, (ii) the Rating Agency Condition shall have been satisfied with respect to such amendment and (iii) such amendment does not affect the rights, benefits, protections, privileges, immunities, duties or obligations of the Owner Trustee hereunder. The amendments which the Seller may make without the consent of Noteholders pursuant to the preceding sentence may include the addition of a Seller of Receivables. This Agreement may also be amended from time to time by a written amendment duly executed and delivered by the Seller and the Owner Trustee, with the consent of the Indenture Trustee and the Holders of Notes evidencing not less than 66 2/3% of the Outstanding Amount of the Notes, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders; provided, however, that without the consent of all Noteholders, no such - -------- ------- amendment shall (a) increase or reduce in any manner the amount of, or accelerate or delay the timing of distributions that are required to be made for the benefit of the Noteholders or (b) reduce the aforesaid percentage of the Outstanding Amount of the Notes, the Holders of which are required to consent to any such amendment; provided further, that such amendment will not, (i) as -------- ------- evidenced by an Officer's Certificate of the Seller addressed and delivered to the Owner Trustee and the Indenture Trustee, cause the Trust to fail to be treated as a "qualified special purpose entity" as defined in SFAS Statement No. 125 or 140 and (ii) as evidenced by an Opinion of Counsel addressed 22 and delivered to the Owner Trustee and the Indenture Trustee, cause the Trust to be classified as an association (or a publicly traded partnership) taxable as a corporation for federal income tax purposes. Promptly after the execution of any such amendment or consent, the Seller shall furnish written notification of the substance of such amendment or consent to the Indenture Trustee and each Rating Agency. It shall not be necessary for the consent of the Noteholders pursuant to this Section 10.1 to approve the particular form of any proposed amendment or ------------ consent, but it shall be sufficient if such consent shall approve the substance thereof The Owner Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Officer's Certificate of the Seller to the effect that the conditions to amendment have been satisfied. The Owner Trustee may, but shall not be obligated to, enter into, and unless it has consented thereto in writing shall not be bound by, any amendment which affects the Owner Trustee's own rights, duties, benefits, protections, privileges or immunities (as such or in its individual capacity) under this Agreement or otherwise. Section 10.2. No Legal Title to Trust Estate in Seller. The Seller shall ---------------------------------------- not have legal title to any part of the Trust Estate. No transfer, by operation of law or otherwise, of any right, title, and interest of the Seller to and in its undivided beneficial interest in the Trust Estate shall operate to terminate this Agreement or annul, dissolve or terminate the Trust or entitle any transferee to an accounting or to the transfer to it of legal title to any part of the Trust Estate. Section 10.3. Limitations on Rights of Others. The provisions of this ------------------------------- Agreement are solely for the benefit of the Owner Trustee (as such or in its individual capacity), the other Indemnified Parties, the Seller, and, to the extent expressly provided herein, the Indenture Trustee and the Noteholders, and nothing in this Agreement, whether express or implied, shall be construed to give to any other Person any legal or equitable right, remedy or claim in the Trust Estate or under or in respect of this Agreement or any covenants, conditions or provisions contained herein. Section 10.4. Notices. Unless otherwise expressly specified or permitted by ------- the terms hereof, all notices and other communications shall be in writing and shall be deemed given upon receipt by the intended recipient or three (3) Business Days after mailing if mailed by certified mail, postage prepaid (except that notice to the Owner Trustee, the Seller or Indenture Trustee shall be deemed given only upon actual receipt by the Owner Trustee, the Seller or Indenture Trustee), if to the Owner 23 Trustee, addressed to the Corporate Trust Office; if to the Indenture Trustee, addressed to The Bank of New York, 2 North LaSalle Street, Suite 1020, Chicago, Illinois 60602; if to the Seller, addressed to First Consumers Credit Corporation, 400 West 9/th/ Street, Suite 302D, Wilmington Delaware, 19801; or, as to each party, at such other address as shall be designated by such party in a written notice to each other party. Section 10.5. Severability. Any provision of this Agreement that is ------------ 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 provision in any other jurisdiction. Section 10.6. Separate Counterparts. This Agreement may be executed by the --------------------- parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. Section 10.7. Successors and Assigns. All covenants and agreements ---------------------- contained herein shall be binding upon, and inure to the benefit of, the Seller and its permitted assignees and the Owner Trustee (as such or in its individual capacity) and its successors, all as herein provided. Any request, notice, direction, consent, waiver or other instrument or action by the Seller shall bind the successors and assigns of the Seller. Section 10.8. Non-petition Covenants. Notwithstanding any prior termination ---------------------- of the Trust or this Agreement, Bankers Trust Company, individually or in its capacity as Owner Trustee, shall not at any time with respect to the Trust, First Consumers Master Trust or the Seller, acquiesce, petition or otherwise invoke or cause the Trust, First Consumers Master Trust or the Seller to invoke the process of any court or governmental authority for the purpose of commencing or sustaining a case against the Trust, First Consumers Master Trust or the Seller under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, conservator, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Trust, First Consumers Master Trust or the Seller or any substantial part of their respective properties, or ordering the winding up or liquidation of the affairs of the Trust, First Consumers Master Trust or the Seller; provided, however, that this Section 10.8 -------- ------- ------------ shall not operate to preclude any remedy described in Article V of the --------- Indenture. Notwithstanding any prior termination of the Trust or this Agreement, the Seller shall not at any time with respect to the Trust or First Consumers Master Trust, 24 acquiesce, petition or otherwise invoke or cause the Trust or First Consumers Master Trust to invoke the process of any court or governmental authority for the purpose of commencing or sustaining a case against the Trust or First Consumers Master Trust under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, conservator, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Trust or First Consumers Master Trust or any substantial part of their respective properties, or ordering the winding up or liquidation of the affairs of the Trust or First Consumers Master Trust; provided, however, that this Section 10.8 shall not -------- ------- ------------ operate to preclude any remedy described in Article V of the Indenture. --------- Section 10.9. No Recourse. Each Person holding or owning the Seller ----------- Interest (or any interest therein), by accepting the Seller Interest (or its interest therein), acknowledges that the Seller Interest does not represent an interest in or obligation of the Servicer, the Owner Trustee (as such or in its individual capacity), the Indenture Trustee or any Affiliate thereof (other than the Trust), and no recourse may be had against such parties or their assets, or against the assets pledged under the Indenture, except as expressly provided in the Transaction Documents. Section 10.10. Headings. The headings of the various Articles and Sections -------- herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof. Section 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ------------- ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. Section 10.12. Integration of Documents. This Agreement constitutes the ------------------------ entire agreement of the parties hereto and thereto with respect to the subject matter hereof and supersedes all prior agreements relating to the subject matter hereof. Section 10.13. Limited Recourse. Notwithstanding anything to the contrary ---------------- in this Agreement or any other Transaction Document, with respect to provisions hereof in which the Seller has agreed that certain actions will be taken at the Seller's expense, payment of any such expense shall only be made to the extent the Seller has funds available for such purpose after amounts payable to Securityholders (as defined in the Receivables Purchase Agreement) have been paid in full. Each party hereto agrees that the failure to make such payments beyond the extent available shall not give rise to any claim against the Seller. 25 [Signature Page to Follow] 26 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers hereunto duly authorized, as of the day and year first above written. BANKERS TRUST COMPANY, as Owner Trustee By: /s/ Eileen M. Hughes -------------------- Name: Eileen M. Hughes Title: Vice President FIRST CONSUMERS CREDIT CORPORATION, as Seller By: /s/ John R. Steele ------------------ Name: John R. Steele Title: Treasurer First Consumers Credit Card Master Note Trust 27 Trust Agreement Signature Page 28 EX-4.4 6 dex44.txt ADMINISTRATION AGREEMENT, DATED 12/31/01 Exhibit 4.4 ----------- ADMINISTRATION AGREEMENT between FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST Issuer, and FIRST CONSUMERS NATIONAL BANK Administrator Dated as of March 1, 2001, amended and restated as of December 31, 2001 TABLE OF CONTENTS 1. Duties of Administrator............................................... 2 2. Records............................................................... 6 3. Compensation.......................................................... 6 4. Additional Information to be Furnished to Issuer...................... 7 5. Independence of Administrator......................................... 7 6. No Joint Venture...................................................... 7 7. Other Activities of Administrator..................................... 7 8. Term of Agreement; Resignation and Removal of Administrator........... 7 9. Action upon Termination, Resignation or Removal....................... 8 10. Notices............................................................... 8 11. Amendments............................................................ 9 12. Successors and Assigns................................................ 10 13. Governing Law......................................................... 10 14. Headings.............................................................. 10 15. Counterparts.......................................................... 10 16. Severability ......................................................... 10 17. Not Applicable to FCNB in Other Capacities............................ 10 18. Limitation of Liability of Owner Trustee.............................. 10 19. Third-Party Beneficiary............................................... 11 20. Nonpetition Covenants................................................. 11 21. Successor Administrator............................................... 11
i ADMINISTRATION AGREEMENT, dated as of March 1, 2001, and amended and restated as of December 31, 2001 (the "Administration Agreement"), between FIRST ------------------------ CONSUMERS CREDIT CARD MASTER NOTE TRUST, a common law trust organized and existing under the laws of the State of Illinois (the "Issuer"), and FIRST ------ CONSUMERS NATIONAL BANK, a national banking association, as administrator (the "Administrator"). ------------- W I T N E S S E T H: WHEREAS, the Issuer has entered into a Master Indenture, dated as of March 1, 2001, and amended and restated as of December 31, 2001 (the "Indenture"), --------- between the Issuer and The Bank of New York, as indenture trustee (the "Indenture Trustee"), to provide for the issuance of its asset backed notes (the ----------------- "Notes") from time to time pursuant to one or more indenture supplements. ----- Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in Annex A to the Indenture; ------- WHEREAS, the Issuer has entered into certain agreements in connection with the issuance of the Notes, the issuance of the beneficial ownership interest of the Issuer and transactions related thereto, including (i) the Transfer and Servicing Agreement, (ii) the Trust Agreement, and (iii) the Indenture (the Transfer and Servicing Agreement, the Trust Agreement, the Indenture and all Indenture Supplements being hereinafter referred to collectively as the "Related ------- Agreements"); - ---------- WHEREAS, pursuant to the Related Agreements, the Issuer and the Owner Trustee are required to perform certain duties in connection with (a) the Notes and the Collateral and (b) the beneficial ownership interest in the Issuer; WHEREAS, the Issuer and the Owner Trustee desire to have the Administrator perform certain of the duties of the Issuer and the Owner Trustee referred to in the preceding clause, and to provide such additional services consistent with the terms of this Agreement and the Related Agreements as the Issuer and the Owner Trustee may from time to time request; and WHEREAS, the Administrator has the capacity to provide the services required hereby and is willing to perform such services for the Issuer and the Owner Trustee on the terms set forth herein; NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: 1. Duties of Administrator. ----------------------- (a) Duties with Respect to the Related Agreements. The Administrator shall --------------------------------------------- consult with the Owner Trustee regarding the duties of the Issuer and the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer's or the Owner Trustee's duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, orders, certificates and opinions as it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to any Related Agreement. In furtherance of the foregoing, the Administrator shall take all appropriate action that it is the duty of the Issuer or the Owner Trustee to take pursuant to the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture): (i) the preparation of or obtaining of the documents and instruments required for execution, authentication and delivery of the Notes (whether upon initial issuance, transfer or exchange, or otherwise), if any, and delivery of the same to the Indenture Trustee (if applicable) (Sections -------- 2.3, 2.5, 2.6, 2.12(c) or 2.15); --- --- --- ------ ---- (ii) the duty to cause the Note Register to be kept, to appoint a successor Transfer Agent and Registrar, if necessary, and to give the Indenture Trustee notice of any appointment of a new Transfer Agent and Registrar and the location, or change in location, of the Note Register (Section 2.5); ----------- (iii) the furnishing of the Indenture Trustee, the Servicer, any Noteholder or the Paying Agent with the names and addresses of Noteholders after receipt of a written request therefor from the Indenture Trustee, the Servicer, any Noteholder or the Paying Agent, respectively, or as otherwise specified in the Indenture (Sections 2.9(a) and 7.1); --------------- --- (iv) the preparation, obtaining or filing of the instruments, opinions and certificates and other documents required for the release of collateral (Section 8.8); ----------- (v) the duty to cause the Issuer to maintain an office or agency within New York (and as otherwise set forth in an Indenture Supplement) and to give the Indenture Trustee and the Noteholders notice of the location, or change in location, of such office or agency (Section 3.2); ----------- (vi) the duty to direct the Indenture Trustee to deposit with any Paying Agent the sums specified in the Indenture and the preparation of an Issuer Order directing the investment of such funds in Permitted Investments (Section 3.3); ----------- 2 (vii) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3); ----------- (viii) the direction to Paying Agents to pay to the Indenture Trustee all sums held in trust by such Paying Agents (Section 3.3); ----------- (ix) the duty to cause the Issuer to keep in full force its existence, rights and franchises as an Illinois trust and the obtaining and preservation of the Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other related instrument and agreement (Section 3.4); ----------- (x) the preparation of all supplements, amendments, financing statements, continuation statements, if any, instruments of further assurance and other instruments necessary to protect, maintain and enforce the Collateral (Section 3.5); ----------- (xi) the obtaining of the Opinion of Counsel on each Closing Date and the annual delivery of Opinions of Counsel as to the Collateral, and the annual delivery of the Officer's Certificate (Sections 3.6 and 3.9); ------------ --- (xii) the identification to the Indenture Trustee in an Officer's Certificate of a Person with whom the Issuer has contracted to assist it in performing its duties under the Indenture (Section 3.7(b)); -------------- (xiii) causing the delivery of notice by the Indenture Trustee to the Rating Agencies of the occurrence of any Servicer Default of which the Issuer has knowledge and the action, if any, being taken in connection with such default (Section 3.7(d)); -------------- (xiv) the delivery to the Indenture Trustee, within 120 days after the end of each fiscal year of the Issuer of an Officer's Certificate with respect to various matters relating to compliance with the Indenture (Section 3.9); ----------- (xv) the preparation and obtaining of documents, certificates, opinions and instruments required in connection with the consolidation or merger by the Issuer with or into any other Person or the sale of the Issuer's assets substantially as an entirety to any Person (Section 3.10); ------------ (xvi) the delivery of notice to the Indenture Trustee and the Rating Agencies of (1) each Event of Default, (2) each default by the Servicer or Seller under the Transfer and Servicing Agreement and (3) each default by the RPA Seller under the Receivables Purchase Agreement (Section 3.19); ------------ 3 (xvii) the monitoring of the Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.1); ----------- (xviii) the compliance with any directive of the Indenture Trustee with respect to the sale of the Collateral if an Event of Default shall have occurred and be continuing and the Notes have been accelerated (Section 5.5); ----------- (xix) the preparation of an Officer's Certificate to be delivered to the Indenture Trustee and the delivery of such Officer's Certificate to the Noteholders (Section 6.3(b)); -------------- (xx) the removal of the Indenture Trustee, if necessary and in compliance with the Indenture, and the appointment of a successor (Section ------- 6.8); --- (xxi) the preparation of various reports to be filed with the Indenture Trustee and the Commission, as applicable (Section 7.3); ----------- (xxii) notifying the Indenture Trustee if and when the Notes are listed on any stock exchange (Section 7.4); ----------- (xxiii) the preparation of an Issuer Order and Officer's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Collateral (Section 8.9); ----------- (xxiv) the preparation of Issuer Orders, agreements, certificates, instruments, consents and other documents and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures (Sections -------- 3.7(f), 10.1, 10.2 and 10.3); ------ ---- ---- ---- (xv) the execution of new Notes conforming to any supplemental indenture (Section 10.6); ------------ (xvi) the preparation of all Officers' Certificates, Opinions of Counsel and, if necessary, Independent Certificates with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Section 12.1(a)); --------------- (xxvii) the preparation and delivery of Officers' Certificates and the obtaining of Independent Certificates, if necessary, in connection with the deposit of any Collateral or other property or securities with the Indenture Trustee that is to be made the basis for the release of property from the lien of the Indenture (Section 12.1(b)); --------------- (xxviii) the preparation and delivery to Noteholders and the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 12.6); and ------------ 4 (xxix) compliance with the provisions of the Transfer and Servicing Agreement, Indenture Supplement and Trust Agreement applicable to the Issuer. (b) Additional Duties. ----------------- (i) In addition to the duties of the Administrator set forth above, but subject to Sections 1(c)(ii) and 5, the Administrator shall perform all ----------------- - duties and obligations of the Issuer under the Related Agreements, and shall perform such calculations and shall prepare for execution by the Issuer and shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements and shall administer the Trust in the interest of the holder of the Seller Interest, and at the request of the Issuer shall take all appropriate action that it is the duty of the Issuer or the Owner Trustee to take pursuant to the Related Agreements. Subject to Sections 1(c)(ii) and 5 of this Agreement, and in accordance -------- -------- - with the directions of the Issuer, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Collateral (including the Related Agreements) as are not covered by any of the foregoing provisions and as are expressly requested by the Owner Trustee and are reasonably within the capability of the Administrator. (ii) The Administrator shall perform any duties expressly required to be performed by the Administrator under the Trust Agreement, including the preparation of tax returns pursuant to Section 5.7 of the Trust ----------- Agreement. (iii) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its Affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuer and shall be, in the Administrator's opinion, no less favorable to the Issuer than would be available from unaffiliated parties. (iv) It is the intention of the parties hereto that the Administrator shall, and the Administrator hereby agrees to, prepare, file and deliver on behalf of the Issuer all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuer to prepare, file or deliver pursuant to the Related Agreements, including any filing, reports, notices, applications and registrations with, and seek any consents or authorizations from, the Securities and Exchange Commission and any state authority on behalf of the Issuer as may be necessary or advisable to comply with any federal or state securities or reporting requirements laws, to the extent not provided by the Servicer in accordance with Section 3.9 of the Transfer and Servicing Agreement. In ----------- furtherance thereof, the Owner Trustee shall, on behalf of the Issuer, execute and deliver to the Administrator and its agents, and to each successor Administrator appointed pursuant to the terms hereof, one or more 5 powers of attorney substantially in the form of Exhibit A hereto, appointing the Administrator the attorney-in-fact of the Issuer for the purpose of executing on behalf of the Issuer all such documents, reports, filings, instruments, certificates and opinions. (c) Non-Ministerial Matters. ----------------------- (i) With respect to matters that in the reasonable judgment of the Administrator are nonministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such action, the Administrator shall have notified Seller of the proposed action and Seller shall not have withheld consent or provided an alternative direction. For the purpose of the preceding sentence, "non-ministerial matters" shall include: (A) the amendment of or any supplement to the Indenture; (B) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, claim or lawsuit brought by or against the Issuer (other than in connection with the collection or enforcement of the Collateral); (C) the amendment, change or modification of the Related Agreements; (D) the appointment of successor Transfer Agent and Registrars, successor Paying Agents and successor Indenture Trustees pursuant to the Indenture or the appointment of successor Administrators, or the consent to the assignment by the Transfer Agent and Registrar, Paying Agent or Indenture Trustee of its obligations under the Indenture; and (E) the removal of the Indenture Trustee. (ii) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (x) make any payments from its own funds to the Noteholders, the Owner or any other Person under the Related Agreements, (y) sell the Collateral pursuant to Section 5.5 of the Indenture other than pursuant to a written directive of ----------- the Indenture Trustee or (z) take any other action that the Issuer directs the Administrator not to take on its behalf. 2. Records. The Administrator shall maintain appropriate books of account ------- and records relating to services performed hereunder, which books of account and records shall be accessible for inspection by the Issuer, the Owner Trustee, the Indenture Trustee, the Servicer and Seller at any time during normal business hours. 3. Compensation. As compensation for the performance of the ------------ Administrator's obligations under this Agreement, the Administrator shall be entitled to $100 per month which shall be payable in accordance with Section 3.2 of the Transfer and Servicing Agreement. Seller shall be 6 responsible for payment of the Administrator's fees (to the extent not paid pursuant to Section 3.2 of the Transfer and Servicing Agreement). 4. Additional Information to be Furnished to Issuer. The Administrator ------------------------------------------------ shall furnish to the Issuer from time to time such additional information regarding the Collateral as the Issuer shall reasonably request. 5. Independence of Administrator. For all purposes of this Agreement, the ----------------------------- Administrator shall be an independent contractor and shall not be subject to the supervision of the Issuer or the Owner Trustee with respect to the manner in which it accomplishes the performance of its obligations hereunder. Unless expressly authorized by the Issuer, the Administrator shall have no authority to act for or represent the Issuer or the Owner Trustee in any way and shall not otherwise be deemed an agent of the Issuer or the Owner Trustee. 6. No Joint Venture. Nothing contained in this Agreement shall (i) ---------------- constitute the Administrator and either of the Issuer or the Owner Trustee as members of any partnership, joint venture, association, syndicate, unincorporated business or other separate entity, (ii) be construed to impose any liability as such on any of them or (iii) be deemed to confer on any of them any express, implied or apparent authority to incur any obligation or liability on behalf of the others. 7. Other Activities of Administrator. Nothing herein shall prevent the --------------------------------- Administrator or its Affiliates from engaging in other businesses or, in its sole discretion, from acting in a similar capacity as an administrator for any other person or entity even though such person or entity may engage in business activities similar to those of the Issuer, the Owner Trustee or the Indenture Trustee. 8. Term of Agreement; Resignation and Removal of Administrator. ----------------------------------------------------------- (a) This Agreement shall continue in force until the termination of the Issuer, upon which event this Agreement shall automatically terminate. (b) Subject to Sections 8(e) and (f), the Administrator may resign its duties hereunder by providing the Issuer with at least sixty (60) days prior written notice. (c) Subject to Sections 8(e) and (f), the Issuer may remove the Administrator without cause by providing the Administrator with at least sixty (60) days prior written notice. (d) Subject to Sections 8(e) and (f), at the sole option of the Issuer, the Administrator may be removed immediately upon written notice of termination from the Issuer to the Administrator if any of the following events shall occur: (i) the Administrator shall default in the performance of any of its duties under this Agreement and, after notice of such default, shall not cure such default within thirty (30) 7 days (or, if such default cannot be cured in such time, shall not give within thirty (30) days such assurance of cure as shall be reasonably satisfactory to the Issuer); (ii) a court having jurisdiction in the premises shall enter a decree or order for relief, and such decree or order shall not have been vacated within sixty (60) days, in respect of the Administrator in any involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect or appoint a receiver, conservator, liquidator, assignee, custodian, trustee, sequestrator or similar official for the Administrator or any substantial part of its property or order the winding up or liquidation of its affairs; or (iii) the Administrator shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or similar official for the Administrator or any substantial part of its property, shall consent to the taking of possession by any such official of any substantial part of its property, shall make any general assignment for the benefit of creditors, shall admit in writing its inability to pay its debts generally as they become due or shall fail generally to pay its debts as they become due. The Administrator agrees that if any event specified in clause (ii) or (iii) of this Section 8(d) shall occur, it shall give written ------------ notice thereof to the Issuer and the Indenture Trustee within seven (7) days after the happening of such event. After obtaining knowledge of any event specified in clause (i), (ii) or (iii) of this Section 8(d), ------------ the Issuer shall give prompt written notice thereof to the Rating Agencies. (e) No resignation or removal of the Administrator pursuant to this Section 8 shall be effective until (i) a successor Administrator shall have been appointed by the Issuer and (ii) such successor Administrator shall have agreed in writing to be bound by the terms of this Agreement in the same manner as the Administrator is bound hereunder. (f) The appointment of any successor Administrator shall be effective only after satisfaction of the Rating Agency Condition with respect to the proposed appointment. 9. Action upon Termination, Resignation or Removal. Promptly upon the ----------------------------------------------- effective date of termination of this Agreement pursuant to Section 8(a) or the resignation or removal of the Administrator pursuant to Sections 8(b), (c) or (d), respectively, the Administrator shall be entitled to be paid all fees and reimbursable expenses accruing to it to the date of such termination, resignation or removal. The Administrator shall forthwith upon such termination pursuant to Section 8(a) deliver to Seller all property and documents of or relating to the Collateral then in the custody of the Administrator. In the event of the resignation or removal of the Administrator pursuant to Sections 8(b), (c) or (d), respectively, the Administrator shall cooperate with the Issuer 8 and take all reasonable steps requested to assist the Issuer in making an orderly transfer of the duties of the Administrator. 10. Notices. Any notice, report or other communication given hereunder ------- shall be in writing and addressed as follows: (a) if to the Issuer or the Owner Trustee, to Bankers Trust Company, Four Albany Street, 10th Floor, New York, New York 10006, Attn: Corporate Trust and Agency Services, with a copy to the Administrator; (b) if to the Administrator, to First Consumers National Bank, 9300 S.W. Gemini Drive, Beaverton, Oregon 97008, Attn: President; (c) if to the Indenture Trustee, to The Bank of New York, 2 North LaSalle Street, Suite 1020, Chicago, Illinois 60602, Attn: Account Manager; and (d) if to the Seller, to First Consumers Credit Corporation, 400 West 9th Street, Suite 302D, Wilmington, Delaware, 19801, Attn: Treasurer. or to such other address as any party shall have provided to the other parties in writing. Any notice required to be in writing hereunder shall be deemed given if such notice is mailed by certified mail, postage prepaid, or hand delivered to the address of such party as provided above, except that notices to the Indenture Trustee, Seller, the Administrator or the Issuer are effective only upon receipt. 11. Amendments. This Agreement may be amended from time to time, by a ---------- written amendment duly executed and delivered by the Issuer, the Administrator and Seller, with the written consent of the Owner Trustee (as such and in its individual capacity), without the consent of any of the Noteholders or the Owner, to cure any ambiguity, to correct or supplement any provisions in this Agreement or for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or modifying in any manner the rights of the Noteholders or Owner; provided, however, that such amendment will not, as evidenced by an Officer's Certificate of the Administrator addressed and delivered to the Owner Trustee, materially and adversely affect the interests of any Noteholder or the Owner. This Agreement may also be amended from time to time, by a written amendment duly executed and delivered by the Issuer, the Administrator and Seller, with the written consent of the Owner Trustee (as such and in its individual capacity), the holders of Notes evidencing not less than 66 2/3% of the Outstanding Amount of the Notes, and the Owner, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or modifying in any manner the rights of Noteholders or the Owner; provided, however, that, without the consent of the Holders of all of the Notes then Outstanding, no such amendment shall (a) increase or reduce in any manner the amount of, or accelerate or delay the timing of, collections of payments on the Receivables or distributions that are required to be made for the benefit of the 9 Noteholders or (b) reduce the aforesaid portion of the Outstanding Amount of the Notes, the Holders of which are required to consent to any such amendment. Prior to the execution of any such amendment or consent, the Administrator shall furnish written notification of the substance of such amendment or consent to each Rating Agency. Promptly after the execution of any such amendment or consent, the Administrator shall furnish written notification of the substance of such amendment or consent to the Indenture Trustee. It shall not be necessary for the consent of Noteholders pursuant to this Section 11 to approve the particular form of any proposed amendment or consent, but it shall be sufficient if such consent shall approve the substance thereof. 12. Successors and Assigns. This Agreement may not be assigned by the ---------------------- Administrator unless such assignment is previously consented to in writing by the Issuer, Seller and the Owner Trustee (as such and in its individual capacity) and subject to the satisfaction of the Rating Agency Condition in respect thereof. An assignment with such consent and satisfaction, if accepted by the assignee, shall bind the assignee hereunder in the same manner as the Administrator is bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned by the Administrator without the consent of the Issuer, Seller, the Owner Trustee or the Rating Agencies to a corporation or other organization that is a successor (by merger, consolidation or purchase of assets) to the Administrator, provided that such successor organization executes and delivers to the Issuer, Seller and the Owner Trustee an agreement in which such corporation or other organization agrees to be bound hereunder by the terms of said assignment in the same manner as the Administrator is bound hereunder. Subject to the foregoing, this Agreement shall bind any successors or assigns of the parties hereto. 13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE ------------- LAWS OF THE STATE OF ILLINOIS, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. 14. Headings. The section headings hereof have been inserted for -------- convenience of reference only and shall not be construed to affect the meaning, construction or effect of this Agreement. 15. Counterparts. This Agreement may be executed in counterparts, each of ------------ which when so executed shall together constitute but one and the same agreement. 16. Severability. Any provision of this Agreement that is prohibited or ------------ unenforceable in any jurisdiction shall 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 provision in any other jurisdiction. 10 17. Not Applicable to FCNB in Other Capacities. Nothing in this Agreement ------------------------------------------ shall affect any obligation FCNB may have in any other capacity, other than as Administrator. 18. Limitation of Liability of Owner Trustee. Notwithstanding anything ---------------------------------------- contained herein to the contrary, this instrument has been signed by Bankers Trust Company not in its individual capacity but solely in its capacity as Owner Trustee of the Issuer and in no event shall Bankers Trust Company in its individual capacity or any beneficial owner of the Issuer have any liability for the representations, warranties, covenants, agreements or other obligations of the Issuer hereunder, as to all of which recourse shall be had solely to the assets of the Issuer. For all purposes of this Agreement, in the performance of any duties or obligations hereunder, the Owner Trustee (as such or in its individual capacity) shall be subject to, and entitled to the benefits of, the terms and provisions of the Trust Agreement. 19. Third-Party Beneficiary. The Owner Trustee is a third party beneficiary ----------------------- to this Agreement and is entitled to the rights and benefits hereunder and may enforce the provisions hereof as if it were a party hereto. 20. Nonpetition Covenants. Notwithstanding any prior termination of this --------------------- Agreement, the Administrator shall not at any time with respect to the Issuer, First Consumers Master Trust or Seller, and the Issuer shall not at any time with respect to First Consumers Master Trust or Seller acquiesce, petition or otherwise invoke or cause the Issuer, First Consumers Master Trust or Seller to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Issuer, First Consumers Master Trust or Seller under any Federal or state bankruptcy, insolvency or similar law or appointing a receiver, conservator, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Issuer, First Consumers Master Trust or Seller or any substantial part of their respective properties, or ordering the winding up or liquidation of the affairs of the Issuer, First Consumers Master Trust or Seller; provided, however, that this Section 20 shall -------- ------- ---------- not operate to preclude any remedy described in Article V of the Indenture. 21. Successor Administrator. In the event of a servicing transfer pursuant ----------------------- to Article VII of the Transfer and Servicing Agreement, the successor servicer under the Transfer and Servicing Agreement shall, upon the date of such servicing transfer, become the successor Administrator hereunder. 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered 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 By: /s/ Eileen M. Hughes --------------------- Name: Eileen M. Hughes Title: Vice President FIRST CONSUMERS NATIONAL BANK, as Administrator By: /s/ John R. Steele ------------------- Name: John R. Steele Title: Treasurer Acknowledged and Accepted: FIRST CONSUMERS CREDIT CORPORATION, as Seller By: /s/ John R. Steele ------------------- Name: John R. Steele Title: Treasurer First Consumers Credit Card Master Note Trust 12 Administration Agreement Signature Page EXHIBIT A [Form of Power of Attorney] POWER OF ATTORNEY STATE OF ILLINOIS ) ) COUNTY OF COOK ) KNOW ALL MEN BY THESE PRESENTS, that First Consumers Credit Card Master Note Trust, a Illinois trust ("Trust"), does hereby make, constitute and appoint First Consumers National Bank, as Administrator under the Administration Agreement (as defined below), and its agents and attorneys, as Attorneys-in-Fact to execute on behalf of the Trust all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Trust to prepare, file or deliver pursuant to the Related Agreements (as defined in the Administration Agreement), including to appear for and represent the Trust in connection with the preparation, filing and audit of federal, state and local tax returns pertaining to the Trust, and with full power to perform any and all acts associated with such returns and audits that the Trust could perform, including the right to distribute and receive confidential information, defend and assert positions in response to audits, initiate and defend litigation, and to execute waivers of restriction on assessments of deficiencies, consents to the extension of any statutory or regulatory time limit, and settlements. For the purpose of this Power of Attorney, the term "Administration Agreement" means the Administration Agreement, dated as of March 1, 2001, and amended and restated as of December 31, 2001, between the Trust and First Consumers National Bank, as Administrator, and as such may be amended from time to time. This power of attorney is coupled with an interest and shall survive and not be affected by the subsequent bankruptcy or dissolution of the Trust. All powers of attorney for this purpose heretofore filed or executed by the Trust are hereby revoked. EXECUTED this ____ day of _________, 2001. FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST By: BANKERS TRUST COMPANY, not in its individual capacity but solely as Owner Trustee By:_________________________________ Name: Title: EX-4.5 7 dex45.txt THE RECEIVABLES PURCHASE AGREEMENT DATED 12/31/01 Exhibit 4.5 ----------- RECEIVABLES PURCHASE AGREEMENT between FIRST CONSUMERS CREDIT CORPORATION, Buyer, and FIRST CONSUMERS NATIONAL BANK, RPA Seller, Dated as of December 31, 2001 TABLE OF CONTENTS
Page ARTICLE I DEFINITIONS ......................................................................................... -1- Section 1.1. Definitions .................................................................. -1- Section 1.2. Other Definitional Provisions ................................................ -3- ARTICLE II PURCHASE AND CONVEYANCE OF RECEIVABLES .............................................................. -3- Section 2.1. Purchase ..................................................................... -3- Section 2.2. Addition of Additional Accounts .............................................. -5- ARTICLE III CONSIDERATION AND PAYMENT ........................................................................... -6- Section 3.1. Purchase Price ............................................................... -6- Section 3.2. Payment of Purchase Price .................................................... -6- Section 3.3. Adjustments to Purchase Price ................................................ -7- Section 3.4. Settlement ................................................................... -7- ARTICLE IV REPRESENTATIONS AND WARRANTIES ...................................................................... -7- Section 4.1. RPA Seller's Representations and Warranties .................................. -7- Section 4.2. RPA Seller's Representations and Warranties Regarding Additional Accounts .... -11- Section 4.3. Representations and Warranties of Buyer ...................................... -12- Section 4.4. Other Matters ................................................................ -13- ARTICLE V COVENANTS OF RPA SELLER AND BUYER ................................................................... -13- Section 5.1. RPA Seller Covenants ......................................................... -13- Section 5.2. Buyer Covenants Regarding Nondisclosure; Inspection .......................... -18- ARTICLE VI REPURCHASE OBLIGATION ............................................................................... -18- Section 6.1. Mandatory Repurchase ......................................................... -18-
i Section 6.2. Optional Repurchases ..................................................... -20- Section 6.3. Conveyance of Repurchased Receivables .................................... -20- Section 6.4. Sole Remedy .............................................................. -21- Section 6.5. Selection of Removed Accounts ............................................ -21- ARTICLE VII CONDITIONS PRECEDENT ............................................................................. -21- Section 7.1. Conditions to Buyer's Obligations Regarding Initial Receivables .......... -21- Section 7.2. Conditions to Buyer's Obligations Regarding Supplemental Conveyances ..... -22- Section 7.3. Conditions Precedent to RPA Seller's Obligations ......................... -23- ARTICLE VIII TERM & TERMINATION ............................................................................... -23- Section 8.1. Term ..................................................................... -23- Section 8.2. Effect of Termination .................................................... -24- ARTICLE IX MISCELLANEOUS PROVISIONS ......................................................................... -24- Section 9.1. Amendment ................................................................ -24- Section 9.2. Governing Law ............................................................ -25- Section 9.3. Notices .................................................................. -25- Section 9.4. Severability of Provisions ............................................... -25- Section 9.5. Assignment ............................................................... -25- Section 9.6. Acknowledgment and Agreement of RPA Seller ............................... -25- Section 9.7. Further Assurances ....................................................... -25- Section 9.8. No Waiver; Cumulative Remedies ........................................... -26- Section 9.9. Counterparts ............................................................. -26- Section 9.10. Binding Effect; Third-Party Beneficiaries ................................ -26- Section 9.11. Merger and Integration ................................................... -26- Section 9.12. Headings ................................................................. -26- Section 9.13. Schedules and Exhibits ................................................... -26-
SCHEDULE ONE Accounts SCHEDULE TWO Offices; Location of Records EXHIBIT A Form of Supplemental Conveyance EXHIBIT B Form of Reconveyance EXHIBIT C Form of Settlement Statement EXHIBIT D Additional Representations, Warranties and Covenants ii EXHIBIT E Form of Opinion of Counsel EXHIBIT F Form of Subordinated Note iii RECEIVABLES PURCHASE AGREEMENT, dated as of December 31, 2001 (the "RPA --- Closing Date") between FIRST CONSUMERS NATIONAL BANK, a national banking - ------------ association ("RPA Seller"), and FIRST CONSUMERS CREDIT CORPORATION, a Delaware ---------- Corporation ("Buyer") (this "Agreement"). ----- --------- W I T N E S S E T H: - - - - - - - - - - WHEREAS, Buyer desires to purchase from time to time certain Receivables arising under certain MasterCard and VISA accounts of RPA Seller; and WHEREAS, RPA Seller desires to sell from time to time and assign such Receivables to Buyer upon the terms and conditions hereinafter set forth; and WHEREAS, it is contemplated that the Receivables purchased hereunder will be transferred by Buyer to the Receivables Trust in connection with the issuance of certain Securities; WHEREAS, on the FCMT Termination Date, the Receivables Trust will grant to the Receivables Trustee a security interest in the Receivables Trust's rights relating to the Receivables under this Agreement; and WHEREAS, RPA Seller agrees that the covenants and agreements made by RPA Seller herein shall also be for the benefit of the Receivables Trust, the Receivables Trustee and all holders of the Securities; NOW, THEREFORE, it is hereby agreed among the parties hereto as follows: ARTICLE I DEFINITIONS Section 1.1. Definitions. Capitalized terms used herein and not otherwise ----------- defined herein are defined (i) before the FCMT Termination Date (as defined in the Indenture), in the Pooling and Servicing Agreement, dated as of September 30, 1992, amended and restated as of February 1, 1999, and amended and restated a second time as of December 31, 2001, among First Consumers Credit Corporation, FCNB and The Bank of New York (such agreement, as amended from time to time, the "Pooling and Servicing Agreement"), and (ii) on and after the FCMT Termination ------------------------------- Date, in Annex A to the Master Indenture, dated as of December 31, 2001, between ------- First Consumers Credit Card Master Note Trust and The Bank of New York (the "Indenture"). --------- Additionally, the following terms have the following definitions: "Existing Assets" means (a)(i) the Seller Interest (as defined in the --------------- Existing Pooling Agreement), (ii) all right, title and interest of RPA Seller in, to and under the Receivables existing prior to the opening of business on the RPA Closing Date and arising in connection with the Accounts, all monies due or to become due with respect thereto (including all Finance Charge Receivables), all Recoveries, Collections and other proceeds thereof and Insurance Proceeds relating thereto, the rights to receive certain amounts paid or payable as Interchange (if and to the extent provided for in any Supplement to the Existing Pooling Agreement), all rights to security for such Receivables (including without limitation rights to bank accounts or certificates of deposit pledged as collateral), the right to any Enhancement with respect to any Series existing prior to the opening of business on the RPA Closing Date and all proceeds and products of all of the foregoing, including any rights retained in the Receivables transferred to the Trust under the Existing Pooling Agreement and any rights under the equitable right of redemption (if any of the foregoing terms under this clause (a)(ii) is defined in the Existing Pooling Agreement, -------------- they have the meanings given them therein for the purpose of this clause ------ (a)(ii)), (iii) to the extent not included under clause (a)(ii), all right, - ------- -------------- title and interest of RPA Seller (in its capacity as Seller (as defined in the Existing Pooling Agreement) but not as Servicer (as defined in the Existing Pooling Agreement)) under the Existing Pooling Agreement (including any Supplements executed in connection with any Series of Investor Certificates), including rights to any funds on deposit in any Series Account (as defined in the Existing Pooling Agreement) maintained for the benefit of any Series or Class of Investor Certificates, and (b)(i) the Seller Interest (as defined in the Indenture) (ii) to the extent not included under clause (a)(ii), all right, -------------- title and interest of RPA Seller (in its capacity as Seller (as defined in the Indenture) but not as Servicer (as defined in the Indenture)) under the Indenture (including any Indenture Supplements executed in connection with any Series of Notes) and the other Transaction Documents (as defined in the Indenture), including rights to any funds on deposit in any Series Account (as defined in the Indenture) maintained for the benefit of any Series or Class of Notes. "Existing Pooling Agreement" means the Pooling and Servicing Agreement -------------------------- prior to its amendment and restatement on the RPA Closing Date. "Receivables Trust" means (a) prior to the FCMT Termination Date, First ----------------- Consumers Master Trust and (b) on and after the FCMT Termination Date, the Issuer. "Receivables Trustee" means (i) prior to the FCMT termination date, the ------------------- Trustee, and (ii) after the FCMT termination date, the Indenture Trustee. "Scheduled Trust Termination Date" means December 31, 2050. -------------------------------- -2- "Securities" means all Series of Investor Certificates of any Series (as ---------- defined in the Pooling and Servicing Agreement) and all Series of Notes issued by the Issuer pursuant to the Indenture and the applicable Indenture Supplements (as defined in the Indenture). "Securityholder" or "Holder" means the Person in whose name a Certificate -------------- ------ is registered on the Certificate Register or such other Person deemed to be a "Certificateholder" or "Holder" in the related Series Supplement (all as defined in the Pooling and Servicing Agreement), and the Person in whose name a Note is registered on the Note Register and, if applicable, the holder of any Global Note, or Coupon, as the case may be, or such other Person deemed to be a"Noteholder" or "Holder" in any related Indenture Supplement (all as defined in the Indenture). "Servicing Agreement" means (i) before the FCMT Termination Date, the ------------------- Pooling and Servicing Agreement, and (ii) on and after the FCMT Termination Date, the Transfer and Servicing Agreement. Section 1.2. Other Definitional Provisions. All terms defined directly or ----------------------------- by reference in this Agreement shall have the defined meanings when used in any certificate or other document delivered pursuant hereto unless otherwise defined therein. For purposes of this Agreement and all such certificates and other documents, unless the context otherwise requires: (a) accounting terms not otherwise defined in this Agreement, and accounting terms partly defined in this Agreement to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles; (b) terms defined in Article 9 of the UCC and not otherwise defined in this Agreement are used as defined in that Article as in effect in the applicable jurisdiction; (c) any reference to each Rating Agency shall only apply to any specific rating agency if such rating agency is then rating any outstanding Series; (d) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (e) the words "hereof," "herein" and "hereunder" and words of similar import refer to this Agreement (or the certificate or other document in which they are used) as a whole and not to any particular provision of this Agreement (or such certificate or document); (f) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to this Agreement (or the certificate or other document in which the reference is made), and references to any paragraph, Section, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (g) the term "including" means "including without limitation"; (h) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (i) references to any Person include that Person's successors and assigns; and (j) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof. -3- ARTICLE II PURCHASE AND CONVEYANCE OF RECEIVABLES Section 2.1. Purchase. (a) RPA Seller agrees to contribute, and does hereby -------- contribute to Buyer, and Buyer agrees to accept, and does hereby accept, from RPA Seller on the RPA Closing Date, all of the Existing Assets. The contribution and sales of the Existing Assets from RPA Seller to Buyer are subject in each case to any rights in the Existing Assets transferred, assigned, set over or otherwise conveyed to the FCMT Trustee pursuant to the Existing Pooling Agreement. It is understood and agreed that the obligations of RPA Seller specified herein with respect to the Receivables, including its repurchase obligations under Article VI of this Agreement, shall apply to all Receivables, whether originated before, on or after the RPA Closing Date. RPA Seller and Buyer hereby agree that each existing Receivable sold by RPA Seller to First Consumers Master Trust pursuant to the Existing Pooling Agreement before the RPA Closing Date shall be deemed for all purposes (including the representations and warranties in the second sentence of Section 4.1(l) and RPA Seller's repurchase -------------- obligations under Section 6.1) to have been sold by RPA Seller to Buyer on the ----------- date on which it was so sold to First Consumers Master Trust. RPA Seller acknowledges that all instruments (including certificates of deposit) and bank accounts the security interest in which has been transferred to Buyer hereby and which are maintained with RPA Seller or of which RPA Seller has possession, shall be so maintained and held by RPA Seller on behalf and for the benefit of Buyer, in accordance with the terms of this Agreement. Additionally, for purposes of perfecting Buyer's security interest in bank accounts pledged to RPA Seller, which security interest RPA Seller has transferred to Buyer hereunder, this Agreement constitutes and shall be deemed (i) notice to RPA Seller by Buyer of Buyer's security interest in such bank accounts, and (ii) RPA Seller's acknowledgment of and consent to Buyer's notice and Buyer's security interest in such bank accounts. (b) Subject to and upon the terms and conditions hereinafter set forth, RPA Seller (i) hereby sells, transfers, conveys, and assigns to Buyer, without recourse, all of RPA Seller's right, title, and interest in, to, and under the Receivables existing at the opening of business on the RPA Closing Date (excluding Receivables in respect of Defaulted Accounts), and thereafter created in respect of each Account listed on Schedule One identified by account number ------------ and by Receivable balance as of the RPA Closing Date and each Account automatically designated pursuant to Section 2.2(c), together with all monies -------------- due or to become due with respect thereto -4- (including all Finance Charge Receivables), all Collections, Recoveries thereof and Insurance Proceeds relating thereto, the rights to receive amounts paid or payable as Interchange with respect to such Accounts, all rights to security for such Receivables (including rights to bank accounts or certificates of deposit pledged as collateral) and proceeds of all the foregoing (the "Transferred ----------- Assets"), and (ii) subject to the provisions of Section 2.2, on each Addition - ------ ----------- Date RPA Seller shall sell, transfer, convey and assign to Buyer, without recourse, all of RPA Seller's rights, titles, and interests in, to, and under the Receivables then existing or thereafter created in respect of each Additional Account designated in a Supplemental Conveyance (excluding those referred to in clause (i) above) effective on the Addition Date therefor, ---------- together with all monies due or to become due with respect thereto (including all Finance Charge Receivables), all Collections, Recoveries thereof and Insurance Proceeds relating thereto, the rights to receive amounts paid or payable as Interchange with respect to such Additional Accounts, all rights to security for such Receivables (including rights to bank accounts or certificates of deposit pledged as collateral) and proceeds of all of the foregoing (all of which, upon any such conveyance, shall be included in the Transferred Assets). (c) In connection with such sale and conveyance, RPA Seller shall, at its own expense, on or prior to the RPA Closing Date (i) indicate or cause to be indicated in its computer files relating to the Receivables that Receivables created in connection with the Accounts have been sold to Buyer in accordance with this Agreement and transferred to the Receivables Trust pursuant to the Servicing Agreement for the benefit of the Securityholders and (ii) deliver or cause to be delivered to Buyer (or to the Receivables Trustee, if Buyer so directs) a computer file or microfiche list containing a true and complete list of all such Accounts, identified by account number and by the Receivables balance as of the RPA Closing Date. (d) In connection with such sale and conveyance, including such sale and conveyance made pursuant to Section 2.1(a), RPA Seller agrees (i) to record and -------------- file, at its own expense, any financing statement for the purchase of accounts with respect to the Existing Assets and the Transferred Assets, including the Receivables now existing and hereafter created in respect of each Account (including Receivables in Additional Accounts), meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the sale of the Existing Assets and the Transferred Assets from RPA Seller to Buyer, and (ii) to deliver a file-stamped copy of such financing statements or other evidence of such filings (which may, for purposes of this Section 2.1, consist of telephone confirmations of such filings) to Buyer (or to - ----------- the Receivables Trustee, if Buyer so directs) on or prior to the RPA Closing Date. Section 2.2. Addition of Additional Accounts. (a) If from time to time, ------------------------------- Buyer becomes obligated to designate Additional Accounts pursuant to Section ------- 2.6(a) - ------ -5- of the Servicing Agreement (or any other provision thereof calling for compliance with the procedures set forth in such Section 2.6(a)), then Buyer -------------- shall give RPA Seller written notice thereof on or before the Notice Date prior to the Addition Date therefor and RPA Seller shall on or before the Addition Date designate sufficient Eligible Accounts to be included as Additional Accounts so that after the inclusion thereof Buyer will be in compliance with the requirements of said Section 2.6(a). Additionally, subject to the ------------- limitations, if any, on Buyer's ability to add Additional Accounts under Section ------- 2.6(b) of the Servicing Agreement, from time to time Eligible Accounts may be - ----- designated to be included as Additional Accounts, upon the mutual agreement of Buyer and RPA Seller. In either event, RPA Seller shall have responsibility for selecting the Additional Accounts and shall on or prior to the Addition Date therefore execute and deliver a Supplemental Conveyance identifying the Additional Accounts by account number and Receivables balance and Principal Receivables balance as of the Addition Date, which Supplemental Conveyance shall be effective upon receipt by Buyer. (b) On or before each Addition Date with respect to Additional Accounts added pursuant to Section 2.2(a), RPA Seller (i) shall indicate or cause to be ------------- indicated in its books and records and in the computer files of the Receivables that the Receivables created in connection with such Additional Accounts have been sold to Buyer in accordance with this Agreement and transferred by Buyer to the Receivables Trust pursuant to the Servicing Agreement, (ii) shall deliver to Buyer, the Receivables Trustee and each Rating Agency an opinion of counsel as to the matters specified in Exhibit E, and which shall be reasonably acceptable --------- to the Rating Agencies, and (iii) shall deliver or cause to be delivered to Buyer a computer file or microfiche list containing a true and complete list of all Additional Accounts designated in the respective Supplemental Conveyance or, if Buyer shall so direct, such computer file or microfiche list shall be delivered to the Receivables Trustee pursuant to the Servicing Agreement. RPA Seller's failure to deliver or cause to be delivered the list prior to termination shall not be deemed to render such transfer executory or uncompleted. (c) At any time that Receivables in an Eligible Account are required to be transferred to the Receivables Trust pursuant to Section 2.6(e) of the Servicing ------------- Agreement, such Eligible Account shall, until notice from RPA Seller or Buyer to the other party hereto to the contrary, automatically be designated to be included as an Account (and the Transferred Assets arising therein are hereby conveyed) effective as of the date specified in Section 2.6(e) of the Servicing ------------- Agreement. (d) On or before five Business Days after the first day of the Monthly Period next succeeding the calendar month in which Accounts were included pursuant to Section 2.2(c), RPA Seller (i) shall indicate or cause to be ------------- indicated in its books and records and in the computer files of the Receivables that the -6- Receivables created in connection with such included Accounts have been sold to Buyer in accordance with this Agreement and transferred by Buyer to the Receivables Trust pursuant to the Servicing Agreement and (ii) shall deliver or cause to be delivered to Buyer a computer file or microfiche list containing a true and complete list of all such included Accounts identified by account number and by the Receivables balance and Principal Receivables balance as of the end of such calendar month, or, if Buyer shall so direct, such computer file or microfiche list shall be delivered to the Receivables Trustee pursuant to the Servicing Agreement. ARTICLE III CONSIDERATION AND PAYMENT Section 3.1. Purchase Price. Except as provided in Section 3.2, the -------------- ----------- Purchase Price for all Transferred Assets conveyed to the Buyer under this Agreement shall be a dollar amount equal to the total recorded unpaid balance of the Receivables (including Principal Receivables and Finance Charge Receivables) on the date conveyed to Buyer hereunder. Section 3.2. Payment of Purchase Price. The Purchase Price for the ------------------------- Transferred Assets shall be paid or provided for on the RPA Closing Date, each Addition Date and each Settlement Date, as the case may be, in either of the following ways (or any combination thereof) as Buyer and RPA Seller may mutually agree from time to time: (i) by payment in cash in immediately available funds to the extent that Buyer has funds available for this purpose; (ii) by a borrowing by Buyer from RPA Seller evidenced by a Subordinated Note (as defined in the Indenture) or with the proceeds of a borrowing by Buyer from Spiegel, Inc. evidenced by a Subordinated Note; or (iii) by the sale, transfer, and assignment from Buyer to RPA Seller of an undivided participation in the Seller Interest, entitling RPA Seller to receive a portion of all payments made to the holder of the Seller Interest in the proportion that the principal amount of the purchased Transferred Assets not paid for in cash as provided in clause (i) --------- above or by a note as provided in clause (ii) above bears to the Principal ---------- Receivables evidenced by the Seller Interest. In the absence of any agreement to the contrary, any portion of the Purchase Price not paid in cash or through a borrowing under a Subordinated Note on the RPA Closing Date, any Addition Date or Settlement Date shall automatically be deemed the purchase of a participation in the Seller Interest in accordance with the terms of this Section 3.2 in an ----------- amount equal to the unpaid portion of the Purchase Price payable on such date, which participation interest shall be evidenced by the Settlement Statement as provided in Section 3.4. ----------- Section 3.3. Adjustments to Purchase Price. The Purchase Price payable to ----------------------------- RPA Seller shall be adjusted on a monthly basis to reflect any Credit Adjustments -7- during the prior month, except to the extent that RPA Seller has made a payment to Buyer with respect to any such Credit Adjustment pursuant to Section 5.1(o). -------------- Section 3.4. Settlement. On each Determination Date under the Servicing ---------- Agreement (herein, a "Settlement Date"), RPA Seller shall deliver or cause to be --------------- delivered to Buyer a Settlement Statement in substantially the form of Exhibit ------- C, showing the aggregate amount of Receivables conveyed by RPA Seller from the - - previous Settlement Date (or from the RPA Closing Date in the case of the first Settlement Date) to such date, the amount of all payments of the Purchase Price received by RPA Seller prior to such Settlement Date in respect of such Receivables, any adjustment on account of Credit Adjustments to be made pursuant to Section 3.3, and the settlements of the remaining Purchase Price for such ----------- Receivables to be made as of such Settlement Date between Buyer and RPA Seller in accordance with Section 3.2. ----------- ARTICLE IV REPRESENTATIONS AND WARRANTIES Section 4.1. RPA Seller's Representations and Warranties. RPA Seller hereby ------------------------------------------- represents and warrants to, and agrees with, Buyer as of the RPA Closing Date and the Closing Date for any Series of Securities (other than the representations and warranties in the first sentence of Section 4.1(l) and the -------------- representations and warranties in Sections 4.1(r) and 4.1(s) which are made as --------------- ------ of each day the corresponding representations of the Pooling and Servicing Agreement or the Transfer and Servicing Agreement, as the case may be, are made or deemed made) that: (a) Organization, Good Standing, and Qualification. RPA Seller is a ---------------------------------------------- national banking association duly organized and validly existing and in good standing under the laws of the United States of America, and has full corporate power, authority, and right to own its properties and to 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. RPA Seller is duly qualified to do business and is in good standing in each State of the United States where the nature of its business requires it to be so qualified. (b) Due Authorization. The execution and delivery of this Agreement, any ----------------- Supplemental Conveyance, the Servicing Agreement, or any other document or instrument delivered pursuant hereto or thereto (the "Conveyance Papers"), to ----------------- the extent that RPA Seller is party thereto, and the consummation of the transactions provided for in this Agreement or any such other Conveyance Paper, have been duly authorized by all necessary corporate action on the part of RPA Seller. This -8- Agreement from the time of its execution shall remain an official record of the RPA Seller. (c) No Conflict. The execution and delivery of the Conveyance Papers, the ----------- performance of the transactions contemplated by the Conveyance Papers, and the fulfillment of the terms of the Conveyance Papers will not conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, any indenture, contract, agreement, mortgage, deed of trust, or other instrument to which RPA Seller is a party or by which it or any of its properties are bound. (d) No Violation. The execution and delivery of the Conveyance Papers, the ------------ performance of the transactions contemplated by the Conveyance Papers, and the fulfillment of the terms of the Conveyance Papers will not conflict with or violate any Requirements of Law applicable to RPA Seller. (e) No Proceedings. RPA Seller hereby represents and warrants that there -------------- are no proceedings or investigations pending or, to the best knowledge of RPA Seller, threatened against RPA Seller or Buyer, before any Governmental Authority (i) asserting the invalidity of the Conveyance Papers, (ii) seeking to prevent the consummation of any of the transactions contemplated by the Conveyance Papers, (iii) seeking any determination or ruling that, in the reasonable judgment of RPA Seller, would materially and adversely affect the performance by RPA Seller or Buyer of its obligations under the Conveyance Papers, (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of the Conveyance Papers, or (v) seeking to impose income taxes on the Receivables Trust (other than as a wholly-owned subsidiary of the Buyer) . RPA Seller has disclosed all material information regarding the case of Brenda M. Sims and Charles Hogencamp v. First Consumers National Bank and Spiegel, Inc. to Buyer and Buyer retains all of its rights under this Agreement with respect to such litigation. (f) All Consents Required. All approvals, licenses, authorizations, --------------------- consents, orders, or other actions of any Person or of any Governmental Authority required in connection with the execution and delivery of the Conveyance Papers by RPA Seller, the performance by RPA Seller of the transactions contemplated by the Conveyance Papers, and the fulfillment by RPA Seller of the terms of the Conveyance Papers, have been obtained. (g) Identification of Accounts and Receivables. As of the RPA Closing Date, ------------------------------------------ RPA Seller has (i) indicated or caused to be indicated in its books and records and in the computer files of the Receivables that Receivables created in respect of the Accounts have been sold to Buyer in accordance with this Agreement and transferred to the Receivables Trust pursuant to the Servicing Agreement for the benefit of -9- Securityholders and (ii) has delivered or caused to be delivered to Buyer (or to the Receivables Trustee, if so directed by Buyer) a computer file or microfiche list containing a true and complete list of all such Accounts, identified by account number and by the Receivable balance as of the RPA Closing Date. (h) Existing Financing Statements. There is no financing statement or ----------------------------- similar statement or instrument of registration naming RPA Seller as "debtor", "transferor" or similar party (other than those, if any, which have been released or terminated or the scope of which has otherwise been effectively limited) under the law of any jurisdiction now on file or registered in any public office covering any interest of any kind in the Accounts or Receivables, or intended so to be, and RPA Seller will not execute or authorize there to be on file in any public office any financing statement or similar statement or instrument of registration under the laws of any jurisdiction relating to the Accounts or Receivables, except any financing statements or assignments to be filed in respect of and covering any security or other interest of Buyer or the Receivables Trustee pursuant to this Agreement or the Servicing Agreement. (i) Filings. All filings and recordings required to perfect the title of ------- Buyer to the Receivables purchased hereunder have been or will have been accomplished prior to the RPA Closing Date and each Addition Date and are in full force and effect, and RPA Seller shall at its expense perform all acts and execute all documents reasonably requested by Buyer at any time to evidence, perfect, maintain, and enforce the title of Buyer in such Receivables and the transfer thereof to the Receivables Trust. RPA Seller will, at the reasonable request of Borrower, execute and file additional financing statements reasonably satisfactory in form and substance to Buyer. (j) Binding Obligations. The Conveyance Papers to which RPA Seller is party ------------------- constitute legal, valid and binding obligations of RPA Seller, enforceable against RPA Seller in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity). (k) Valid Conveyance. The representations and warranties set out in Exhibit ---------------- ------- D are true and correct. Without limiting the generality of the foregoing, as of - - the RPA Closing Date, the Conveyance Papers then in existence constitute a valid sale, assignment, and conveyance to Buyer of all right, title and interest of such seller in, to, and under the Transferred Assets, and such property will be owned free and clear of any Lien of any Person claiming through or under RPA Seller and its Affiliates, except for Liens permitted under Section 5.1(d). -------------- -10- (l) Eligibility of Receivables. RPA Seller hereby represents and warrants -------------------------- as of each date the representations are made or deemed made in Section 2.4(b) of -------------- the Pooling and Servicing Agreement and Section 2.4(b) of the Transfer and -------------- Servicing Agreement (other than the first sentences thereof) that such representations are true and correct. RPA Seller hereby represents and warrants as of the RPA Closing Date that (i) as of the RPA Closing Date, Schedule One to ------------ this Agreement and the computer file or microfiche list delivered pursuant to Section 2.1(c) is an accurate and complete listing in all material respects of - -------------- all the Accounts as of the RPA Closing Date and the information contained therein with respect to the identity of such Accounts and the Receivables existing thereunder is true and correct in all material respects as of the RPA Closing Date, (ii) each Receivable then existing is an Eligible Receivable, (iii) each Receivable then existing has been conveyed to Buyer free and clear of any Lien of any Person and in compliance, in all material respects, with all Requirements of Law applicable to RPA Seller and (iv) with respect to each Receivable then existing, all consents, licenses, approvals, or authorizations of or registrations or declarations with any Governmental Approval required to be obtained, effected or given by RPA Seller in connection with the transfer of such Receivable to Buyer have been duly obtained, effected, or given and are in full force and effect. On each day on which any new Receivable is conveyed by RPA Seller to Buyer hereunder, RPA Seller shall be deemed to represent and warrant to Buyer that (i) each Receivable conveyed on such day is an Eligible Receivable, (ii) each Receivable conveyed on such day has been conveyed to Buyer free and clear of any Lien of any Person and in compliance, in all material respects, with all Requirements of Law applicable to RPA Seller, (iii) with respect to each such Receivable, all consents, licenses, approvals or authorizations of or registrations or declarations with, any Governmental Authority required to be obtained, effected, or given by RPA Seller in connection with the conveyance of such Receivable to the Receivables Trust have been duly obtained, effected or given and are in full force and effect, and (iv) the representations and warranties set forth in Sections 4.1(j) and (k) are true --------------- --- and correct with respect to each Receivable transferred on such day as if made on such day. (m) Eligible Accounts. As of the RPA Closing Date, each Account (other than ----------------- Additional Accounts) is an Eligible Account. (n) Selection Procedures. No selection procedures reasonably believed by -------------------- RPA Seller to be materially adverse to the interests of Buyer or its successors and assigns were utilized by RPA Seller in selecting the Accounts. (o) FDIC Insurance. RPA Seller's deposits are insured by the Federal -------------- Deposit Insurance Corporation ("FDIC"). ---- -11- (p) Bulk Sales. The execution, delivery and performance of this Agreement ---------- do not require compliance with any "bulk sales" law by RPA Seller. (q) Solvency. The transactions under this Agreement do not and will not -------- render RPA Seller insolvent, nor have such transactions been entered into in contemplation of RPA Seller's insolvency. (r) Pooling and Servicing Agreement. The representations made in Section ------------------------------- ------- 2.4(a) under the Pooling and Servicing Agreement (other than the first sentence - ------ thereof) are true and correct on the dates made. (s) Transfer and Servicing Agreement. The representations made in Section -------------------------------- ------- 2.4(a) under the Transfer and Servicing Agreement (other than the first sentence - ------ thereof) are true and correct on the dates made. Section 4.2. RPA Seller's Representations and Warranties Regarding ----------------------------------------------------- Additional Accounts. RPA Seller hereby represents and warrants, and agrees with - ------------------- Buyer, as of each Addition Date, that: (a) Reconfirmation of Representations and Warranties. All representations ------------------------------------------------ and warranties made by RPA Seller pursuant to Section 4.1 remain true and ----------- correct in all respects as of such Addition Date as if made on such date. (b) Identification of Accounts and Receivables. RPA Seller has, as of the ------------------------------------------ Addition Date with respect to Additional Accounts added pursuant Section 2.2(a), -------------- and will have, as of the fifth Business Day after the first day of the calendar month occurring after any Addition Date occurring under Section 2.2(c), (i) -------------- indicated or caused to be indicated in its books and records and in the computer files of the Receivables that Receivables created in respect of the Additional Accounts have been sold to Buyer in accordance with this Agreement and transferred to the Receivables Trust pursuant to the Servicing Agreement for the benefit of the Securityholders and (ii) delivered or caused to be delivered to Buyer (or to the Receivables Trustee, if so directed by Buyer) a computer file or microfiche list containing a true and correct list of all such Additional Accounts, identified by account number, and the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date for Additional Accounts added pursuant to Section 2.2(a) and as of such fifth Business Day of a calendar month with - -------------- respect to Additional Accounts added pursuant to Section 2.2(b) and any such -------------- computer file or microfiche list is or will be an accurate and complete listing in all material respects of all the Additional Accounts as of the Addition Date or as of such fifth Business Day and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of such date. -12- (c) Eligibility of Accounts. Each Additional Account is, as of the Addition ----------------------- Date, an Eligible Account. (d) Selection Procedures. The Additional Accounts were assigned randomly to -------------------- Cycles by RPA Seller. No selection procedures reasonably believed by RPA Seller to be materially adverse to the interests of Buyer or its successors and assigns were utilized by RPA Seller in selecting the Additional Accounts from available Eligible Accounts. (e) Insolvency. RPA Seller is not insolvent as of the Addition Date and ---------- will not be rendered insolvent by adding any such Additional Account to any Cycle. (f) Bankruptcy Proceeding. RPA Seller has not filed a voluntary proceeding --------------------- under the Debtor Relief Laws and has no knowledge of the filing of any involuntary proceeding against it under such laws. (g) Valid Conveyance. The representations and warranties set out in Exhibit ---------------- ------- D are true and correct. Without limiting the generality of the foregoing, as of - - each Addition Date, a valid sale, assignment and conveyance to Buyer of all right, title, and interest of RPA Seller in, to, and under the Transferred Assets, has been consummated and such property will be held free and clear of any Lien of any Person claiming through or under RPA Seller and its Affiliates, except for Liens permitted under Section 5.1(d). -------------- Section 4.3. Representations and Warranties of Buyer. As of the RPA Closing --------------------------------------- Date, and each Addition Date, Buyer hereby represents and warrants to, and agrees with, RPA Seller that: (a) Organization and Good Standing. Buyer is a corporation duly organized ------------------------------ and validly existing in good standing under the laws of the State of Delaware and has full corporate power, authority, and right to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and to execute, deliver, and perform its obligations under the Conveyance Papers. (b) Due Qualification. Buyer is neither required to qualify, nor to ----------------- register, as a foreign corporation in any state in order to conduct its business, and has obtained all necessary licenses and approvals with respect to Buyer required under federal and Delaware law. (c) Due Authorization. The execution and delivery of the Conveyance Papers ----------------- and the consummation of the transactions provided for in the Conveyance -13- Papers have been duly authorized by Buyer by all necessary corporate action on the part of Buyer. (d) No Conflict. The execution and delivery of the Conveyance Papers, the ----------- performance of the transactions contemplated by the Conveyance Papers and the fulfillment of the terms of the Conveyance Papers will not conflict with, result in any breach of any of the material terms and provisions of, or constitute (with or without notice or lapse of time or both) a material default under, any indenture, contract, agreement, mortgage, deed of trust, or other instrument to which Buyer is a party or by which it or any of its properties are bound. (e) No Violation. The execution and delivery of the Conveyance Papers, the ------------ performance of the transactions contemplated by the Conveyance Papers, and the fulfillment of the terms of the Conveyance Papers will not conflict with or violate any Requirements of Law applicable to Buyer. (f) No Proceedings. There are no proceedings or investigations pending or, -------------- to the best knowledge of Buyer, threatened against Buyer, before any Governmental Authority (i) asserting the invalidity of the Conveyance Papers, (ii) seeking to prevent the consummation of any of the transactions contemplated by the Conveyance Papers, (iii) seeking any determination or ruling that, in the reasonable judgment of Buyer, would materially and adversely affect the Papers, or (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of the Conveyance Papers. (g) All Consents Required. All approvals, authorizations, licenses, --------------------- consents, orders, or other actions of any Person or of any Governmental Authority required in connection with the execution and delivery of the Conveyance Papers, the performance of the transactions contemplated by the Conveyance Papers, and the fulfillment of the terms of the Conveyance Papers have been obtained. Section 4.4. Other Matters. ------------- (a) The representations and warranties set forth in this Article IV shall ---------- survive the conveyance of the Transferred Assets to Buyer, and termination of the rights and obligations of the Buyer and RPA Seller under this Agreement. Upon discovery by Buyer or RPA Seller of a breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the others. (b) In no event shall Buyer be liable to RPA Seller on account of breach of any representation or warranty of Buyer set forth herein. -14- ARTICLE V COVENANTS OF RPA SELLER AND BUYER Section 5.1. RPA Seller Covenants. RPA Seller hereby covenants and agrees -------------------- with Buyer as follows: (a) Cardholder Agreements and Cardholder Guidelines. RPA Seller shall ----------------------------------------------- comply with and perform its obligations under the Cardholder Agreements relating to the Accounts and the Cardholder Guidelines, except insofar as any failure to so comply or conform would not materially and adversely affect the rights of the Receivables Trust, the Receivables Trustee and Securityholders under the Transaction Documents. In that regard, except as aforesaid, and so long as such changes are made applicable to the comparable segments of those MasterCard and VISA accounts owned and serviced by RPA Seller which have characteristics the same as, or substantially similar to, the Accounts pursuant to which the Receivables were created (if any), RPA Seller shall be free to change the terms and provisions of such Cardholder Agreements or the Cardholder Guidelines in any respect (including the calculation of the amount, the timing, of charge-offs). RPA Seller shall provide to each Rating Agency written notice of any such change that (1) lowers the periodic finance charge rate used to calculate Finance Charges on any Account or changes the minimum monthly payment applicable to any Account; (2) changes any periodic finance charge rate used to calculate Finance Charges on any Account from a floating rate to a fixed rate or from a fixed rate to a floating rate; (3) reduces any Cardholder Fees, Cash Advance Fees or other fees applicable to any Account or (4) changes the calculation of the amount, or the timing, of charge offs. (b) Finance Charges and Other Fees. Except (i) as otherwise required by any ------------------------------ Requirements of Law or (ii) as is consistent with the provisions of the Servicing Agreement and all Supplements thereto and as is deemed by RPA Seller to be advisable for its MasterCard and VISA program based on a good faith assessment by RPA Seller of the various factors impacting the use of its MasterCard and VISA cards, RPA Seller shall not reduce at any time (x) the Finance Charges assessed in respect of any Accounts or (y) any other fees charged on any of the Accounts, if as a result of any such reduction, RPA Seller's reasonable expectation of the Portfolio Yield in respect of any Series as of such date would be less than the current Base Rate applicable to such Series. (c) Receivables Not to be Evidenced by Promissory Securities. RPA Seller -------------------------------------------------------- will take no action to cause any Receivable to be evidenced by any instrument. (d) Security Interests. Except for the conveyances hereunder, (i) RPA ------------------ Seller will not sell, pledge, assign or transfer to any other Person, or grant, create, -15- incur, assume or suffer to exist any Lien on any Receivable, whether now existing or hereafter created, or any interest therein; (ii) RPA Seller will immediately notify Buyer and the Receivables Trustee of the existence of any Lien on any Receivable; and (iii) RPA Seller shall defend the right, title, and interest of Buyer and its successors and assigns in, to, and under the Receivables, whether now existing or hereafter created, against all claims of third parties claiming through or under RPA Seller; provided, however, that -------- ------- nothing in this Section 5.1(d) shall prevent or be deemed to prohibit RPA Seller -------------- from suffering to exist upon any of the Accounts or Receivables any Liens for state, municipal or other local taxes if such taxes shall not at the time be due and payable or if RPA Seller shall concurrently be contesting the validity thereof in good faith by appropriate proceedings and shall have set aside on its books adequate reserves with respect thereto. (e) Chief Executive Office; State of Organization. RPA Seller's chief --------------------------------------------- executive office and state of organization are identified on Schedule Two. RPA ------------ Seller will not relocate its chief executive office or state of organization, unless RPA Seller shall have given to Buyer not less than 15 days' written notice of its intention to do so, clearly describing the new location or state of organization. If as a result of such relocation, the applicable provisions of the UCC or any other applicable law require the filing of any amendment to any previously-filed financing or continuation statement or the filing of a new financing statement, RPA Seller shall file such financing statement or amendment as may be necessary with respect to the transfer of accounts. Additionally, RPA Seller shall clearly and unambiguously identify or cause to be identified each Account (including any Additional Account designated pursuant to Section 2.2) in ----------- its computer records relating to the Receivables, to reflect that the Receivables arising in such Account have been sold to Buyer and transferred by Buyer to the Receivables Trust pursuant to the Servicing Agreement. RPA Seller shall, prior to the sale or transfer to a third party of any receivable owned by RPA Seller or held in its custody, examine its books and records, including any computer records, to determine that such receivable is not a Receivable. (f) Change of Name or Corporate Structure. Within 30 days after RPA Seller ------------------------------------- makes any change in its name, identity, or corporate structure which would make any financing statement or continuation statement filed in accordance with Section 2.1 above seriously misleading within the meaning of Section 9-508 of - ----------- the UCC as in effect in the state where such financing statement or continuation statement was filed, RPA Seller shall file such financing statements or amendments as may be necessary to perfect or maintain the perfection of the transfer of the Receivables. (g) Further Assurances. RPA Seller will make, execute or endorse, ------------------ acknowledge, and file or deliver to Buyer from time to time such schedules, confirmatory assignments, conveyances, transfer endorsements, powers of attorney, -16- certificates, reports and other assurances or instruments and take such further steps relating to the Receivables and other rights covered by this Agreement, as Buyer may request and reasonably require. (h) Indemnification. RPA Seller agrees to indemnify, defend and hold Buyer --------------- harmless from and against any and all loss, liability, damage, judgment, claim, deficiency, or expense (including interest, penalties, reasonable attorneys' fees and amounts paid in settlement) to which Buyer may become subject insofar as such loss, liability, damage, judgment, claim, deficiency, or expense arises out of or is based upon (i) a breach by RPA Seller of its warranties and covenants contained in Section 4.1 (provided, however, with respect to the ----------- -------- ------- representations and warranties contained in Sections 4.1(1) and (m) above the --------------- --- indemnification provided for herein shall apply only to a breach involving a material amount of Accounts or Receivables) or (ii) the representations of RPA Seller contained in Section 4.2, or any information certified in any Schedule ----------- delivered by RPA Seller hereunder, being untrue in any material respect at any time. The obligations of RPA Seller under this Section 5.1(h) shall be -------------- considered to have been relied upon by Buyer and shall survive the execution, delivery, and performance of this Agreement regardless of any investigation made by Buyer or on its behalf. (i) Municipal and Local Taxes. Servicer shall be responsible for collecting ------------------------- all state, local, and municipal taxes associated with the Accounts and Receivables and for remitting the same to the appropriate Governmental Authority, together with all tax returns, reports, or affidavits required by such Governmental Authority in connection therewith. (j) Conveyance of Accounts. RPA Seller shall not convey, assign, exchange, ---------------------- or otherwise transfer the Accounts to any Person prior to termination of this Agreement, and the Servicing Agreement. (k) Non-Petition. RPA Seller hereby covenants and agrees that prior to the ------------ date which is one year and one day after the Scheduled Trust Termination Date, it will not institute against, or join any other person in instituting against, Buyer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under any federal or state bankruptcy or similar law. (l) Merger; Consolidation. RPA Seller shall not consolidate with or merge --------------------- into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, unless: (i) the Person formed by such consolidation or into which RPA Seller is merged or the Person which acquires by conveyance or transfer the properties and assets of RPA Seller substantially as an entirety shall be, if -17- RPA Seller is not the surviving entity, organized and existing under the laws of the United States of America or any State or the District of Columbia, and shall be a national banking association, federal savings association, state banking corporation or state savings association which is not subject to the bankruptcy laws of the United States of America and shall expressly assume, by an agreement supplemental hereto, executed and delivered to the Buyer, in form satisfactory to the Buyer, the performance of every covenant and obligation of RPA Seller, as applicable hereunder, and shall benefit from all the rights granted to RPA Seller, as applicable hereunder. To the extent that any right, covenant or obligation of RPA Seller, as applicable hereunder, is inapplicable to the successor entity, such successor entity shall be subject to such covenant or obligation, or benefit from such right, as would apply to the extent practicable, to such successor entity; (ii) RPA Seller shall have delivered to the Buyer an Officer's Certificate and an Opinion of Counsel, each, in form and substance reasonably acceptable to the Buyer, stating that such consolidation, merger, conveyance or transfer and such supplemental agreement comply with this Agreement and that all conditions precedent herein provided for relating to such transaction have been complied with and, in the case of the Opinion of Counsel, that such supplemental agreement is legal, valid and binding with respect to RPA Seller; and (iii) RPA Seller shall have notified the Rating Agencies of such actions in writing prior to completing such transaction. (m) Receivables to be Accounts. RPA Seller will take no action to -------------------------- cause any Receivable to be characterized as anything other than an "account" (as defined in the UCC as in effect in the applicable jurisdiction). Each Receivable shall be payable pursuant to a contract which does not create a Lien on any goods purchased thereunder. (n) Account Allocations. ------------------- (i) In the event that RPA Seller is unable for any reason to transfer Receivables to Buyer in accordance with the provisions of this Agreement (including, without limitation, by reason of the occurrence of an Insolvency Event) then, in any such event, RPA Seller agrees to instruct the Servicer to allocate and pay in accordance with the Servicing Agreement, after the date of such inability, payments received in respect of the Accounts giving rise to such Receivables first to the total amount of Principal Receivables from such Accounts transferred to Buyer. The parties hereto agree that Finance Charge Receivables, whenever created, with respect to -18- Principal Receivables which have been transferred to Buyer shall continue to be property of Buyer or its assigns notwithstanding any cessation of the transfer of additional Principal Receivables to Buyer and Collections with respect thereto shall continue to be allocated and paid in accordance with the Transaction Documents. (ii) In the event that pursuant to Section 6.1(a), RPA Seller -------------- accepts a retransfer of an Ineligible Receivable as a result of a breach of the representations and warranties relating to such Receivable, then, in any such event, RPA Seller agrees to instruct the Servicer to allocate payments received in respect of the Account giving rise to such Receivable first to the total amount of Principal Receivables of the appropriate Obligor retained by Buyer or its assigns and thereafter to the total amount owing by such Obligor on any Ineligible Receivable retransferred to RPA Seller. (o) Delivery of Collections. RPA Seller agrees to pay to the Servicer ----------------------- (if the Servicer is not then FCNB) promptly (but in no event later than two Business Days after receipt) all Collections received by RPA Seller in respect of the Receivables. (p) Credit Adjustments. If at any time Buyer is required to make a ------------------ deposit to the Excess Funding Account on account of a Credit Adjustment, and Buyer notifies RPA Seller that Buyer does not have funds available to make such deposit, then RPA Seller shall promptly provide the amount of the required deposit to Buyer. (q) Assignment. The obligations of RPA Seller hereunder shall not be ---------- assignable nor shall any Person succeed to the obligations of RPA Seller hereunder except for mergers, consolidations, assumptions or transfers in accordance with Section 5.1(l). -------------- (r) Trust Agreement. Upon notice from the Buyer, FCNB agrees to --------------- promptly pay Buyer amounts necessary for Buyer to make its payment obligations in time pursuant to Article VII of the Trust Agreement. ----------- Section 5.2. Buyer Covenants Regarding Nondisclosure; Inspection. --------------------------------------------------- Buyer hereby covenants and agrees with RPA Seller (and agrees to cause the Receivables Trustee) not to disclose to any Person any of the account numbers or other information contained in the computer files or microfiche lists delivered to Buyer (or to Receivables Trustee if buyer so directs) pursuant to Sections -------- 2.1 and 2.2, and Section 4.2(b), 7.1(c) and 7.2(c), except (i) as is required in - --- --- -------------- ------ ------ connection with the performance of the Receivables Trustee's duties under the Servicing Agreement or in enforcing the rights of the Securityholders and (ii) such disclosures as are required upon appointment of a successor Servicer under the Servicing Agreement. Buyer -19- agrees (and shall cause the Receivables Trustee) to take such measures as shall be reasonably requested by RPA Seller to protect and maintain the security and confidentiality of such information, and in connection therewith, shall allow RPA Seller to inspect the applicable security and confidentiality arrangements from time to time in normal business hours. Buyer shall (and shall cause the Receivables Trustee to) give RPA Seller five days prior written notice of any disclosure pursuant to this Section 5.2. ----------- ARTICLE VI REPURCHASE OBLIGATION Section 6.1. Mandatory Repurchase. (a) In the event of a breach of any -------------------- representation and warranty set forth in Section 4.1(l) before the FCMT -------------- Termination Date RPA Seller shall accept a retransfer of each Principal Receivable to which such breach relates (an "Ineligible Receivable") on the date --------------------- on which such Ineligible Receivable is retransferred to Buyer under Section ------- 2.4(d) of the Pooling and Servicing Agreement on the terms and conditions set - ------ forth below. In the event that the exclusion of an Ineligible Receivable from the calculation of the Seller Amount would cause the Seller Amount to be less than the Minimum Seller Amount, RPA Seller shall pay Buyer a sufficient amount in immediately available funds in time to enable Buyer to make a deposit in the Collection Account in an amount equal to the Shortfall Amount as required under Section 2.4(d) of the Pooling and Servicing Agreement. Upon each retransfer to - -------------- RPA Seller of such Ineligible Receivable, the Buyer shall automatically and without further action be deemed to transfer, assign and set-over to RPA Seller, without recourse, representation or warranty, all the right, title and interest of the Buyer in, to and under such Ineligible Receivable, all monies due or to become due with respect thereto, all proceeds thereof and Insurance Proceeds relating thereto. The Buyer shall execute such documents and instruments of transfer and take such other actions as shall reasonably be requested by RPA Seller to effect the transfer of such Ineligible Receivable pursuant to this subsection. The obligation of RPA Seller to accept retransfer of any Ineligible Receivable shall constitute the sole remedy respecting any breach of the representations and warranties set forth in Section 4.1(l)) with respect to such --------------- Receivable available to the Buyer, Certificateholders or the Trustee on behalf of Certificateholders (as defined in the Pooling and Servicing Agreement). (b) In the event of a breach of any representation and warranty set forth in Section 4.1(l) on and after the FCMT Termination Date, then RPA Seller shall -------------- accept reassignment of all Receivables in the related Account ("Ineligible ---------- Receivables") on the terms and conditions set forth in this paragraph on the - ----------- date on which such Ineligible Receivables are reassigned to Buyer under Section ------- 2.4(d) of the Transfer - ------ -20- and Servicing Agreement. If the exclusion of an Ineligible Receivable from the calculation of the Seller Amount would cause the Seller Amount to be less than the Minimum Seller Amount, then RPA Seller shall pay Buyer a sufficient amount in immediately available funds in time to enable Buyer, on the date of retransfer of such Ineligible Receivable, to make a deposit in the Collection Account in an amount equal to the Shortfall Amount as required under Section ------- 2.4(d) of the Transfer and Servicing Agreement. The amounts so deposited are to - ------ be treated for all purposes hereof as Collections on such Ineligible Receivables. Upon reassignment of any Ineligible Receivable, the Buyer shall automatically and without further action be deemed to transfer, assign, set over and otherwise convey to RPA Seller or its designee, without recourse, representation or warranty, all the right, title and interest of the Buyer in and to such Ineligible Receivable, all Recoveries related thereto, all monies and amounts due or to become due and all proceeds thereof and such reassigned Ineligible Receivable shall be treated by the Buyer as collected in full as of the date on which it was transferred. The obligation of RPA Seller to accept reassignment of any Ineligible Receivables conveyed to the Buyer by RPA Seller, and to make payments to Buyer to enable Buyer to make the deposits, if any, required to be made to the Collection Account as provided in Section 2.4(d) of -------------- the Transfer and Servicing Agreement, shall constitute the sole remedy respecting the event giving rise to such obligation available to the Buyer. The Buyer shall execute such documents and instruments of transfer or assignment and take such other actions as shall reasonably be requested and provided by the RPA Seller to effect the conveyance of such Ineligible Receivables pursuant to this Section 6.1(b), but only upon receipt of an Officer's Certificate from RPA - -------------- Seller that states that all conditions set forth in Section 5.1 have been ----------- satisfied. (c) In the event of a breach of any representation and warranty set forth in Section 4.1(e), (j), (k) or (r) before the FCMT Termination Date, RPA Seller -------------- --- --- --- shall be obligated to accept retransfer of all of the Principal Receivables on the date on which the Receivables are retransferred to Buyer under Section ------- 2.4(e) of the Pooling and Servicing Agreement. RPA Seller shall pay Buyer a - ------ sufficient amount in immediately available funds in time to enable Buyer to deposit on the Transfer Date (as defined in the Pooling and Servcing Agreement) (in next day funds) for the related Distribution Date (as defined in the Pooling and Servcing Agreement) an amount equal to the deposit amount as required under Section 2.4(e) of the Pooling and Servcing Agreement on the terms and conditions set forth below. On the Distribution Date following the Transfer Date on which such amount has been deposited by Buyer in full into the Distribution Account, the Receivables and all monies due or to become due with respect thereto and all proceeds of the Receivables and Insurance Proceeds relating thereto shall be transferred to RPA Seller, and the Buyer shall execute and deliver such instruments of transfer, in each case without recourse, representation or warranty, as shall be reasonably requested by RPA Seller -21- to vest in RPA Seller, or its designee or assignee, all right, title and interest of the Buyer in, to and under the Receivables, all monies due or to become due with respect thereto (including all Finance Charge Receivables) and all proceeds thereof and Insurance Proceeds relating thereto. If RPA Seller is obligated to accept a retransfer as provided above, the obligation of RPA Seller to accept a retransfer of the Receivables pursuant to Section 6.1(c) shall ------------- constitute the sole remedy respecting a breach of the representations and warranties contained in Section 4.1(e) available to the Buyer. ------------- (d) On and after the FCMT Termination Date, if any representation or warranty of a RPA Seller set forth in Section 4.1(e), (j), (k) or (s) is not ------------- - - - true and correct in any material respect, RPA Seller shall be obligated to accept such reassignment on the date on which the Receivables are reassigned to Buyer under Section 2.4(e) of the Transfer and Servicing Agreement on the terms ------------- set forth in this paragraph. RPA Seller shall pay Buyer a sufficient amount in immediately available funds in time to enable Buyer to deposit in the Collection Account in immediately available funds not later than 1:00 p.m., New York City time, on the Transfer Date for the first Distribution Date following the Monthly Period in which the reassignment obligation arises under Section 2.4(e) of the ------------- Transfer and Servicing Agreement, in payment for such reassignment, an amount equal to the deposit amount for the reassignment as required under Section ------- 2.4(e) of the Transfer and Servicing Agreement. If RPA Seller is obligated to - ------ accept a reassignment of the Receivables as provided above, the obligation of RPA Seller to accept such reassignment pursuant to this Section 6.1(d) and to ------------- make payments to Buyer to enable Buyer to make the deposit required to be made to the Collection Account as provided in Section 2.4(e) of the Transfer and -------------- Servicing Agreement shall constitute the sole remedy respecting an event of the type specified in the first sentence of this Section 6.1(d) available to the ------------- Buyer. Upon reassignment of the Receivables on such Distribution Date, the Buyer shall automatically and without further action be deemed to sell, transfer, assign, set-over and otherwise convey to the RPA Seller, without recourse, representation or warranty, all the right, title and interest of the Buyer in and to the Receivables and Recoveries allocable to the Buyer, and all monies and amounts due or to become due with respect thereto and all proceeds thereof. The Buyer shall execute such documents and instruments of transfer or assignment and take such other actions as shall reasonably be requested by the RPA Seller to effect the conveyance of such property pursuant to this Section. Section 6.2. Optional Repurchases. (a) Buyer shall have the option to -------------------- require RPA Seller to repurchase all of Buyer's rights, titles, and interests in, to, and under all Receivables transferred by RPA Seller hereunder and created pursuant to certain Accounts designated by Buyer (the "Removed ------- Accounts"); provided that, Buyer shall only be entitled to require such - -------- -------- ---- repurchase (i) if Buyer is able to effect a retransfer of such Receivables from the Receivables Trust in compliance with -22- Section 2.7 of the Servicing Agreement, and (ii) if Buyer and both RPA Seller - ----------- mutually agree as to the designation of the Removed Accounts. On or before the fifth Business Day (the "Repurchase Notice Date") prior to the date on which the ---------------------- Removed Accounts will be designated by Buyer, Buyer shall give RPA Seller written notice of its election to require RPA Seller to so repurchase the Receivables of the Removed Accounts on the date specified in such notice (the "Repurchase Date"). The Repurchase Price for an optional repurchase effected --------------- pursuant to this Section 6.2(a) shall be for Receivables purchased pursuant to ------------- Section 2.7 of the Servicing Agreement, an amount equal to the total recorded - ----------- unpaid balance of such repurchased Receivables (including Principal Receivables and Finance Charge Receivables) on the Repurchase Date. Upon execution and delivery of any Reconveyance effecting any repurchase as contemplated in this Section 6.2(a), Buyer shall have no further right, title, or interest in any - ------------- Receivables from the Removed Accounts. (b) Payment of the Repurchase Price as specified in Section 6.2(a) above -------------- may be made, at the option of the RPA Seller: (i) in immediately available funds; (ii) as a reduction in RPA Seller's interest in and to any participation interest in the Seller Interest in an amount equal to the unpaid portion of the Repurchase Price; or (iii) any combination of the foregoing; provided, however, -------- ------- that RPA Seller must make payment of a sufficient portion of the Repurchase Price in immediately available funds in time to enable Buyer to make any cash payment to the Receivables Trust then required under the Servicing Agreement. Section 6.3. Conveyance of Repurchased Receivables. On or prior to the date ------------------------------------- that RPA Seller is required to repurchase Receivables under Section 6.1, or on ----------- the date RPA Seller is permitted to purchase any Receivables under Section 6.2, ----------- or on any Repurchase Date, as the case may be, Buyer shall execute and deliver to RPA Seller a Reconveyance substantially in the form and upon the terms of Exhibit B, pursuant to which Buyer conveys to RPA Seller all of Buyer's right, - --------- title, and interest in the Receivables to be repurchased by such seller and, with respect to repurchases effected pursuant to Section 6.2, within three ----------- Business Days thereafter, Buyer shall deliver to RPA Seller a computer file or microfiche list containing a true and complete list of all Removed Accounts identified by account number and the aggregate Receivable balances to be repurchased by RPA Seller in such Removed Accounts as of the Repurchase Notice Date. Buyer shall (and shall cause the Receivables Trustee to) execute such other documents or instruments of conveyance or take such other actions as RPA Seller may reasonably require to effect any repurchase of Receivables pursuant to this Article VI. ---------- Section 6.4. Selection of Removed Accounts. By giving the written notice on ----------------------------- the Repurchase Notice Date as required in Section 6.2 and by acceptance of the ----------- Reconveyance, RPA Seller represents and warrants that no selection procedures -23- reasonably believed by RPA Seller to be materially adverse to the interests of Buyer or the holders of the Securities were utilized in selecting the Removed Accounts. ARTICLE VII CONDITIONS PRECEDENT Section 7.1. Conditions to Buyer's Obligations Regarding Initial --------------------------------------------------- Receivables. The obligations of Buyer to purchase the Transferred Assets on the - ----------- RPA Closing Date shall be subject to the satisfaction of the following conditions: (a) All representations and warranties of RPA Seller contained in this Agreement shall be true and correct on the RPA Closing Date with the same effect as though such representations and warranties had been made on such date; (b) All information concerning the Accounts provided to Buyer shall be true and correct as of the RPA Closing Date in all material respects; (c) RPA Seller shall have delivered or caused to be delivered to Buyer a computer file or microfiche list containing a true and complete list of all Accounts identified by account number and by the Receivables balance as of the RPA Closing Date, and RPA Seller shall have substantially performed all other obligations required to be performed by the provisions of this Agreement; (d) RPA Seller shall have recorded and filed, at its expense, any financing statement with respect to the Receivables (other than Receivables in Additional Accounts) now existing and hereafter created for the transfer of accounts meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the sale of the Receivables to Buyer, and shall have delivered a file-stamped copy of such financing statements or other evidence of such filings (which may, for purposes of this paragraph, consist of telephone confirmations of such filings) to Buyer; (e) All corporate and legal proceedings and all instruments in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to Buyer, and Buyer shall have received from RPA Seller copies of all documents (including records of corporate proceedings) relevant to the transactions herein contemplated as Buyer may reasonably have requested. Section 7.2. Conditions to Buyer's Obligations Regarding Supplemental -------------------------------------------------------- Conveyances. The obligations of Buyer to purchase any Receivables created under - ----------- -24- any Additional Accounts shall be subject to the satisfaction of the following conditions: (a) All representations and warranties of RPA Seller contained in this Agreement shall be true and correct on the Addition Date with the same effect as though such representations and warranties had been made on such date; (b) All information concerning the Additional Accounts provided or to be provided to Buyer shall be true and correct in all material respects as of the Addition Date with respect to Additional Accounts added pursuant to Section ------- 2.2(a) and as of the fifth Business Day after the first day of the calendar - ----- month occurring after any Addition Date arising under Section 2.2(c); ------------- (c) On or before each Addition Date with respect to Additional Accounts added pursuant to Section 2.2(a) and on or before the fifth Business Day after ------------- the first day of the Monthly Period occurring after any Addition Date arising under Section 2.2(c): (i) RPA Seller shall have indicated or caused to be ------------- indicated in the computer files of the Receivables that Receivables created in respect of the Additional Accounts have been sold to Buyer in accordance with this Agreement and transferred to the Receivables Trust pursuant to the Servicing Agreement for the benefit of the Securityholders; (ii) RPA Seller shall have delivered or caused to be delivered to Buyer (or to the Receivables Trustee, if so directed by Buyer) a computer file or microfiche list containing a true and correct list of all such Additional Accounts, identified by account number and by the Receivable balance as of the Addition Date for Additional Accounts added pursuant to Section 2.2(a) or as of such fifth Business Day of a ------------- Monthly Period with respect to Additional Accounts added pursuant to Section ------- 2.2(c); and (iii) RPA Seller shall have substantially performed all other - ----- obligations required to be performed by the provisions of this Agreement; (d) RPA Seller shall have executed and delivered a Supplemental Conveyance in conformance with the requirement of Section 2.2; and ----------- (e) RPA Seller shall have recorded and filed, at its expense, any financing statement with respect to the Receivables in such Additional Accounts now existing and hereafter created in connection with the transfer of accounts meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the sale of the Receivables to Buyer, and shall have delivered a file-stamped copy of such financing statements or other evidence of such filings (which may, for purposes of this paragraph, consist of telephone confirmations of such filings) to Buyer. Section 7.3. Conditions Precedent to RPA Seller's Obligations. The ------------------------------------------------ obligations of RPA Seller to sell the Transferred Assets on the RPA Closing Date -25- and on any Addition Date shall be subject to the satisfaction of the following conditions: (a) All representations and warranties of Buyer contained in this Agreement shall be true and correct with the same effect as though such representations and warranties had been made on such date; (b) Payment or provision for payment of the Purchase Price shall have been made in accordance with the provisions of Sections 3.3 and 3.4. ------------ --- (c) All corporate and legal proceedings and all instruments in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to RPA Seller, and RPA Seller shall have received from Buyer copies of all documents (including records of corporate proceedings) relevant to the transactions herein contemplated as the sellers may reasonably have requested. ARTICLE VIII TERM & TERMINATION Section 8.1. Term. This Agreement shall commence as of the date of ---- execution and delivery hereof and shall continue in full force and effect until: (a) the Receivables Trust terminates; or (b) upon the occurrence of any of the following events: Buyer or RPA Seller shall (i) become insolvent, (ii) fail to pay its debts generally as they become due, (iii) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, (iv) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, (1) within 10 Business Days after Buyer or RPA Seller, as applicable, has knowledge of such proceeding or the filing thereof either (x) the petition instituting same has not been dismissed or (y) an order has not been entered by the court having jurisdiction which allows continued transfer to the Receivables Trust or Buyer, as applicable, of Principal Receivables, in the case of RPA Seller's involuntary petition with no adverse effect to either Buyer, the Receivables Trust or the Securityholders, and in the case of Buyer's involuntary petition with no adverse effect to either the Receivables Trust or the Securityholders, or (2) an order as contemplated in (1)(y) above having previously been entered, is no longer in effect other than by reason of the termination of such proceeding; provided, however, that Buyer -------- ------- shall have no duty to continue to purchase Receivables or accept designation of Additional Accounts from and after the filing of an involuntary petition but prior to dismissal; or (v) become unable for any reason to convey or reconvey Receivables in accordance with the provisions of this Agreement; provided, -------- however, that the termination of this Agreement pursuant to this Section 8.1(b) - ------- -------------- shall not discharge any Person from any -26- obligations incurred prior to such termination, including any obligations with respect to Receivables sold prior to such termination. Notwithstanding anything contained herein to the contrary, upon any termination of this Agreement, Buyer shall not purchase Receivables created or accept Additional Accounts designated on or after the date of such termination. Section 8.2. Effect of Termination. No termination or rejection or failure --------------------- to assume the executory obligations of this Agreement upon the bankruptcy of RPA Seller or Buyer shall be deemed to impair or affect the obligations pertaining to any executed sale or executed obligations, including pre-termination breaches of representations and warranties by RPA Seller or Buyer. Without limiting the foregoing, prior to termination, neither the failure of RPA Seller to deliver or cause to be delivered computer records of Additional Accounts or Settlement Statements, nor the failure of Buyer to pay a Settlement Statement shall render such transfer or obligation executory, nor shall the continued duties of the parties pursuant to Section 5 or Section 9.1 of this Agreement render an --------- ----------- executed sale executory. ARTICLE IX MISCELLANEOUS PROVISIONS Section 9.1. Amendment. This Agreement and the other Conveyance Papers and --------- the rights and obligations of the parties hereunder may not be changed orally, but only by an instrument in writing signed by Buyer and RPA Seller, with prior notice to the Rating Agencies, in accordance with this Section 9.1. This ----------- Agreement and any other Conveyance Papers may be amended from time to time by Buyer and RPA Seller to correct or supplement any provisions herein or in any other Conveyance Papers which may be inconsistent with any other provisions herein or to add any other provisions with respect to matters or questions arising under this Agreement or any other Conveyance Papers which shall not be inconsistent with the provisions of this Agreement or any other Conveyance Papers; provided, however, that such action shall not adversely affect in any -------- ------- material respect the interests of the Receivables Trustee for the benefit of the Securities, unless the Receivables Trustee shall consent thereto. Any Supplemental Conveyance or Reconveyance executed in accordance with the provisions hereof shall not be considered amendments to this Agreement. Any amendment that modifies the Purchase Price or any right or obligation of Buyer or RPA Seller must satisfy the Rating Agency Condition. Section 9.2. Governing Law. This Agreement and the other Conveyance Papers ------------- shall be construed in accordance with the laws of the State of Illinois, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. -27- Section 9.3. Notices. All demands, notices and communications hereunder ------- shall be in writing and shall be deemed to have been duly given if personally delivered at or mailed by registered mail, return receipt requested, to (a) in the case of RPA Seller, First Consumers National Bank, 9300 S.W. Gemini Drive, Beaverton, Oregon 97005, Attn: President, or (b) in the case of Buyer, First Consumers Credit Corporation 400 West 9/th/ Street, Suite 302D, Wilmington, Delaware, 19801, Attn.: Treasurer; or, as to each party, at such other address as shall be designated by such party in a written notice to each other party. Section 9.4. Severability of Provisions. If any one or more of the -------------------------- covenants, agreements, provisions or terms of this Agreement or any other Conveyance Paper shall for any reason whatsoever be held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions, or terms of this Agreement or any other Conveyance Paper and shall in no way affect the validity or enforceability of the other provisions of this Agreement or of any other Conveyance Paper. Section 9.5. Assignment. Notwithstanding anything to the contrary contained ---------- herein, other than the assignments referred to in Section 9.6, this Agreement ----------- and all other Conveyance Papers may not be assigned by the parties hereto. Section 9.6. Acknowledgment and Agreement of RPA Seller. By execution ------------------------------------------ below, RPA Seller expressly acknowledge and agree that all of Buyer's rights under this Agreement relating to Transferred Assets purchased pursuant to this Agreement shall be assigned by Buyer to the Receivables Trust and, after the FCMT Termination Date, shall be collaterally assigned by the Receivables Trust to the Indenture Trustee, in each case for the benefit of the Securityholders, and RPA Seller consents to such assignments. Section 9.7. Further Assurances. Buyer and RPA Seller agree to do and ------------------ perform, from time to time, any and all acts and to execute any and all further instruments required or reasonably requested by the other party more fully to effect the purposes of this Agreement and the other Conveyance Papers, including the execution of any financing statements or continuation statements or equivalent documents relating to the Receivables for filing under the provisions of the applicable UCC or other law of any applicable jurisdiction. Section 9.8. No Waiver; Cumulative Remedies. No failure to exercise and no ------------------------------ delay in exercising, on the part of Buyer and RPA Seller, any right, remedy, power or privilege hereunder, shall operate a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. -28- The rights, remedies, powers and privileges herein provided are cumulative and not exhaustive of any rights, remedies, powers and privileges provided by law. Section 9.9. Counterparts. This Agreement and all other Conveyance Papers ----------- may be executed in two or more counterparts (and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one and the same instrument. Section 9.10. Binding Effect; Third-Party Beneficiaries. This Agreement and ----------------------------------------- the other Conveyance Papers will inure to the benefit of and be binding upon the parties hereto, and their respective successors and permitted assigns. The Receivables Trust, the Receivables Trustee and all holders of the Securities shall be considered third-party beneficiaries of this Agreement. Section 9.11. Merger and Integration. Except as specifically stated ---------------------- otherwise herein, this Agreement and all the other Conveyance Papers set forth the entire understanding of the parties relating to the subject matter hereof, and all prior understandings, written or oral, are superseded by this Agreement and all the other Conveyance Papers. This Agreement and the other Conveyance Papers may not be modified, amended, waived or supplemented except as provided herein. Section 9.12. Headings. The headings herein are for purposes of reference -------- only and shall not otherwise affect the meaning or interpretation of any provision hereof. Section 9.13. Schedules and Exhibits. The schedules and exhibits attached ---------------------- hereto and referred to herein shall constitute a part of this Agreement and are incorporated into this Agreement for all purposes. -29- IN WITNESS WHEREOF, Buyer and RPA Seller have caused this Agreement to be duly executed by their respective officers as of the day and year first written above. FIRST CONSUMERS CREDIT CORPORATION Name:_____________________________ Name: John R. Steele Title: Treasurer FIRST CONSUMERS NATIONAL BANK Name:_____________________________ Name: John R. Steele Title: Treasurer Signature page to Receivables Purchase Agreement -30- SCHEDULE ONE to RECEIVABLES PURCHASE AGREEMENT Accounts - -------- As contained on an appropriately Labeled Computer Record Delivered Contemporaneously with this Agreement. Aggregate Receivables as of the RPA Closing Date: $______________ Aggregate Principal Balance as of the RPA Closing Date: $______________ SCHEDULE TWO to RECEIVABLES PURCHASE AGREEMENT Buyer's Chief Executive Office: 400 West 9/th/ Street Suite 302D Wilmington, Delaware 19801 State of organization: Delaware RPA Seller's Chief Executive Office: 9300 S.W. Gemini Drive Beaverton Oregon 97005 Organized as a national bank Locations Of Books And Records: 9300 S.W. Gemini Drive Beaverton, Oregon 97005 800 Pasquinelli Drive Westmont, Illinois 60522 3500 Lacey Road Downers Grove, Illinois 60515 EXHIBIT A to RECEIVABLES PURCHASE AGREEMENT FORM OF SUPPLEMENTAL CONVEYANCE ------------------------------- SUPPLEMENTAL CONVEYANCE No. ___ OF RECEIVABLES IN ADDITIONAL ACCOUNTS (the "Supplemental Conveyance"), dated as of _____________, 200_, by and between ----------------------- FIRST CONSUMERS NATIONAL BANK, a national banking association ("RPA Seller"), ---------- and FIRST CONSUMERS CREDIT CORPORATION, a Delaware corporation ("Buyer"), ----- pursuant to the Receivables Purchase Agreement referred to below. W I T N E S S E T H : - - - - - - - - - - WHEREAS, Buyer and RPA Seller are parties to the Receivables Purchase Agreement, dated as of December 31, 2001 ( the "Purchase Agreement"); ------------------ WHEREAS, pursuant to Section 2.2 of the Purchase Agreement, (i) under ----------- certain conditions, RPA Seller is required to sell Receivables in Additional Accounts; or (ii) RPA Seller may designate and sell Additional Accounts to be included as Accounts; or (iii) under certain circumstances, an Eligible Account is to be automatically included as an Additional Account; WHEREAS, RPA Seller now wishes to sell the Receivables in the Additional Accounts described on Schedule 1, whether now existing or hereafter ---------- created, to Buyer; and WHEREAS, Buyer is willing to accept such sale and conveyance subject to the terms and conditions hereof; NOW THEREFORE, RPA Seller and Buyer hereby agree as follows: 1. Defined Terms. Terms used in this Supplemental Conveyance have their ------------- respective meanings set forth in the Purchase Agreement, except that "Addition -------- Date" means, with respect to the Additional Accounts added pursuant to Section - ---- ------- 2.2(a) of the Purchase Agreement and designated hereby,_______, 200_. - ------ A-1 "Notice Date" means, with respect to the Additional Accounts added pursuant ----------- to Section 2.2 of the Purchase Agreement and designated hereby,_____, 200 (which shall be a date on or before the fifth Business Day prior to the Addition Date). 2. Designation of Additional Accounts. On or prior to the Addition Date, ---------------------------------- in respect of Additional Accounts added pursuant to Section 2.2 of the Purchase ----------- Agreement and on or before five Business Days after the first day of the calendar month next succeeding the calendar month in which Additional Accounts were added pursuant to Section 2.2(c), RPA Seller shall have delivered or caused ------------- to be delivered to Buyer (or to the Receivables Trustee, if Buyer so directs) a computer file or microfiche list containing a true and complete list of all charge accounts which as of the Addition Date shall be deemed to be Additional Accounts, such Additional Accounts being identified by account number and by Receivable balance as of the Addition Date in respect of Additional Accounts added pursuant to Section 2.2(a) of the Purchase Agreement. Such list shall be -------------- marked as Schedule 1 to this Supplemental Conveyance, delivered to Buyer as ---------- confidential and proprietary and, as of the Addition Date, shall be incorporated into and made a part of this Supplemental Conveyance, the Purchase Agreement, and any other Conveyance Paper. 3. Sale of Receivables. (a) For value received, RPA Seller does hereby ------------------- sell, transfer, convey and assign to Buyer, without recourse, on and after the Addition Date, all of RPA Seller's right, title and interest in, to and under the Receivables now existing or hereafter created in the Additional Accounts designated on Schedule 1, all monies due or to become due with respect thereto ---------- (including all Finance Charge Receivables), all Collections, Recoveries and other proceeds hereof and Insurance Proceeds relating thereto. (b) In connection with such sale and conveyance, RPA Seller agrees (i) to record and file at its own expense, any financing statement for the purchase of accounts, with respect to the Receivables now existing and hereafter created in the Additional Accounts designated hereby, meeting the requirements of applicable state law and in such jurisdictions as are necessary to perfect the sale of the Receivables from RPA Seller to Buyer and the transfer of such Receivables from Buyer to the Receivables Trust, and (ii) to deliver a file-stamped copy of such financing statements or other evidence of such filings (which may, for purposes of this Section 3, consist of telephone confirmations --------- of such filings) to Buyer (or to the Receivables Trustee, if Buyer so directs) on or prior to the date of this Supplemental Conveyance. (c) In connection with such sale and conveyance, RPA Seller agrees, at its own expense, on or prior to the date of this Supplemental Conveyance to indicate or cause to be indicated in its books and records and in the computer files of the Receivables as required by the Purchase Agreement that Receivables created in A-2 connection with the Additional Accounts designated hereby have been sold to Buyer in accordance with the Purchase Agreement and transferred by Buyer to the Receivables Trust for the benefit of the Securityholders. 4. Acceptance by Buyer. Buyer hereby acknowledges its acceptance of all ------------------- right, title and interest previously held by RPA Seller in, to and under the Receivables sold and conveyed hereby. Buyer further acknowledges that, prior to or simultaneously with the execution and delivery of this Supplemental Conveyance, RPA Seller delivered or caused to be delivered to Buyer or to the Receivables Trustee the computer file or microfiche list described in Section 2 --------- of this Supplemental Conveyance. 5. Representations and Warranties of RPA Seller. RPA Seller represents -------------------------------------------- and warrants to Buyer as of the Addition Date that: (a) Legal, Valid and Binding Obligation. This Supplemental Conveyance ----------------------------------- constitutes a legal, valid, and binding obligation of RPA Seller, enforceable against RPA Seller in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and except as such enforceability may be limited by general principles of equity (whether considered in a suit or law or in equity); (b) Schedule 1. Schedule 1 to this Supplemental Conveyance and the ---------- ---------- computer file or microfiche list delivered pursuant to Section 2 of this --------- Supplemental Conveyance is an accurate and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identify of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date; (c) Eligibility of Accounts. Each Additional Account designated hereby is ----------------------- an Eligible Account; (d) Selection Procedures. The Additional Accounts were assigned randomly -------------------- to Cycles by RPA Seller and no selection procedures reasonably believed by RPA Seller to be materially adverse to the interests of Buyer or its successors and assigns were utilized in selecting the Additional Accounts designated hereby from available Eligible Accounts; (e) Insolvency. RPA Seller is not insolvent; and, after giving effect to ---------- the conveyance set forth in Section 3 of this Supplemental Conveyance, will not --------- be insolvent; (f) Valid Sale. This Supplemental Conveyance constitutes a valid sale, ---------- assignment, and conveyance or, in the case of Accounts added pursuant to Section ------- A-3 2.2(c) of the Purchase Agreement, confirmation of a valid sale, assignment, and - ----- conveyance to Buyer of all rights, title and assignment, and conveyance to Buyer of all right, title and interest of RPA Seller in, to, and under the Receivables now existing and hereafter created in respect of the Additional Accounts designated hereby, all monies due or to become due with respect thereto (including all Finance Charge Receivables) together with all Recoveries, Collections and other proceeds of such Receivables and Insurance Proceeds relating thereto. (g) Reconfirmation of Representations and Warranties. All representations ------------------------------------------------ and warranties made by RPA Seller pursuant to Section 4.1 of the Purchase ----------- Agreement remain true and correct in all respects as of the Addition Date as if made on such date. 6. Conditions Precedent. (a) The acceptance of Buyer set forth in Section -------------------- ------- 4 above and the amendment of the Purchase Agreement set forth in Section 8 below - - --------- are subject to the satisfaction by RPA Seller, on or prior to the Addition Date, of the following conditions precedent: (i) All information concerning the Additional Accounts provided or to be provided to Buyer shall be true and correct in all material respects as of the Addition Date with respect to Additional Accounts added pursuant to Section 2.2 (a) of the Purchase Agreement and as of the fifth Business Day -------------- after the first day of the calendar month occurring after any Additional Date arising under Section 2.2(c) of the Purchase Agreement; ------------- (ii) On or before each Addition Date with respect to Additional Accounts added pursuant to Section 2.2(a) of the Purchase Agreement: (i) ------------- RPA Seller shall have indicated or caused to be indicated in its books and records and in the computer files of the Receivables that Receivables created in respect of the Additional Accounts have been sold to Buyer in accordance with this Agreement for the benefit of the Securityholders, (ii) RPA Seller shall have delivered or caused to be delivered to Buyer (or to the Receivables Trustee, if so directed by Buyer) a computer file or microfiche list containing a true and correct list of all such Additional Accounts, identified by account number and by Receivable balance as of the Addition Date, (iii) RPA Seller shall have substantially performed all other obligations required to be performed by the provisions of the Purchase Agreement and this Supplemental Conveyance and (iv) RPA Seller shall have delivered to Buyer a certificate of a Vice President or more senior officer, certifying that (i) all requirements set forth in Section ------- 2.6 of the Servicing Agreement for designating Additional Accounts and --- conveying the Principal Receivables of such Accounts, whether now existing or hereafter created, have been satisfied, and (ii) each of the representations and warranties made by the RPA A-4 Seller in Section 5 is true and correct as of the Addition Date. The Buyer may conclusively rely on such Officer's Certificate, shall have no duty to make inquiries with regard to the matters set forth therein, and shall incur no liability in so relying; (iii) RPA Seller shall have recorded and filed, at its expense, all financing statements required to comply with Section 3(b) of this ----------- Supplemental Conveyance. (b) The sale by RPA Seller set forth in Section 3 and the amendment of the Purchase Agreement set forth in Section 8 are subject to the satisfaction by --------- Buyer, on or prior to the Addition Date, of the following: (i) All representations and warranties of Buyer contained in the Purchase Agreement shall be true and correct with the same effect as though such representations and warranties had been made on such date; (ii) Payment or provisions for payment of the Purchase Price by Buyer in accordance with the provisions of Section 3 of the Purchase Agreement; --------- and (iii) All corporate and legal proceedings and all instruments in connection with the transactions contemplated by this Supplemental Conveyance shall be satisfactory in form and substance to RPA Seller, and RPA Seller shall have received from Buyer copies of all documents (including records of corporate proceedings) relevant to the transactions herein contemplated as RPA Seller may reasonably have requested. 7. Additional Information. RPA Seller shall have delivered to Buyer such ---------------------- information as was reasonably requested by Buyer to satisfy itself as to the accuracy of the representation and warranty set forth in Section 5(e) of this ----------- Supplemental Conveyance. 8. Amendment of the Purchase Agreement. The Purchase Agreement is hereby ----------------------------------- amended to provide that all references therein to the "Receivables Purchase Agreement", to "this Agreement", and "herein" shall be deemed from and after the Addition Date to be a dual reference to the Purchase Agreement a supplemented by this Supplemental Conveyance. Except as expressly amended hereby, all of the representations, warranties, terms, covenants, and conditions of the Purchase Agreement shall remain unamended and shall continue to be, and shall remain, in full force and effect in accordance with its terms and except as expressly provided herein shall not constitute or be deemed to constitute a waiver of compliance with or a consent to noncompliance with any term or provision of the Purchase Agreement. A-5 9. Counterparts. This Supplemental Conveyance may be executed in two or ------------ more counterparts (and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one and the same instrument. 10. Governing Law. This Supplemental Conveyance shall be construed in ------------- accordance with the laws of the State of Illinois, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. 11. Non-Petition. RPA Seller hereby covenants and agrees that prior to the ------------ date which is one year and one day after the Scheduled Trust Termination Date, it will not institute against, or join any other person in instituting against, Buyer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under any federal or state bankruptcy or similar law. A-6 IN WITNESS WHEREOF, the undersigned have caused this Supplemental Conveyance to be duly executed and delivered by their respective duly authorized officers on the day and year first above written. FIRST CONSUMERS NATIONAL BANK By: /s/ John R. Steele ------------------ Name: John R. Steele Title: Treasurer FIRST CONSUMERS CREDIT CORPORATION By: /s/ John R. Steele ------------------ Name: John R. Steele Title: Treasurer A-7 SCHEDULE 1 ---------- TO SUPPLEMENTAL CONVEYANCE ADDITIONAL ACCOUNTS ------------------- EXHIBIT B to RECEIVABLES PURCHASE AGREEMENT FORM OF RECONVEYANCE -------------------- RECONVEYANCE No. ____ OF RECEIVABLES (this "Reconveyance"), dated as of ------------ _____________, 200__, by and between FIRST CONSUMERS CREDIT CORPORATION, a Delaware corporation, ("Buyer") and FIRST CONSUMERS NATIONAL BANK, a national ----- banking association ("RPA Seller"), pursuant to the Receivables Purchase ---------- Agreement referred to below. W I T N E S S E T H: ------------------- WHEREAS, Buyer and RPA Seller are parties to the Receivables Purchase Agreement, dated as of December 31, 2001 (the "Purchase Agreement"); ------------------ WHEREAS, pursuant to Section 6 of the Purchase Agreement (i) under certain --------- conditions, RPA Seller is required to repurchase Receivables in certain Accounts, or (ii) Buyer may designate from time to time certain Accounts for repurchase; WHEREAS, pursuant to Section 6 of the Purchase Agreement, Buyer wishes to --------- sell and convey to RPA Seller the Receivables from the Accounts listed on Schedule 1 (the "Removed Accounts"); and - ---------- ---------------- WHEREAS, RPA Seller is willing to repurchase Receivables under the Removed Accounts by payment, or provision for the payment, of the Repurchase Price therefor pursuant to Section 6 of the Purchase Agreement; --------- NOW THEREFORE, Buyer and RPA Seller hereby agree as follows: 1. Defined Terms. Capitalized terms used in this Reconveyance have their ------------- respective meanings set forth in the Purchase Agreement, except that "Repurchase ---------- Date" means, with respect to the Removed Accounts designated hereby, - ---- ____________, 200_. 2. Designation of Removed Accounts. Within three Business Days after the ------------------------------- Repurchase Date, RPA Seller shall deliver or cause to be delivered to Buyer a computer file, microfiche or written list containing a true and complete list of all Removed Accounts identified by account number and Receivable balance of such Removed Accounts as of the Repurchase Date. Such list shall be marked as Schedule 1 to this Reconveyance and shall be incorporated into and made a part - ---------- of this Reconveyance as of the Repurchase Date and of the Purchase Agreement and other Conveyance Papers. B-1 3. Conveyance of Receivables. (a) For value received, Buyer does hereby ------------------------- sell, transfer, assign, and set-over to RPA Seller, without recourse, on and after the Repurchase Date, all right, title and interest of Buyer in, to, and under the Receivables now existing and hereafter created in the Removed Accounts designated hereby, all monies due or to become due with respect thereto (including all Finance Charge Receivables), all proceeds thereof and Insurance Proceeds relating thereto. (b) In connection with such transfer, Buyer agrees to (and agrees to cause Receivables Trustee to) execute and deliver to RPA Seller on or prior to the date of this Reconveyance, a termination statement or partial release with respect to the Receivables now existing and hereafter created in the Removed Accounts designated hereby evidencing the sale and conveyance of the Receivables in the Removed Accounts and the release of all liens or security interests thereon, which shall meet the requirements of applicable state law and shall be filed in such manner and in such jurisdictions as are necessary to evidence such sale and conveyance and remove such lien. 4. Acceptance by RPA Seller. RPA Seller hereby acknowledges that, prior ------------------------ to or simultaneously with the execution and delivery of this Reconveyance, Buyer delivered or caused to be delivered to RPA Seller the computer file or microfiche list described in Section 2 of this Reconveyance. 5. Representations and Warranties of Buyer. Buyer hereby represents and --------------------------------------- warrants to RPA Seller as of the Repurchase Date: (a) Legal, Valid and Binding Obligation. This Reconveyance constitutes a ----------------------------------- legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity); and (b) Schedule 1. Schedule 1 to this Reconveyance and the computer file or ---------- ---------- microfiche list delivered pursuant to Section 2 of this Reconveyance is an --------- accurate and complete listing in all material respects of all the Removed Accounts as of the Repurchase Notice Date and the information contained therein with respect to the identity of such Removed Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Repurchase Notice Date; (c) Compliance with Servicing Agreement. Buyer has effected a retransfer ----------------------------------- from the Receivables Trust of the Receivables now existing or hereafter arising under the Removed Accounts in compliance with the provisions of the Servicing Agreement. B-2 (d) Selection Procedures. In respect of Removed Accounts designated -------------------- pursuant to Section 6.2 of the Purchase Agreement, Buyer and RPA Seller have ----------- mutually agreed as to the designation of the Removed Accounts. (e) Insolvency. As of the Repurchase Notice Date and as of the ---------- Repurchase Date, Buyer is not insolvent and the removal being made pursuant to this Reconveyance is not being made in contemplation of the Seller's insolvency. 6. Conditions Precedent. (a) The amendment of the Purchase Agreement -------------------- set forth in Section 7 is subject to the satisfaction by Buyer, on or prior to --------- the Repurchase Date, of the following conditions precedent: (i) All information concerning the Removed Accounts provided or to be provided to RPA Seller shall be true and correct in all material respects as of the Repurchase Date; (ii) Buyer shall have, and on or before the third Business Day after the Repurchase Date: (i) delivered to RPA Seller a computer file or microfiche list containing a true and correct list of all such Removed Accounts, identified by account number and by Receivable balance as of the Repurchase Date; and (ii) substantially performed all other obligations required to be performed by the provisions of this Reconveyance. (iii) Buyer shall have delivered to RPA Seller the termination statements and partial releases required to be delivered in Section ------- 3(b) of this Reconveyance. ---- (b) The amendment of the Purchase Agreement set forth in Section 7 is --------- subject to payment or provision for payment of the Repurchase Price in accordance with the provisions of Section 6 of the Purchase Agreement on or --------- prior to the Repurchase Date. 7. Amendment of the Purchase Agreement. The Purchase Agreement is ----------------------------------- hereby amended to provide that all references therein to the "Receivables Purchase Agreement", to "this Agreement" and "herein" shall be deemed from and after the Repurchase Date to be a dual reference to the Purchase Agreement as supplemented by this Reconveyance. Except as expressly amended hereby, all of the representations, warranties, terms, covenants and conditions of the Purchase Agreement shall remain unamended and shall continue to be, and shall remain, in full force and effect in accordance with its terms and except as expressly provided herein shall not constitute or be deemed to constitute a waiver of compliance with or a consent to non-compliance with any term or provision of the Purchase Agreement. 8. Counterparts. This Reconveyance may be executed in two or more ------------ counterparts (and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one and the same instrument. B-3 9. Governing Law. This Reconveyance shall be construed in accordance ------------- with the laws of the State of Illinois, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. 10. Non-Petition. RPA Seller hereby covenants and agrees that prior to ------------ the date which is one year and one day after the Scheduled Trust Termination Date, it will not institute against, or join any other person in instituting against, Buyer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under any federal or state bankruptcy or similar law. IN WITNESS WHEREOF, the undersigned have caused this Reconveyance to be duly executed and delivered by their respective duly authorized officers on the day and year first above written. FIRST CONSUMERS CREDIT CORPORATION By:__________________________________ Title: FIRST CONSUMERS NATIONAL BANK By:__________________________________ Title: B-4 SCHEDULE 1 ---------- TO RECONVEYANCE REMOVED ACCOUNTS ---------------- EXHIBIT C to RECEIVABLES PURCHASE AGREEMENT FORM OF SETTLEMENT STATEMENT FIRST CONSUMERS CREDIT CORPORATION RECEIVABLES PURCHASE AGREEMENT Current Settlement Date: _______________, 200_ Subject Period: _______________, 200_ First Consumers National Bank ("FCNB") and First Consumers Credit ---- Corporation ("Buyer"), pursuant to the Receivables Purchase Agreement (the ----- "Purchase Agreement") dated as of December 31, 2001, between FCNB and Buyer, do ------------------ hereby agree and certify as follows: 1. Capitalized terms used in this Settlement Statement have their respective meanings in the Purchase Agreement. As used herein, the term "Subject Period" means the Monthly Period immediately preceding -------------- the calendar month in which this Settlement Statement is delivered. This Settlement Statement is being delivered pursuant to Section 3.5 ----------- of the Purchase Agreement. References hereto to certain sections are references to the respective sections in the Purchase Agreement. 2. The date of this Settlement Statement is a Settlement Date under the Purchase Agreement. A. RECEIVABLES PURCHASED FROM FCNB AND PURCHASE PRICE FOR SUBJECT PERIOD 3. The aggregate unpaid balance of Receivables conveyed to Buyer by FCNB and balance of Receivables created in Accounts pursuant to the Purchase Agreement during the Subject Period was equal to ................................................ $______. 4. The portion of the amount shown in item 3 paid in cash during the Subject Period was equal to ...................... $______. 5. The portion of the amount shown in item 3 paid by note during the Subject Period was equal to ...................... $______. C-1 6. The portion of the amount shown in item 3 not paid in cash or by note during the Subject Period (item 3 minus item 4 minus item 5) is equal to ................................... $______. B. RECEIVABLES REPURCHASED BY FCNB AND REPURCHASE PRICE FOR SUBJECT PERIOD 7. The aggregate Repurchase Price of Receivables repurchased by FCNB pursuant to Section 6.1 or 6.2 of the Purchase ----------- --- Agreement during the Subject Period (the "FCNB Repurchased ---------------- Receivables") was equal to .................................. $______. ----------- 8. The portion of the Repurchase Price for the FCNB Repurchased Receivables paid in cash during the Subject Period was equal to .......................................................... $______. 9. The portion of the Repurchase Price for the FCNB Repurchased Receivables not paid in cash during the Subject Period (item 9 minus item 10) is equal to ................................ $______. In witness whereof, the undersigned have duly executed and delivered this Settlement Statement this ________ day of 200___. FIRST CONSUMERS CREDIT CORPORATION By:____________________________________ Title: FIRST CONSUMERS NATIONAL BANK By:____________________________________ Title: C-2 EXHIBIT D ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS In addition to the representations, warranties and covenants contained in the Receivables Purchase Agreement, RPA Seller hereby represents, warrants and covenants to Buyer as follows: (1) The Receivables Purchase Agreement creates a valid transfer to Buyer of all right, title and interest of RPA Seller in, to and under the Receivables conveyed to Buyer pursuant to the Receivables Purchase Agreement, and such property will be held by Buyer free and clear of any Lien, except for Liens permitted pursuant to paragraph (2) below. ------------- (2) Immediately prior to the conveyance of the Receivables pursuant to the Receivables Purchase Agreement, RPA Seller owns and has good and marketable title to the Receivables free and clear of any Lien, claim or encumbrance of any Person; provided that nothing in this paragraph (2) shall prevent or be deemed -------- ------------- to prohibit RPA Seller from suffering to exist upon any of the Receivables any Liens for any taxes if such taxes shall not at the time be due and payable or if RPA Seller shall currently be contesting the validity thereof in good faith by appropriate proceedings and shall have set aside on its books adequate reserves with respect thereto. D-1 EXHIBIT E PROVISIONS TO BE INCLUDED IN OPINION OF COUNSEL TO BE DELIVERED PURSUANT TO SUBSECTION 2.2(b) OF THE RECEIVABLES PURCHASE AGREEMENT ------------------------------ The opinions set forth below may be subject to certain qualifications, assumptions, limitations and exceptions taken or made in the opinion of RPA Seller's counsel with respect to similar matters delivered on the RPA Closing Date. 1. The Supplemental Conveyance has been duly authorized, executed and delivered by RPA Seller and constitutes the legal, valid and binding agreement of RPA Seller, enforceable against RPA Seller in accordance with its terms. 2. We have opined in a letter of even date that the Supplemental Conveyance constitutes a valid assignment of the RPA Seller's right, title and interest in, to and under the Receivables in the Additional Accounts and the related Transferred Assets. [Such opinion letter shall be substantially similar to the similar letter delivered on the RPA Closing Date.] Financing Statements having been filed in the office of the Secretary of State of Oregon, and in Washington, D.C., Buyer has acquired (based upon certificates of RPA Seller to the effect that RPA Seller has not transferred any interest in the Receivables other than to the Trustee or caused any lien to be imposed upon the Receivables) all rights, title and interest of the RPA Seller in the Transferred Assets free and clear of any Lien or interest of any Person except for Liens permitted under subsection 5.1(d) of the Receivables Purchase Agreement. 3. No filings or other action, other than the filing of the financing statement(s) referred to in such opinion (the "Financing Statements") with respect to the Buyer's security interest in such Transferred Assets, in the office of the Secretary of State of Oregon, and in Washington, D.C., are necessary to perfect or continue the perfected status of the security or other interest of the Buyer in the Transferred Assets designated by the Supplemental Conveyance, and the proceeds thereof, against third parties, except that appropriate continuation statements with respect to the Financing Statements be filed at five-year intervals to continue the perfection of such security interest. 4. The transfer of the Receivables in the Additional Accounts to the Buyer would not constitute a fraudulent conveyance of RPA Seller; provided, that this opinion numbered 4 need not be delivered if the short-term unsecured debt obligations of RPA Seller are rated at the time of such transfer at least P-3 by Moody's. E-1 EXHIBIT F FORM OF SUBORDINATED NOTE ------------------------- E-2 EX-4.6 8 dex46.txt AMENDED AND RESTATED POOLING AND SERVICING Exhibit 4.6 ----------- ================================================================================ FIRST CONSUMERS CREDIT CORPORATION Seller, FIRST CONSUMERS NATIONAL BANK Servicer and THE BANK OF NEW YORK Successor Trustee on behalf of the Certificateholders of the First Consumers Master Trust ---------- POOLING AND SERVICING AGREEMENT Dated as of September 30, 1992, amended and restated February 1, 1999 and amended and restated a second time as of December 31, 2001 ================================================================================ TABLE OF CONTENTS ----------------- Page ---- ARTICLE I DEFINITIONS Section 1.1 Definitions ........................................... 1 Section 1.2 Other Definitional Provisions ......................... 21 Section 1.3 Monthly Allocation of Finance Charge Receivables. ..... 21 ARTICLE II TRANSFER OF RECEIVABLES; ISSUANCE OF CERTIFICATES Section 2.1 Transfer of Receivables ............................... 22 Section 2.2 Acceptance by Trustee ................................. 23 Section 2.3 Representations and Warranties of Seller Relating to Seller ............................................. 24 Section 2.4 Representations and Warranties of Seller Relating to the Agreement and the Receivables .................. 26 Section 2.5 Covenants of Seller ................................... 30 Section 2.6 Addition of Accounts .................................. 32 Section 2.7 Removal of Accounts ................................... 35 Section 2.8 Discount Option ....................................... 37 ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES Section 3.1 Acceptance of Appointment and Other Matters Relating to the Servicer ....................................... 37 Section 3.2 Servicing Compensation ................................ 39 Section 3.3 Representations, Warranties and Covenants of the Servicer .............................................. 40 Section 3.4 Reports and Records for the Trustee; Bank Account Statements ............................................ 41 Section 3.5 Annual Servicer's Certificate ......................... 42 Section 3.6 Annual Independent Public Accountants' Servicing Report ................................................ 42 Section 3.7 Tax Treatment ......................................... 43 i ARTICLE IV RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION AND APPLICATION OF COLLECTIONS Section 4.1 Rights of Certificateholders .......................... 43 Section 4.2 Establishment of Investor Accounts .................... 44 Section 4.3 Collections and Allocations ........................... 46 [THE REMAINDER OF ARTICLE IV IS RESERVED AND SHALL BE SPECIFIED IN ANY SUPPLEMENTWITH RESPECT TO ANY SERIES] ....................... 49 ARTICLE V [ARTICLE V IS RESERVED AND SHALLBE SPECIFIED IN ANY SUPPLEMENTWITH RESPECT TO ANY SERIES] ...................... 49 ARTICLE VI THE CERTIFICATES Section 6.1 The Certificates ...................................... 50 Section 6.2 Authentication of Certificates ........................ 50 Section 6.3 Registration of Transfer and Exchange of Certificates . 50 Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates ..... 52 Section 6.5 Persons Deemed Owners ................................. 52 Section 6.6 Appointment of Paying Agent ........................... 53 Section 6.7 Access to List of Certificateholders' Names and Addresses ............................................. 53 Section 6.8 Authenticating Agent .................................. 54 Section 6.9 Book-Entry Certificates ............................... 55 Section 6.10 Notices to Clearing Agency ............................ 56 Section 6.11 Definitive Certificates Initially Issued as Book-Entry Certificates .......................................... 56 Section 6.12 New Issuances ......................................... 57 ARTICLE VII OTHER MATTERS RELATING TO SELLER Section 7.1 Liability of Seller ................................... 59 Section 7.2 Merger or Consolidation of, or Assumption of the Obligations of, Seller ................................ 59 Section 7.3 Limitation on Liability of Seller ..................... 60 ARTICLE VIII OTHER MATTERS RELATING TO THE SERVICER Section 8.1 Liability of the Servicer ............................ 61 ii Section 8.2 Merger or Consolidation of, or Assumption of the Obligations of, the Servicer ......................... 61 Section 8.3 Limitation on Liability of the Servicer and Others ... 61 Section 8.4 Indemnification of the Trust and the Trustee ......... 62 Section 8.5 The Servicer Not to Resign ........................... 62 Section 8.6 Access to Certain Documentation and Information Regarding the Receivables ............................ 63 Section 8.7 Delegation of Duties ................................. 63 Section 8.8 Examination of Records ............................... 63 ARTICLE IX PAY OUT EVENTS Section 9.1 Pay Out Events ....................................... 64 Section 9.2 Additional Rights Upon the Occurrence of Certain Events ............................................... 64 ARTICLE X SERVICER DEFAULTS Section 10.1 Servicer Defaults .................................... 65 Section 10.2 Trustee to Act; Appointment of Successor ............. 67 Section 10.3 Notification to Certificateholders ................... 68 Section 10.4 Waiver of Past Defaults .............................. 68 ARTICLE XI THE TRUSTEE Section 11.1 Duties of Trustee .................................... 69 Section 11.2 Certain Matters Affecting the Trustee ................ 71 Section 11.3 Trustee Not Liable for Recitals in Certificates ...... 72 Section 11.4 Trustee May Own Certificates ......................... 72 Section 11.5 Seller to Pay Trustee's Fees and Expenses ............ 72 Section 11.6 Eligibility Requirements for Trustee ................. 73 Section 11.7 Resignation or Removal of Trustee .................... 73 Section 11.8 Successor Trustee .................................... 74 Section 11.9 Merger or Consolidation of Trustee ................... 74 Section 11.10 Appointment of Co-Trustee or Separate Trustee ........ 75 Section 11.11 Tax Returns .......................................... 76 Section 11.12 Trustee May Enforce Claims Without Possession of Certificates ......................................... 76 Section 11.13 Suits for Enforcement ................................ 77 Section 11.14 Rights of Certificateholders to Direct Trustee ....... 77 Section 11.15 Representations and Warranties of Trustee ............ 77 Section 11.16 Maintenance of Office or Agency ...................... 77 Section 11.17 Requests for Agreement ............................... 78 iii ARTICLE XII TERMINATION Section 12.1 Termination of Trust ................................. 78 Section 12.2 Optional Purchase and Final Maturity Date of Investor Certificates ......................................... 78 Section 12.3 Final Distributions .................................. 80 Section 12.4 Termination Rights of the Holder of the Seller Interest ............................................. 81 ARTICLE XIII MISCELLANEOUS PROVISIONS Section 13.1 Amendment ............................................ 81 Section 13.2 Protection of Right, Title and Interest to Trust ..... 83 Section 13.3 Limitation on Rights of Certificateholders ........... 84 Section 13.4 Governing Law ........................................ 85 Section 13.5 Notices .............................................. 85 Section 13.6 Severability of Provisions ........................... 85 Section 13.7 Assignment ........................................... 85 Section 13.8 Certificates Nonassessable and Fully Paid ............ 86 Section 13.9 Further Assurances ................................... 86 Section 13.10 No Waiver; Cumulative Remedies ....................... 86 Section 13.11 Counterparts ......................................... 86 Section 13.12 Third-Party Beneficiaries ............................ 86 Section 13.13 Actions by Certificateholders ........................ 86 Section 13.14 Merger and Integration ............................... 87 Section 13.15 Headings ............................................. 87 Section 13.16 Effect on Existing Pooling Agreement ................. 87 Section 13.17 No Petition .......................................... 87 iv EXHIBITS Exhibit A: Form of Transfer Agreement of Receivables in Additional Accounts Exhibit B: Provisions to be Included in Opinion of Counsel with Respect to Additional Accounts Exhibit C: Form of Retransfer Agreement Exhibit D: Form of Monthly Servicer's Certificate Exhibit E: Form of Annual Servicer's Certificate Exhibit F: Provisions to be Included in Opinion with Respect to Amendments Exhibit G: Provisions to be Included in Annual Opinion of Counsel SCHEDULE Schedule 1 List of Accounts Schedule 2 Perfection Representations and Warranties v POOLING AND SERVICING AGREEMENT, dated as of September 30, 1992, amended and restated as of February 1, 1999, and amended and restated a second time as of December 31, 2001, by and among FIRST CONSUMERS CREDIT CORPORATION, a Delaware corporation, as Seller, FIRST CONSUMERS NATIONAL BANK, a national banking association, as Servicer, and THE BANK OF NEW YORK, a banking corporation organized and existing under the laws of New York, as Trustee. This Agreement amends and restates the Pooling and Servicing Agreement dated as of September 30, 1992, as amended and restated February 1, 1999, by and between the parties hereto (the "Existing Pooling Agreement"). -------------------------- In consideration of the mutual agreements herein contained, each party agrees as follows for the benefit of the other parties and for the benefit of the Certificateholders: ARTICLE I DEFINITIONS Section 1.1 Definitions. Whenever used in this Agreement, the following ----------- words and phrases shall have the following meanings: "Account" shall mean each MasterCard(R)* or VISA(R)* credit card ------- account established pursuant to a Cardholder Agreement, and which is identified in Schedule 1 by account number and by Receivable balance as of ---------- the Cut Off Date, or identified as of each Addition Date in each computer file or microfiche list delivered to the Trustee by Seller pursuant to Section 2.6. The term "Account" shall also be deemed to refer to an ----------- Additional Account, but only from and after the Addition Date with respect thereto, and the term "Account" shall be deemed to refer to any Removed Account prior to but not after the Removal Date with respect thereto. "Addition Date" shall mean, with respect to any Additional Accounts, ------------- either the date five Business Days after the period or date when such Additional Accounts are required or permitted to be added as Accounts pursuant to subsections 2.6(a) or (b), or the date on which such Additional ------------------ --- Accounts are automatically added as Accounts pursuant to subsection 2.6(e). ----------------- "Additional Accounts" shall mean the Accounts the receivables arising ------------------- under which are transferred to the Trust in accordance with the procedures set forth in Section 2.6. ------------ "Adjusted Investor Amount" shall have, with respect to any Series, the ------------------------ meaning specified in the related Supplement, or if no meaning for such term is specified in such Supplement, shall mean the Investor Amount for such Series. "Affiliate" of any specified Person, shall mean any other Person --------- directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Aggregate Investor Amount" shall mean, as of any date of ------------------------- determination, the sum of the Adjusted Investor Amounts of all Series issued and outstanding on such date of determination. "Aggregate Investor Percentage" with respect to Principal Receivables, ----------------------------- Finance Charge Receivables and Receivables in Defaulted Accounts, as the case may be, shall mean, as of any date of determination, the sum of such Investor Percentages ___________________ * MasterCard is a registered trademark of MasterCard International Incorporated and VISA is a registered trademark of VISA U.S.A., Inc. 2 of all Series issued and outstanding on such date of determination; provided, however, that the Aggregate Investor Percentage shall not exceed -------- ------- 100%. "Aggregate Principal Balance" shall mean, as of any time of --------------------------- determination, the sum of (a) the Aggregate Principal Receivables, (b) the amount on deposit in the Excess Funding Account (exclusive of any investment earnings on such amount) and (c) the amounts on deposit in the Principal Accounts (exclusive of any investment earnings on such amounts), in each case as of such time. "Aggregate Principal Receivables" shall mean, as of any time of ------------------------------- determination, the aggregate amount of Principal Receivables (excluding any Discount Option Receivables) as of the end of the prior day. "Aging Date" shall mean that date on which an Account is classified by ---------- the processor as past due according to a predetermined aging schedule. "Agreement" shall mean this Pooling and Servicing Agreement and all --------- amendments hereof and supplements hereto, including any Supplement. "Amortization Period" shall mean, with respect to any Series, the ------------------- period following the related Revolving Period, which shall be either the Controlled Amortization Period or the Rapid Amortization Period or any other amortization period, in each case as defined with respect to such Series in the related Supplement. "Annual Account Additions" shall mean on any date of determination, ------------------------ the number of Accounts the Receivables of which have been added to the Trust pursuant to subsections 2.6(a), (b) and (e) from and including the ------------------ --- --- first day of the eleventh Monthly Period preceding such date of determination. "Annual Quotient" shall have the meaning specified in subsection -------------- ---------- 2.6(c)(ii). ---------- "Applicants" shall have the meaning specified in Section 6.7. ---------- ----------- "Authorized Newspapers" shall mean each newspaper of general --------------------- circulation in New York, New York, or in any other place specified by Seller, printed in the English language and customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays. "Base Amount" shall mean, at any date of determination, with reference ----------- to Annual Account Additions or Quarterly Account Additions, the number of Accounts included in the Trust on the first day of the relevant measurement period before giving effect to any Accounts added to the Trust on such first day. 3 "Base Rate" shall have, with respect to any Series, the meaning --------- specified in the related Supplement. "Book-Entry Certificates" shall mean certificates evidencing a ----------------------- beneficial interest in any Investor Certificates, ownership and transfers of which shall be made through book entries by a Clearing Agency as described in Section 6.9; provided, that after the occurrence of a ----------- -------- condition whereupon book-entry registration and transfer are no longer permitted and Definitive Certificates are to be issued to the Certificate Owners, such Certificates shall no longer be "Book-Entry Certificates". "Business Day" shall mean each day which is neither a Saturday, a ------------ Sunday nor any other day on which banking institutions in New York, New York, Portland, Oregon or Chicago, Illinois (or, with respect to any Series, any additional city specified in the related Supplement) are authorized or obligated by law or required by executive order to be closed. "Cardholder Agreement" shall mean the agreement (and the related -------------------- application) for a MasterCard or VISA credit card account between any Obligor and Seller, as the same may be amended, modified or otherwise changed from time to time. "Cardholder Fees" shall mean, with respect to any Account, any fees --------------- specified in the Cardholder Agreement applicable to such Account, including without limitation, annual fees, over limit charges, late charges, returned check fees, and reinstatement charges. "Cardholder Guidelines" shall mean Seller's policies and procedures --------------------- relating to the operation of its credit card business, including, without limitation, the FCNB Credit Policy and Operations Manual or such other of its policies and procedures for determining the creditworthiness of credit card customers, the extension of credit to credit card customers, the terms on which repayments are required to be made, and relating to the maintenance of credit card accounts and collection of credit card account receivables, as said manual and such policies and procedures, as applicable, may be amended from time to time. "Carry-over Finance Charge Amount" shall have the meaning specified in -------------------------------- Section 1.3. ----------- "Cash Advance Fees" shall mean, with respect to any Account, any fees ----------------- specified in the Cardholder Agreement applicable to such Account as cash advance fees or any similar term. "Certificate" shall mean any one of the Investor Certificates of any ----------- Series. 4 "Certificateholder" or "Holder" shall mean the Person in whose name a ----------------- ------ Certificate is registered in the Certificate Register. "Certificate Interest" shall mean interest payable in respect of the -------------------- Investor Certificates of any Series pursuant to Article IV as set forth in ---------- the Supplement related to such Series. "Certificate Owner" shall mean, with respect to a Book-Entry ----------------- Certificate, the Person who is the owner of such Book-Entry Certificate, as reflected on the books of the Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency (directly or as an indirect participant, in accordance with the rules of such Clearing Agency). "Certificate Principal" shall mean principal payable in respect of the --------------------- Investor Certificates of any Series pursuant to Article IV as set forth in ---------- the Supplement related to such Series. "Certificate Rate" shall mean, with respect to any Series of ---------------- Certificates, the rate (or formula on the basis of which such rate shall be determined) per annum stated for such Series in the related Supplement, which rate shall, unless otherwise provided in such Supplement, be calculated in each case on the basis of a 360-day year consisting of twelve 30-day months, provided that, in the case of the Monthly Period in which the Certificates of a Series are first issued, such rate shall be calculated for the number of actual days from the date of issuance. "Certificate Register" shall mean the register maintained pursuant to -------------------- Section 6.3, providing for the registration of the Certificates and ----------- transfers and exchanges thereof. "Class" shall mean, with respect to any Series, any one or more of the ----- classes of Certificates of such Series as specified in the related Supplement. "Clearing Agency" shall mean an organization registered as a "clearing --------------- agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. "Clearing Agency Participant" shall mean a broker, dealer, bank, other --------------------------- financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency. "Closing Date" shall mean, with respect to any Series, the date ------------ specified as such in the related Supplement. 5 "Collection Account" shall have the meaning specified in subsection ------------------ ---------- 4.2(a). ------ "Collection Subaccount" shall have the meaning specified in subsection --------------------- ---------- 4.2(a). ------ "Collections" shall mean all payments (including Insurance Proceeds ----------- and Recoveries) received by the Servicer in respect of the Receivables, in the form of cash, checks, wire transfers, Automated Teller Machine transfers, net proceeds of redemption of certificates of deposit or liquidation of bank accounts or other form of payment in accordance with the Cardholder Agreement in effect from time to time on any Receivable. A Collection processed in respect of an Account (other than a Defaulted Account) in excess of the aggregate amount of Receivables in such Account as of the Date of Processing of such Collection shall be deemed to be a payment in respect of Principal Receivables to the extent of such excess. Collections with respect to any Monthly Period shall also include the amount of Interchange (if any) allocable to any Series of Certificates pursuant to any Supplement with respect to such Monthly Period (to the extent received by the Trust and deposited into each Series Finance Charge Account or any other Series Account, as the case may be, on the Transfer Date following such Monthly Period), to be applied as if such Collections were Finance Charge Receivables for all purposes. "Collections Deposit Day" shall mean the Business Day next preceding a ----------------------- Transfer Date. "Controlled Amortization Amount" for any Series shall have the meaning ------------------------------ specified in the related Supplement. "Controlled Amortization Period" for any Series shall have the meaning ------------------------------ specified in the related Supplement. "Controlled Distribution Amount" for any Series shall have the meaning ------------------------------ specified in the related Supplement. "Corporate Trust Office" shall mean the principal office of the ---------------------- Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of the execution of this Agreement is located at 2 North LaSalle Street, Suite 1020, Chicago, IL 60602. "Credit Adjustment" shall have the meaning specified in subsection ----------------- ---------- 4.3(e). ------ "Credit Insurance" shall mean life, accident, health, disability, ---------------- involuntary unemployment or other insurance of an Obligor to Seller to insure payment of any amount owing by such Obligor under an Account and which proceeds of such 6 insurance are payable to Seller upon such Obligor's death, disability or involuntary unemployment. "Cut Off Date" shall mean September 22, 1992. ------------ "Cycle" shall mean, with respect to any Account, the monthly billing ----- cycle for such Account as determined in accordance with the Cardholder Guidelines as in effect on the date of this Agreement. "Cycle Billing Date" shall mean, with respect to any Account, each ------------------ date on which bills are processed for the Cycle which includes such Account. "Date of Collection" shall mean any date during any Monthly Period ------------------ that Collections are processed by the Servicer. "Date of Processing" shall mean, with respect to any transaction, the ------------------ date on which such transaction is first recorded on the Servicer's computer master file of accounts (without regard to the effective date of such recordation). "Debtor Relief Laws" shall mean the Bankruptcy Code of the United ------------------ States of America and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, or similar debtor relief laws from time to time in effect affecting the enforcement rights of creditors (including creditors of national banking associations) generally. "Default Amount" shall mean, with respect to any Monthly Period, the -------------- result of multiplying (i) the excess, if any, of the aggregate amount of Receivables in Defaulted Accounts charged off during such Monthly Period over Recoveries collected during such Monthly Period, times (ii) 1.00, ----- minus the percentage (expressed as a decimal) of Receivables (other than ----- Receivables in Defaulted Accounts) constituting Finance Charge Receivables determined in accordance with Section 1.3. ----------- "Defaulted Account" shall mean each Account with respect to which, in ----------------- accordance with the Cardholder Guidelines or the Servicer's customary and usual servicing procedures for servicing credit card receivables comparable to the Receivables (which shall in any event provide for charge-off in the event of delinquency of 180 days or more), the Servicer has charged off the Receivables in such Account as uncollectible; an Account shall become a Defaulted Account on the day on which such Receivables are recorded as charged off on the Servicer's computer master file of accounts (regardless of whether such Receivables are charged 7 off before or after the Cut Off Date or Addition Date of such Account, as the case may be). "Deficit Controlled Amortization Amount" for any Series shall have the -------------------------------------- meaning specified in the related Supplement. "Definitive Certificates" shall have the meaning specified in Section ----------------------- ------- 6.9. - --- "Deposit Obligation" shall mean the obligation of the Seller to make ------------------ any deposit to the Excess Funding Account pursuant to subsections 2.4(d) or ------------------ 4.3(e), and the obligation of the Servicer to make any payment or transfer of - ------ Collections to the Collection Account or Distribution Account pursuant to this Agreement. "Depository Agreement" shall mean, with respect to any Series, the -------------------- agreement (if any) among the Seller, the Trustee and the initial Clearing Agency (if any) with respect to such Series. "Determination Date" shall mean the seventh calendar day prior to each ------------------ Transfer Date. "Discount Option Date" shall mean each date on which a Discount -------------------- Percentage designated by the Seller pursuant to Section 2.8 takes effect. ----------- "Discount Option Receivable Collections" shall mean on any Date of -------------------------------------- Processing occurring in any Monthly Period succeeding the Monthly Period in which the Discount Option Date occurs, the product of (a) a fraction (i) the numerator of which is the Discount Option Receivables and (ii) the denominator of which is the Principal Receivables (including the Discount Option Receivables) in each case (for both the numerator and the denominator) at the end of the prior Date of Processing and (b) Collections of Original Principal Receivables on such Date of Processing. "Discount Option Receivables" shall have the meaning specified in --------------------------- Section 2.8. The aggregate amount of Discount Option Receivables outstanding on any Date of Processing occurring on or after the Discount Option Date shall equal the result of (a) the aggregate Discount Option Receivables at the end of the prior Date of Processing (which amount, prior to the Discount Option Date, shall be zero), plus (b) any new Discount Option Receivables created on such ---- Date of Processing, minus (c) any Discount Option Receivables Collections ----- received on such Date of Processing. Discount Option Receivables created on any Date of Processing shall mean the product of the amount of any Original Principal Receivables created on such Date of Processing and the Discount Percentage. "Discount Percentage" shall have the meaning specified in Section 2.8. ------------------- ----------- 8 "Distribution Account" shall have the meaning specified in subsection -------------------- ---------- 4.2(c). - ------ "Distribution Date" shall mean the fifteenth day of the month after the ----------------- month the Certificates are first issued and the fifteenth day of each calendar month thereafter, or, if any such fifteenth-day is not a Business Day, the next succeeding Business Day. "Eligible Account" shall mean, as of the Cut Off Date (or, with respect ---------------- to Additional Accounts, as of the relevant Notice Date in respect of Additional Accounts added pursuant to subsection 2.6 (a) or (b) or the fifth Business Day ------------------ --- prior to the relevant Addition Date in respect of Additional Accounts added pursuant to subsection 2.6(e)) each Account: ------------------ (a) which is payable in United States dollars; (b) which is serviced in any credit service center of Seller which is located in the United States; (c) the Obligor on which has provided, as its initial billing address, an address which is located in the United States or its territories or possessions; (d) which the Seller has not finally determined to be counterfeit or fraudulent; (e) which the Seller has not charged off in its customary and usual manner for charging off such Accounts as of the Cut Off Date (or, with respect to Additional Accounts as of the relevant Notice Date or Addition Date); (f) which was originated by FCNB in the ordinary course of business, unless the Rating Agency Condition has otherwise been satisfied with respect to such Account; (g) as to which the Seller has good title, and which has not been sold or pledged to any other party; (h) which does not have receivables which have been sold or pledged to any other party other than Seller pursuant to the Receivables Purchase Agreement; and (i) is a "VISA" or "MasterCard" revolving credit card account. "Eligible Deposit Account" shall mean either (a) a segregated account ------------------------ with a Qualified Institution or (b) a segregated trust account with the corporate trust 9 department of a depository institution organized under the laws of the United States or any one of the states thereof, including the District of Columbia (or any domestic branch of a foreign bank), and acting as a trustee for funds deposited in such account, so long as any of the securities of such depository institution shall have a credit rating from each Rating Agency in one of its short-term credit rating categories which signifies investment grade. "Eligible Receivable" shall mean each Receivable: ------------------- (a) which has arisen under an Eligible Account; (b) which was created in compliance, in all material respects, with all Requirements of Law applicable to FCNB or the originator of the related Account pursuant to a Cardholder Agreement which complies, in all material respects, with all Requirements of Law applicable to FCNB or the originator of the related Account; (c) with respect to which all consents, licenses, approvals or authorizations of, or registrations or declarations with, any Governmental Authority required to be obtained, effected or given by FCNB or the originator of the related Account in connection with the creation of such Receivable or the execution, delivery and performance by FCNB or the originator of the related Account, as applicable, of the Cardholder Agreement pursuant to which such Receivable was created, have been duly obtained, effected or given and are in full force and effect as of such date of creation; (d) as to which, immediately prior to the transfer of same to the Trust by Seller, Seller had good and marketable title thereto free and clear of all Liens arising under or through FCNB, Seller or their respective Affiliates (other than Liens permitted pursuant to subsection 2.5(b)); ----------------- (e) which is the legal, valid and binding payment obligation of the Obligor thereon, enforceable against such Obligor in accordance with its terms, except as such enforceability may be limited by applicable Debtor Relief Laws, and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity); (f) which constitutes an "account" under and as defined in Article 9 of the UCC as then in effect in the applicable jurisdiction; (g) which, at the time of transfer to the Trust, has not been waived or modified except for a Receivable which has been waived or modified as permitted in accordance with the Cardholder Guidelines and which waiver or modification is reflected in the Servicer's computer file of revolving credit card accounts; 10 (h) which, at the time of transfer to the Trust, is not (to the knowledge of Seller or Servicer) subject to any right of rescission, setoff, counterclaim or any other defense (including defenses arising out of violations or usury laws) of the Obligor, which requires that such Receivable be charged off in accordance with the Cardholder Guidelines, other than defenses arising out of applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights in general; and (i) as to which, at the time of transfer to the Trust, each of the Seller and FCNB has satisfied all its obligations required to be satisfied by such time. "Enhancement" shall mean, with respect to any Series, the cash ----------- collateral account, letter of credit, guaranteed rate agreement, maturity guaranty facility, tax protection agreement, interest rate swap or any other contract, arrangement or agreement for the benefit of the Certificateholders of such Series (or Certificateholders of a Class within such Series), as designated in the applicable Supplement. "Enhancement Provider" shall mean, with respect to any Series, the -------------------- Person, if any, designated as such in the related Supplement. "Excess Funding Account" shall have the meaning specified in subsection ---------------------- ---------- 4.2(d). - ------ "Exchange" shall have the meaning specified in subsection 6.12(b). -------- ------------------ "Exchangeable Seller Certificate" shall mean the certificate in favor ------------------------------- of the Seller and authenticated by the Trustee, issued pursuant to this Agreement. "Exchange Date" shall have the meaning specified in Section 6.12. ------------- ------------ "Exchange Notice" shall have the meaning specified in subsection --------------- ---------- 6.12(b). - ------- "Existing Pooling Agreement" shall have the meaning specified in the -------------------------- introductory paragraph hereto. "FASIT"shall have the meaning specified in subsection 13.1(d). ----- ------------------ "FCNB" shall mean First Consumers National Bank, a national banking ---- association. "FDIC" shall mean the Federal Deposit Insurance Corporation. ---- 11 "Final Trust Termination Date" shall mean December 31, 2032. ---------------------------- "Finance Charge Accounts" shall have the meaning specified in ----------------------- subsection 4.2(b). - ----------------- "Finance Charge Collections" shall mean, for any period, the amount of -------------------------- Collections allocated to Finance Charge Receivables during such period in accordance with subsection 1.3, plus Discount Option Receivables Collections for -------------- ---- such period. "Finance Charge Receivables" shall mean, with respect to any Monthly -------------------------- Period, (a) all amounts billed to Obligors on any Account during such Monthly Period in respect of Finance Charges, Cash Advance Fees and Cardholder Fees, and (b) the amount of Interchange (if any) allocable to any Series of Certificates pursuant to any Supplement with respect to such Monthly Period. "Finance Charges" shall mean, as of any day, the amount of interest as --------------- determined by the periodic finance charge rate assessed on the Cycle Billing Date on or next preceding such day pursuant to the Cardholder Agreements. "Governmental Authority" shall mean the United States of America, any ---------------------- state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. "Indebtedness" means with respect to any Person at any date, (a) all ------------ indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than current liabilities incurred in the ordinary course of business and payable in accordance with customary trade practices) or which is evidenced by a note, bond, debenture or similar instrument, (b) all obligations of such Person under capital leases, (c) all obligations of such Person in respect of acceptances issued or created for the account of such Person and (d) all liabilities secured by any Lien on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof. "Ineligible Receivable" shall have the meaning specified in subsection --------------------- ---------- 2.4(d). - ------ "Initial Closing Date" shall mean September 30, 1992. -------------------- "Initial Investor Amount" with respect to any Series, shall have the ----------------------- meaning specified in the related Supplement. "Insolvency Event" shall have the meaning specified in Section 9.2. ---------------- ----------- 12 "Insurance Proceeds" shall mean any amounts paid to the Servicer or to ------------------ Seller pursuant to any Credit Insurance policies covering any Obligor with respect to Receivables under such Obligor's Account. "Interchange" shall mean interchange fees paid or payable to the ----------- Seller, in its capacity as credit card issuer, through MasterCard International Incorporated and/or VISA U.S.A., Inc. in connection with cardholder charges for goods and services. "Internal Revenue Code" shall mean the Internal Revenue Code of 1986, --------------------- as amended from time to time. "Investor Account" shall mean each of the Finance Charge Accounts, the ---------------- Principal Accounts, the Excess Funding Account and the Distribution Account. "Investor Amount" shall have, with respect to any Series, the meaning --------------- specified in the related Supplement. "Investor Certificate" shall mean any one of the certificates executed -------------------- and authenticated by the Trustee substantially in the form (or forms, in the case of a Series with multiple Classes) of the investor certificate attached to the related Supplement. "Investor Certificateholder" shall mean the Holder of record of an -------------------------- Investor Certificate. "Investor Charge Off" shall have, with respect to any Series, the ------------------- meaning specified in the related Supplement. "Investor Default Amount" shall have, with respect to any Series, the ----------------------- meaning specified in the related Supplement. "Investor Exchange" shall have the meaning specified in subsection ----------------- ---------- 6.12(b). - ------- "Investor Monthly Servicing Fee" shall have the meaning specified in ------------------------------ Section 3.2. - ----------- "Investor Net Recoveries" shall mean, for any Monthly Period, an amount ----------------------- equal to the product of (i) the Net Recoveries for such Monthly Period and (ii) the applicable Investor Percentage at the end of the last day of such Monthly Period. "Investor Percentage" shall have, for any Series, with respect to ------------------- Principal Collections, Finance Charge Collections and Receivables in Defaulted Accounts, the meaning specified in the related Supplement. 13 "Lien" shall mean any mortgage, deed of trust, pledge, hypothecation, ---- assignment, deposit arrangement, encumbrance, lien (statutory or other), equity interest, participation interest, preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing and the filing of any financing statement under the Uniform Commercial Code (other than any such financing statement filed for informational purposes only) or comparable law of any jurisdiction to evidence any of the foregoing; provided, however, that any assignment pursuant to Section 7.2 shall -------- ------- ----------- not be deemed to constitute a Lien. "Minimum Aggregate Principal Balance" shall mean, on any date of ----------------------------------- determination, the greater of (a) the sum of the Aggregate Investor Amount, plus the Minimum Seller Amount, in each case as of such date and (b) the sum of the Initial Investor Amounts of all Series outstanding on such date. "Minimum Average Seller Percentage" shall mean the weighted average (by --------------------------------- Adjusted Investor Amount) Minimum Seller Percentages for all Series then outstanding. "Minimum Seller Amount" shall mean, on any date of determination, the --------------------- Aggregate Investor Amount at the end of the day prior to such date of determination, times the Minimum Average Seller Percentage; provided that if -------- such percentage is zero, the Minimum Seller Amount shall be zero. FCNB may reduce the Minimum Seller Amount by written notice to the Trustee, provided that (a) the Rating Agency Condition is satisfied with respect to such reduction and (b) FCNB delivers to the Trustee an Opinion of Counsel to the effect that such reduction will not have a material adverse effect on the Federal income tax characterization of any outstanding Series. "Minimum Seller Percentage" shall have, for any Series, the meaning ------------------------- specified in the related Supplement. "Monthly Period" shall mean the period from and including the first day -------------- of the calendar month preceding a related Determination Date to and including the last day of such calendar month. "Monthly Servicing Fee" shall have the meaning specified in Section --------------------- ------- 3.2. - --- "Monthly Total Percentage Allocation" shall have, with respect to any ----------------------------------- Series, the meaning specified in the related Supplement. "Moody's" shall mean Moody's Investors Service, Inc. ------- 14 "Net Recoveries" shall mean, with respect to any Monthly Period, the -------------- excess, if any, of Recoveries collected during such Monthly Period over the ---- aggregate amount of Receivables in Defaulted Accounts charged off during such Monthly Period. "Notice Date" shall have the meaning specified in subsection 2.6(c). ----------- ----------------- "Obligor" shall mean, with respect to any Account, the Person or ------- Persons obligated to make payments with respect to such Account, including any guarantor thereof. "Officer's Certificate" shall mean a certificate signed by any officer --------------------- of Seller or the Servicer and delivered to the Trustee. "Opinion of Counsel" shall mean a written opinion of counsel, who may ------------------ be counsel for Seller or the Servicer and who shall be reasonably acceptable to the Trustee. "Optional Repurchase Percentage" shall have, with respect to any ------------------------------ Series, the meaning specified in the related Supplement. "Original Principal Receivables" shall mean Principal Receivables ------------------------------ determined without giving effect to any reduction thereof attributable to Discount Option Receivables. "Paying Agent" shall mean any paying agent appointed pursuant to ------------ Section 6.6 and shall initially be the Corporate Trust Office of the Trustee. - ----------- "Pay Out Commencement Date" shall mean, with respect to each Series, ------------------------- (a) the date on which a Trust Pay Out Event is deemed to occur pursuant to Section 9.1, or (b) the date on which a Series Pay Out Event is deemed to occur pursuant to the Supplement for such Series. "Pay Out Event" shall mean either a Trust Pay Out Event or a Series Pay ------------- Out Event. "Permitted Investments" shall mean (a) negotiable instruments or --------------------- securities represented by instruments in bearer or registered form which evidence (i) obligations of or guaranteed by the United States of America, (ii) time deposits in, certificates of deposit of, or bankers' acceptances issued by, any depositary institution or trust company (other than Seller or an Affiliate of Seller) incorporated under the laws of the United States of America or any state thereof and subject to supervision and examination by federal or state banking or depositary institution authorities, 15 provided, however, that at the time of the Trust's investment or contractual - -------- ------- commitment to invest therein, the certificates of deposit or short-term deposits, if any, or long-term unsecured debt obligations (other than such obligation whose rating is based on collateral or on the credit of a Person other than such institution or trust company) of such depositary institution or trust company shall have a credit rating from Moody's and Standard & Poor's of P-1 and A-1+, respectively, in the case of the certificates of deposit or short-term deposits, or a rating from Moody's of Aaa and from Standard & Poor's of AAA in the case of the long-term unsecured debt obligations, or such time deposits are fully insured by the FDIC, (iii) certificates of deposit (other than those of Seller or an Affiliate of Seller) having, at the time of the Trust's investment or contractual commitment to invest therein, a rating from Moody's and Standard & Poor's of P-1 and A-1+, respectively, and (iv) investments in money market funds rated in the highest investment category or otherwise approved in writing by Moody's and Standard & Poor's; (b) demand deposits in the name of the Trust or the Trustee in any depositary institution or trust company referred to in (a) (ii) above; and (c) securities not represented by an instrument, which are registered in the name of the Trustee upon books maintained for that purpose by or on behalf of the issuer thereof and identified on books maintained for that purpose by the Trustee as held for the benefit of the Trust or the Certificateholders, and consisting of shares of an open end diversified investment company which is registered under the Investment Company Act of 1940, as amended, and which (i) invests its assets exclusively in obligations of or guaranteed by the United States of America or any instrumentality or agency thereof having in each instance a final maturity date of less than one year from their date of purchase or other Permitted Investments, (ii) seeks to maintain a constant net asset value per share and (iii) has aggregate net assets of not less than $100,000,000 on the date of purchase of such shares, and which satisfies the Rating Agency Condition; provided, however, that only those investments described above which are - -------- ------- permitted to be made by a national banking association shall be deemed to be "Permitted Investments" hereunder. "Permitted Transaction" shall mean any transaction or series of related --------------------- transactions pursuant to which the Seller finances an interest in the Trust Assets and (i) as to which the Rating Agency Condition is satisfied and (ii) which in the reasonable judgment of the Seller as evidenced by an Officer's Certificate, will not have a material adverse effect on the interests of the Investor Certificateholders. "Person" shall mean any legal person, including any individual, ------ corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, governmental entity or other entity of similar nature. "Pool Factor" with respect to any Series issued in only one Class, as ----------- of any Record Date, shall mean a number rounded to seven decimals representing the ratio of the Investor Amount of such Series as of such Record Date (determined after 16 taking into account any reduction in such Investor Amount which will occur on the following Distribution Date) to the Initial Investor Amount of such Series, and with respect to any Series issued in more than one Class, shall have the meaning stated in the related Series Supplement. "Portfolio Yield" shall have, with respect to any Series, the meaning --------------- specified in the related Supplement. "Principal Accounts" shall have the meaning specified in subsection 4.2(b). ------------------ ----------------- "Principal Collections" shall mean, for any period, all Collections during --------------------- such period other than Finance Charge Collections. "Principal Receivable" shall mean each Receivable other than Finance Charge -------------------- Receivables and Receivables in Defaulted Accounts. A Principal Receivable shall be deemed to have been created at the end of the day on the Date of Processing of such Receivable. In calculating the aggregate amount of Principal Receivables on any day, the amount of Principal Receivables shall be reduced by the aggregate amount of credit balances in the Accounts on such day. Any Principal Receivables which Seller is unable to transfer as provided in subsection 2.5(c) ----------------- shall not be included in calculating the aggregate amount of Principal Receivables. "Principal Sharing Series" shall mean a Series that provides for sharing of ------------------------ Principal Collections in the related Supplement. "Principal Shortfalls" shall mean, with respect to a Distribution Date, the -------------------- aggregate amount for all outstanding Principal Sharing Series which the related Supplements specify are "Principal Shortfalls" for such Distribution Date. "Principal Terms" shall have the meaning, with respect to any Series issued --------------- pursuant to an Exchange, specified in subsection 6.12(c). ------------------ "Qualified Institution" shall have the meaning specified in subsection --------------------- ---------- 4.2(a). - ------ "Quarterly Account Additions" shall mean on any date of determination, the --------------------------- number of Accounts the Receivables of which have been added to the Trust pursuant to subsection 2.6(a), (b) or (e) during the current calendar quarter. ----------------- --- --- "Quarterly Quotient" shall have the meaning specified in subsection ------------------ ---------- 2.6(c)(ii). - ---------- "Rapid Amortization Period" for any Series shall have the meaning specified ------------------------- in the Supplement for such Series. 17 "Rating Agency" shall mean, with respect to each Series, the rating agency ------------- or agencies, if any, that initially rated the Investor Certificates of such Series, as specified in the related Supplement. "Rating Agency Condition" shall mean, with respect to any Series and any ----------------------- action or series of related actions or proposed transactions affecting such Series, that each of the Rating Agencies shall have notified the Servicer in writing that such action or series of related actions or the consummation of such proposed transaction or series of related transactions will not result in a reduction or withdrawal of such Rating Agency's rating of any Class of Certificates included in such Series. "Receivable" shall mean any amount owing by an Obligor under an Account ---------- (including amounts in Defaulted Accounts) from time to time, including, without limitation, amounts owing for the purchase of goods and services, Finance Charges, Cash Advance Fees, Cardholder Fees, Special Fees, and premiums for Credit Insurance, if any. "Receivables Purchase Agreement" shall mean the Receivables Purchase ------------------------------ Agreement, dated as of December 31, 2001, between Seller and FCNB, as amended from time to time. "Record Date" shall mean with respect to any Distribution Date the last ----------- Business Day of the preceding Monthly Period. "Recoveries" shall mean all amounts received, including Insurance Proceeds ---------- and net proceeds from the liquidation of certificates of deposit or bank accounts, by the Servicer with respect to Receivables which have previously been charged off as uncollectible, after deducting, in the case of each such amount received, a percentage of such amount which in the good faith judgment of the Servicer represents the amount of out-of-pocket costs incurred by the Servicer during the preceding fiscal year (or other, more recent period deemed appropriate by the Servicer) as a percentage of collections during such period in respect of charged off receivables in all credit card accounts (including the Accounts) serviced by the Servicer. "Removal Date" shall have the meaning specified in Section 2.7. ------------ ----------- "Removal Notice Date" shall mean the fifth Business Day prior to a Removal ------------------- Date. "Removed Accounts" shall have the meaning specified in Section 2.7. ---------------- ----------- "Requirements of Law" for any Person shall mean the certificate of ------------------- incorporation or articles of association and by-laws or other organizational or 18 governing documents of such Person, and any law, treaty, rule or regulation, or order 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, without limitation, usury laws, the Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of Governors of the Federal Reserve System). "Responsible Officer" shall mean the Chairman or any Vice Chairman of the ------------------- Board of Directors or Trustees of the Trustee, the Chairman or Vice Chairman of the Executive or Standing Committee of the Board of Directors or Trustees of the Trustee, the President, any Executive Vice President, Senior Vice President, Vice President, any Assistant Vice President, the Secretary, any Assistant Secretary , the Treasurer, any Assistant Treasurer, the Cashier, any Assistant or Deputy Cashier, any Trust Officer or Assistant Trust Officer, the Controller and any Assistant Controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above-designated officers and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer's knowledge of and familiarity with the particular subject. The term "Responsible Officer," when used herein with respect to any Person other than the Trustee, means an officer or employee of such Person corresponding to any officer or employee described in the preceding sentence. "Retransfer Agreement" shall have the meaning specified in subsection -------------------- ---------- 2.7(b)(ii). - ---------- "Revolving Period" shall have, with respect to any Series, the meaning ---------------- specified in the related Supplement. "RPA Closing Date" shall mean December 31, 2001. ---------------- "Seller" shall mean (i) before the RPA Closing Date, FCNB, and (ii) on and ------ after the RPA Closing Date, First Consumers Credit Corporation, a Delaware corporation. "Seller Amount" shall mean, on any date of determination, the Aggregate ------------- Principal Balance at the end of the day immediately prior to such date of determination, minus the Aggregate Investor Amount at the end of such day. "Seller Exchange" shall have the meaning specified in subsection 6.12(b). --------------- ------------------ "Seller Interest" shall mean the interest of the Seller in the Trust, which --------------- shall be in an amount from time to time equal to the Seller Amount. 19 "Seller Percentage" shall mean, on any date of determination, when used ----------------- with respect to Principal Collections, Finance Charge Collections and Receivables in Defaulted Accounts, the percentage equivalent of a fraction equal to 1.0, minus the fraction calculated on such date with respect to such ----- categories of Receivables in accordance with the definition of Aggregate Investor Percentage; provided, however, that the Seller Percentage shall never -------- ------- be less than zero. "Series" shall mean any series of Investor Certificates, which may include ------ within any such Series a Class or Classes of Investor Certificates subordinate to another such Class or Classes of Investor Certificates. "Series Account" shall mean, with respect to any Series, each of the -------------- accounts established and designated as such pursuant to the related Supplement. "Series Finance Charge Account" shall mean, with respect to any Series, the ----------------------------- account established and maintained by the Trustee pursuant to subsection 4.2(b) ----------------- with respect to such Series. "Series Pay Out Event" shall have, with respect to any Series, the meaning -------------------- specified in the related Supplement. "Series Principal Account" shall mean, with respect to any Series, the ------------------------ account established and maintained by the Trustee pursuant to subsection 4.2(b) ----------------- with respect to such Series. "Series Servicing Fee Percentage" shall mean, with respect to any Series, ------------------------------- the amount specified as such in the related Supplement. "Series Share" shall have the meaning specified in subsection 4.3(i). ------------ ----------------- "Series Termination Date" shall mean, with respect to any Series, the date, ----------------------- if any, specified as such in the related Supplement. "Servicer" shall mean initially FCNB and its permitted successors and -------- assigns, and thereafter any Person appointed as successor as herein provided to service the Receivables. "Servicer Default" shall have the meaning specified in Section 10.1. ---------------- ------------ "Servicing Officer" shall mean any employee of the Servicer involved in, or ----------------- responsible for, the administration and servicing of the Receivables whose name appears on a list of servicing officers furnished to the Trustee by the Servicer, as such list may from time to time be amended. 20 "Shared Finance Charge Collections" shall mean, with respect to any period, --------------------------------- the aggregate amount of Finance Charge Collections allocable to each Series which the related Supplements specify are to be treated as "Shared Finance Charge Collections" for such period. "Shared Principal Collections" shall mean, with respect to a Distribution ---------------------------- Date, the aggregate amount of Principal Collections for all outstanding Series which the related Supplements specify are to be treated as "Shared Principal Collections" for such Distribution Date. "Shortfall Amount" shall mean, on any date of determination, the amount, if ---------------- any, by which the Minimum Aggregate Principal Balance exceeds the Aggregate Principal Balance. "Special Fees" shall mean Receivables consisting of fees which are not now ------------ but may from time to time be assessed on the Accounts. "Standard & Poor's" shall mean Standard & Poor's Corporation. ----------------- "Successor Servicer" shall have the meaning specified in Section 10.2. ------------------ ------------ "Supplement" shall mean, with respect to any Series, a supplement to this ---------- Agreement complying with the terms of Section 6.12, executed in conjunction with ------------ the issuance of any Series (or, in the case of the issuance of Certificates on the Initial Closing Date, the supplement executed in connection with the issuance of such Certificates). "Termination Notice" shall have the meaning specified in Section 10.1. ------------------ ------------ "Transfer Agent and Registrar" shall have the meaning specified in Section ---------------------------- ------- 6.3 and shall initially be the Trustee's Corporate Trust Office. - --- "Transfer Agreement" shall have the meaning specified in subsection ------------------ ---------- 2.6(d)(iii). - ----------- "Transfer Date" shall mean the Business Day immediately preceding each ------------- Distribution Date. "Trust" shall mean the trust created by this Agreement and known as the ----- "First Consumers Master Trust", the corpus of which shall consist of the Receivables now existing or hereafter transferred thereto in accordance herewith and all monies due or to become due with respect thereto, all proceeds (as defined in Section 9-102 of the UCC as in effect in the applicable jurisdiction) of the Receivables and 21 Recoveries and Insurance Proceeds relating thereto and such funds and investments as from time to time are deposited or held in the Collection Account, the Collection, the Finance Charge Accounts, the Principal Accounts, the Distribution Account, the Excess Funding Account and any other Series Account, and the rights to any Enhancement with respect to any Series. "Trust Assets" shall have the meaning specified in Section 2.1. ------------ "Trust Pay Out Event" shall have, with respect to each Series, the meaning ------------------- specified in Section 9.1. ----------- "Trust Termination Date" shall have the meaning specified in subsection ---------------------- ---------- 12.1(a). - ------- "Trustee" shall mean the institution executing this Agreement as Trustee, ------- or its successor in interest, or any successor trustee appointed as herein provided. "UCC" shall mean the Uniform Commercial Code, as amended from time to time, --- as in effect in any specified jurisdiction. "Undivided Interest" shall mean the undivided interest in the Trust ------------------ evidenced by a Certificate. Section 1.2 Other Definitional Provisions. ----------------------------- (a) All terms defined in this Agreement or in any Supplement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto or thereto unless otherwise defined therein. (b) As used in this Agreement or in any Supplement and in any certificate or other document made or delivered pursuant hereto or thereto, accounting terms not defined in Section 1.1, and accounting terms partially defined in Section ----------- ------- 1.1 to the extent not defined, shall have the respective meanings given to them - --- under generally accepted accounting principles or regulatory accounting principles, as applicable. To the extent that the definitions of accounting terms herein are inconsistent with the meaning of such terms under generally accepted accounting principles or regulatory accounting principles, the definitions contained herein shall control. (c) The agreements, representations and warranties of FCNB in this Agreement and in any Supplement in its capacity as Servicer shall be deemed to be the agreements, representations and warranties of FCNB solely in such capacity for so long as it acts in each such capacity under this Agreement. 22 (d) The words "hereof", "herein" and "hereunder" and words of similar import when used in this Agreement or any Supplement shall refer to this Agreement or any Supplement as a whole and not to any particular provision of this Agreement or any Supplement; and Section, subsection, Schedule and Exhibit references contained in this Agreement or any Supplement are references to Sections, subsections, Schedules and Exhibits in or to this Agreement or any Supplement unless otherwise specified. (e) Any reference herein to any particular Rating Agency shall only be effective for so long as a Series of Certificates rated by such Rating Agency at FCNB's request is outstanding. Section 1.3 Monthly Allocation of Finance Charge Receivables. The amount of ------------------------------------------------ Finance Charge Receivables in all Accounts shall be determined as follows: (i) At the close of business on each Cycle Billing Date for any Cycle of which any Accounts are included in the Trust, the amount of Finance Charge Receivables of all Accounts in such Cycle shall be equal to (A) the amount of Finance Charges charged to all Accounts in such Cycle on such date, plus (B) the Carry-Over Finance Charge Amount for such Cycle. ---- (ii) For each Monthly Period, the amount of Collections allocated to Finance Charge Receivables for all Accounts in such Cycle shall be an amount equal to the amount of Finance Charges actually assessed on all Accounts, in accordance with the Charge Account Guidelines, on the Cycle Billing Date for such Cycle in the immediately preceding Monthly Period. (iii) If, at the close of business on the last Business Day of any Monthly Period, the amount of Collections allocated to Finance Charge Receivables for all Accounts in such Cycle during such Monthly Period is less than the amount of Finance Charge Receivables for all Accounts in such Cycle on the Cycle Billing Date for such Cycle next preceding such Monthly Period, then such deficit shall be the "Carry-Over Finance Charge Amount" for such Cycle and shall be added to the amount of Finance Charges assessed on such Billing Cycle Date pursuant to clause (i)(B) above. The Carry-Over ------------- Finance Charge Amount with respect to any Accounts shall be zero as of the Cycle Billing Date next preceding (A) the Closing Date, in the case of Accounts which are not Additional Accounts and (B) the applicable Addition Date, in the case of Additional Accounts. Notwithstanding the foregoing, the Servicer may adopt a different method of determining the amount of Finance Charge Receivables which in the good faith 23 judgment of the Servicer is designed to more accurately reflect the portions of Receivables and Collections constituting Finance Charge Receivables. ARTICLE II TRANSFER OF RECEIVABLES; ISSUANCE OF CERTIFICATES Section 2.1 Transfer of Receivables. Seller does hereby transfer, assign ----------------------- and set-over to the Trust for the benefit of the Certificateholders, without recourse, all right, title and interest of Seller in, to and under the Receivables now existing and hereafter created and arising in connection with the Accounts, all monies due or to become due with respect thereto (including all Finance Charge Receivables), all Recoveries, Collections and other proceeds thereof and Insurance Proceeds relating thereto, the rights to receive certain amounts paid or payable as Interchange (if and to the extent provided for in any Supplement), all rights to security for any Receivables (including without limitation rights to bank accounts or certificates of deposit pledged as collateral), the right to any Enhancement with respect to any Series, Transferred Assets acquired by Seller under the Receivables Purchase Agreement, rights described in clause (a)(ii) of the definition of "Existing Assets" in the -------------- Receivables Purchase Agreement, rights under the Receivables Purchase Agreement relating to assets that have been transferred or contributed under the Receivables Purchase Agreement (other than the right to acquire such assets under Sections 2.1(a) and 2.1(b) thereof) and all proceeds and products of all --------------- ------ of the foregoing (collectively, the "Trust Assets"). ------------ In connection with such transfer, Seller agrees to record and file, at its own expense, financing statements with respect to the Trust Assets, including the Receivables now existing and hereafter created for the transfer of accounts (as defined in Section 9-102 of the UCC as in effect in the applicable jurisdiction) meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the transfer of the Trust Assets from Seller to the Trust, and to deliver file-stamped copies of such financing statements or other evidence of such filings (which may, for purposes of this Section 2.1, consist of telephone confirmations of such filings) to the ----------- Trustee on or prior to the date of initial issuance of the Certificates. In connection with such transfer, Seller further agrees, at its own expense, on or prior to the Initial Closing Date (i) to indicate in its books and records, including the computer files of the Receivables, that Receivables created in connection with the Accounts have been transferred to the Trust pursuant to this Agreement for the benefit of the Certificateholders and (ii) to deliver to the Trustee a computer file or microfiche list containing a true and complete list of all such Accounts, identified by 24 account number and by the Receivables balance and Principal Receivables balance as of the Cut Off Date. Such file or list shall be marked as Schedule 1 to this ---------- Agreement, delivered to the Trustee as confidential and proprietary, and is hereby incorporated into and made a part of this Agreement. The parties intend that, in the event this Agreement shall not be effective to transfer, assign and set over to the Trustee the Trust Assets, Seller shall be deemed hereunder to have granted to the Trustee a first perfected security interest in all of the property described in the first paragraph of this Section ------- 2.1, and that this Agreement shall constitute a security agreement under - --- applicable law. Seller and Servicer acknowledge that all instruments (including certificates of deposit) and bank accounts the security interest in which has been transferred to the Trust hereby and which are maintained with Servicer or of which Servicer has possession, shall be so maintained and held by Servicer on behalf and for the benefit of the Trust, in accordance with the terms of this Agreement. Additionally, for purposes of perfecting the Trustee's security interest in bank accounts pledged to Seller, which security interest Seller has transferred to the Trustee hereunder, this Agreement constitutes and shall be deemed (i) notice to Seller and Servicer by the Trustee of the Trustee's security interest in such bank accounts, and (ii) Seller and Servicer's acknowledgment of and consent to the Trustee's notice and the Trustee's security interest in such bank accounts. By executing this Agreement and the Receivables Purchase Agreement, the parties hereto and thereto do not intend to cancel, release or in any way impair the conveyance made by FCNB, in its capacity as "Seller" under the Existing Pooling Agreement. Without limiting the foregoing, the parties hereto acknowledge and agree as follows: (i) Any transfer, assignment or other conveyance by FCNB to the Seller of assets under the Receivables Purchase Agreement shall be subject to any rights in such assets granted by FCNB, as "Seller" under the Existing Pooling Agreement, to the Trustee pursuant to the Existing Pooling Agreement. (ii) The trust created by and maintained under the Existing Pooling Agreement shall continue to exist and be maintained under this Agreement. (iii) All series of investor certificates issued under the Existing Pooling Agreement shall constitute Series issued and outstanding under this Agreement, and any supplement executed in connection with such series shall constitute a Supplement executed hereunder. 25 (iv) All references to the Existing Pooling Agreement in any other instruments or documents shall be deemed to constitute references to this Agreement. All references in such instruments or documents to FCNB in its capacity as the "Seller" of receivables and related assets under the Existing Pooling Agreement shall be deemed to include reference to the Seller in such capacity hereunder. (v) The Seller hereby assumes and agrees to perform all obligations of FCNB, in its capacity as "Seller" (but not as "Servicer"), under or in connection with the Existing Pooling Agreement (as amended and restated by this Agreement) and any supplements to the Existing Pooling Agreement, specifically including obligations under Section 2.4(d) and Section 2.4(e). For the avoidance -------------- -------------- of doubt, FCNB shall continue to be liable for all representations, warranties and covenants made by it as "Seller" under the Existing Pooling Agreement. (vi) To the extent this Agreement requires that certain actions are to be taken as of the RPA Closing Date, FCNB's execution of such action under the Existing Pooling Agreement shall constitute satisfaction of such requirement. Section 2.2 Acceptance by Trustee. --------------------- (a) The Trustee hereby acknowledges its acceptance, on behalf of the Trust, of all the property described in the first paragraph of Section 2.1, and ----------- declares that it shall maintain such right, title and interest, upon the trust herein set forth, for the benefit of all Certificateholders. The Trustee further acknowledges that, prior to or contemporaneously with the execution and delivery of this Agreement, Seller delivered to the Trustee the computer file or microfiche list described in the third paragraph of Section 2.1. ----------- (b) The Trustee hereby agrees not to disclose to any Person any of the account numbers or other information contained in the computer files or microfiche lists delivered to the Trustee by Seller pursuant to Sections 2.1 and ------------ 2.6, except as is required in connection with the performance of its duties - --- hereunder or in enforcing the rights of the Certificateholders, or to a Successor Servicer appointed pursuant to Section 10.2. The Trustee agrees to ------------ take such measures as shall be reasonably requested by Seller to protect and maintain the security and confidentiality of such information, and, in connection therewith, shall allow Seller to inspect the Trustee's security and confidentiality arrangements from time to time during normal business hours. The Trustee shall provide Seller with written notice five days prior to any disclosure pursuant to this subsection 2.2(b). ----------------- (c) The Trustee shall have no power to create, assume or incur indebtedness or other liabilities in the name of the Trust other than as contemplated in this Agreement. 26 Section 2.3 Representations and Warranties of Seller Relating to Seller. ----------------------------------------------------------- Seller hereby represents and warrants as of the Initial Closing Date that: (a) Organization and Good Standing. Seller is a corporation duly organized ------------------------------ and validly existing in good standing under the laws of the State of Delaware, and has full corporate power, authority and legal right to own its property and conduct its business as such property is presently owned and such business is presently conducted, and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement and to execute and deliver to the Trustee each Series of Certificates issued hereunder. (b) Due Qualification. The Seller is not required to qualify to do business ----------------- as a foreign corporation in any state or to obtain any licenses or approvals in any jurisdiction in order to conduct its business. (c) Due Authorization. The execution and delivery of this Agreement and the ----------------- Receivables Purchase Agreement and the consummation of the transactions provided for herein and therein have been duly authorized by Seller by all necessary corporate action on the part of Seller. (d) No Conflict. The execution and delivery of this Agreement and the ----------- Receivables Purchase Agreement, the performance of the transactions contemplated hereby and thereby and the fulfillment of the terms hereof and thereof will not conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, any indenture, contract, agreement, mortgage, deed of trust, or other instrument to which Seller is a party or by which it or any of its property is bound. (e) No Violation. The execution and delivery of this Agreement and the ------------ Receivables Purchase Agreement, the performance of the transactions contemplated hereby and thereby and the fulfillment of the terms hereof and thereof will not conflict with or violate any Requirements of Law applicable to Seller. (f) No Proceedings. There are no proceedings or investigations pending or, -------------- to the best knowledge of Seller, threatened against Seller, before any court, regulatory body, administrative agency, or other tribunal or governmental instrumentality (i) asserting the invalidity of this Agreement, the Receivables Purchase Agreement or the Certificates, (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by this Agreement, the Receivables Purchase Agreement or the Certificates, (iii) seeking any determination or ruling that, in the reasonable judgment of the Seller, would materially and adversely affect the performance by the Seller of its obligations under 27 this Agreement or the Receivables Purchase Agreement, (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement, the Receivables Purchase Agreement or the Certificates or (v) seeking to impose income taxes on the Trust (other than as a wholly-owned subsidiary of the Seller). (g) Eligibility of Accounts. As of the Cut Off Date, each Account was ----------------------- an Eligible Account. (h) All Consents Required. All approvals, authorizations, consents, --------------------- orders or other actions of any Person or of any governmental body or official required in connection with the execution and delivery of this Agreement, and the Certificates, the performance of the transactions contemplated by this Agreement, and the fulfillment of or terms hereof, have been obtained. (i) Bulk Sales. The execution, delivery and performance of this ---------- Agreement do not require compliance with any "bulk sales" law by Seller. (j) Solvency. The transactions under this Agreement do not and will -------- not render Seller insolvent, nor have such transactions been entered into in contemplation of the Seller's insolvency. (k) Selection Procedures. No selection procedures believed by Seller -------------------- to be materially adverse to the interests of the Trust or the Certificateholders were utilized by FCNB in selecting the Accounts. The representations and warranties set forth in this Section 2.3 shall survive ----------- the transfer of the respective Receivables to the Trust and termination of the rights and obligations of the Servicer pursuant to Section 10.1. Upon discovery ------------ by Seller, the Servicer or the Trustee of a breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the others and any Enhancement Provider. For the purposes of the representations and warranties contained in this Section 2.3 and ----------- made by Seller on the Initial Closing Date, "Certificates" shall mean the Certificates issued on the Initial Closing Date. The Seller hereby represents and warrants, with respect to any Series, as of its Closing Date, unless otherwise stated in the related Supplement, that the representations and warranties of the Seller set forth in this Section 2.3 will be true and correct ----------- as of such date (for the purposes of such representations and warranties, "Certificates" shall mean the Certificates issued on the related Closing Date). Section 2.4 Representations and Warranties of Seller Relating to the -------------------------------------------------------- Agreement and the Receivables. - ----------------------------- 28 (a) Binding Obligation; Valid Transfer and Security Interest. Seller -------------------------------------------------------- hereby represents and warrants as of each date the representations are made or deemed made in Sections 4.1(e), (j) and (k) of the Receivables Purchase --------------- --- --- Agreement that such representations are true and correct. Seller hereby represents and warrants to the Trust that, as of the Initial Closing Date and the RPA Closing Date and, with respect to any Series issued after the Initial Closing Date, unless otherwise stated in the related Supplement, as of the Closing Date for such Series: (i) This Agreement constitutes a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity). (ii) The representations and warranties set out in Schedule 2 ---------- are true and correct. Without limiting the generality of the foregoing, this Agreement constitutes either (A) a valid transfer to the Trust of all right, title and interest of Seller in, to and under the property described in the first paragraph of Section 2.1, and such property will ----------- be held by the Trust free and clear of any Lien of any Person claiming through or under Seller or its Affiliates, except for (x) Liens permitted under subsection 2.5(b), (y) the Seller Interest and (z) ----------------- Seller's right to receive interest accruing on, and investment earnings in respect of, the Finance Charge Accounts, the Principal Accounts and any other Investor Accounts as provided in this Agreement and any Supplement or (B) a grant of a security interest (as defined in the UCC as in effect in the applicable jurisdiction) in such property to the Trust, which is enforceable with respect to existing Receivables in the Accounts, all monies due or to become due with respect thereto, the Collections, Recoveries and other proceeds thereof, and Insurance Proceeds relating thereto upon execution and delivery of this Agreement, and which will be enforceable with respect to such Receivables hereafter arising in the Accounts, all monies due or to become due with respect thereto, the Collections, Recoveries and other proceeds thereof and Insurance Proceeds relating thereto, at the time such Receivables arise. If this Agreement constitutes the grant of a security interest to the Trust in such property, upon the filing of the financing statement described in Section 2.1 and in the case of the Receivables hereafter ----------- arising in the Accounts and proceeds thereof and Insurance Proceeds relating to such Receivables, as the same arise, the Trust shall have a first priority perfected security interest in such property, except for Liens permitted under subsection 2.5(b). Neither Seller nor any Person ----------------- claiming through or under Seller shall have any claim to or interest in the Principal Accounts, the Finance Charge Accounts or the Distribution Accounts or any other Investor Accounts, except for Seller's right to receive 29 interest accruing on, and investment earnings in respect of, the Finance Charge Accounts, Principal Accounts and any other Investor Accounts as provided in this Agreement and any Supplement, Seller's right to receive payments from the Finance Charge Accounts and Principal Accounts in accordance with the provisions of Article IV, and, if this Agreement ---------- constitutes the grant of a security interest in such property, except for the interest of Seller in such property as a debtor for purposes of the UCC as in effect in the applicable jurisdiction. (b) Eligibility of Receivables. Seller hereby represents and warrants -------------------------- as of each date the representations are made or deemed made in Section 4.1(l) of -------------- the Receivables Purchase Agreement (other than the first sentence thereof) that such representations are true and correct. Seller hereby represents and warrants to the Trust as of the Initial Closing Date that (i) each Receivable then existing is an Eligible Receivable, (ii) each Receivable then existing has been transferred to the Trust free and clear of any Lien of any Person (other than Liens permitted under subsection 2.5(b), the Seller Interest and Seller's right ----------------- to receive interest accruing on, and investment earnings in respect of, the Finance Charge Accounts, the Principal Accounts, the Excess Funding Account and any other Investor Accounts as provided in this Agreement and any Supplement) and in compliance, in all material respects, with all Requirements of Law applicable to Seller and (iii) with respect to each Receivable then existing, all consents, licenses, approvals or authorizations of or registrations or declarations with any Governmental Authority required to be obtained, effected or given by Seller in connection with the transfer of such Receivable to the Trust have been duly obtained, effected or given and are in full force and effect. On each day on which any new Receivable is transferred by Seller to the Trust, Seller shall be deemed to represent and warrant to the Trust that (i) each Receivable transferred on such day is an Eligible Receivable, (ii) each Receivable transferred on such day has been transferred to the Trust free and clear of any Lien of any Person (other than Liens permitted under subsection ---------- 2.5(b), the Seller Interest and Seller's right to receive interest accruing on, - ------ and investment earnings in respect of, the Finance Charge Accounts, the Principal Accounts and the other Investor Accounts, as provided in this Agreement and any Supplement) and in compliance, in all material respects, with all Requirements of Law applicable to Seller, (iii) with respect to each such Receivable, all consents, licenses, approvals or authorizations of or registrations or declarations with any Governmental Authority required to be obtained, effected or given by Seller or FCNB in connection with the transfer of such Receivable to the Trust have been duly obtained, effected or given and are in full force and effect and (iv) the representations and warranties set forth in subsection 2.4(a) are true and correct with respect to each Receivable ----------------- transferred on such day as if made on such day. 30 (c) Notice of Breach. The representations and warranties set forth in ---------------- this Section 2.4 shall survive the transfer of the respective Receivables to the ----------- Trust and termination of the rights and obligations of the Servicer pursuant to Section 10.1. Upon discovery by Seller, the Servicer or the Trustee of a breach - ------------ of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the others and any Enhancement Provider. (d) Transfer of Ineligible Receivables. In the event of a breach of ---------------------------------- any representation and warranty set forth in subsection 2.4(b), upon the ----------------- expiration of 30 days (or with the prior written consent of a Responsible Officer of the Trustee, such longer period, not to exceed 60 days, specified in such consent) of the earlier to occur of the discovery of such breach by Seller or receipt by Seller of written notice of such breach given by the Trustee or Servicer, Seller shall accept a retransfer of each Principal Receivable to which such breach relates (an "Ineligible Receivable") on the terms and conditions set --------------------- forth below; provided, however, that no such retransfer shall be required to be -------- ------- made with respect to such Ineligible Receivable if, on any day within such 30-day period (or such longer period as may be specified in the consent) the representations and warranties in subsection 2.4(b) of this Agreement with ----------------- respect to such Ineligible Receivable shall then be true and correct in all material respects with respect to such Ineligible Receivable as if such Ineligible Receivable had been transferred to the Seller or the Trust on such day. Notwithstanding anything contained in this subsection 2.4(d) to the ----------------- contrary, in the event of breach of any representation and warranty set forth in subsection 2.4(b), with respect to (x) each Receivable existing as of the - ----------------- Closing Date or an Addition Date, as applicable, and (y) each new Receivable thereafter arising, having been conveyed to the Seller or the Trust free and clear of any Lien of any Person claiming through or under Seller and its Affiliates and in compliance in all material respects, with all Requirements of Law applicable to FCNB or Seller, immediately upon the earliest to occur of the discovery of such breach by Seller or receipt by Seller of written notice of such breach given by the Trustee or the Servicer, Seller shall repurchase and the Trustee shall convey, without recourse, representation or warranty, all of the Trustee's right, title and interest in each Ineligible Receivable, and the Servicer shall promptly notify Moody's of such event. Seller shall accept a retransfer of each such Ineligible Receivable and there shall be deducted from the aggregate amount of Principal Receivables used to calculate the Seller Amount the face amount of each such Ineligible Receivable. On and after the date of such retransfer, each Ineligible Receivable so retransferred shall not be included in the calculation of the Investor Percentage, the Seller Percentage or the Seller Amount. In the event that the exclusion of an Ineligible Receivable from the calculation of the Seller Amount would cause the Seller Amount to be less than the Minimum Seller Amount, Seller shall make a deposit in the Collection Account in immediately available funds in an amount equal to the Shortfall Amount to the extent the Seller has received such funds from FCNB under the Receivables Purchase Agreement, and, if Seller has not received such funds, to the extent Seller 31 has funds available for such purpose after amounts payable to Securityholders (as defined in the Receivables Purchase Agreement) have been paid in full. The amounts so deposited are to be treated for all purposes hereof as Collections on such Ineligible Receivables. Such deposit shall be considered a prepayment in full of the Ineligible Receivable and shall be applied in accordance with Article IV. Upon each retransfer to Seller of such Ineligible Receivable, the - ---------- Trust shall automatically and without further action be deemed to transfer, assign and set-over to Seller, without recourse, representation or warranty, all the right, title and interest of the Trust in, to and under such Ineligible Receivable, all monies due or to become due with respect thereto, all proceeds thereof and Insurance Proceeds relating thereto. The Trustee shall execute such documents and instruments of transfer and take such other actions as shall reasonably be requested by Seller to effect the transfer of such Ineligible Receivable pursuant to this subsection. The obligation of Seller to accept retransfer of any Ineligible Receivable shall constitute the sole remedy respecting any breach of the representations and warranties set forth in subsection 2.4(b) with respect to such Receivable available to - ----------------- Certificateholders or the Trustee on behalf of Certificateholders. Each party hereto agrees that the failure by the Seller to make the deposit in accordance with this Section 2.4(d) shall not give rise to any claim against the Seller. -------------- (e) Retransfer of Trust Portfolio. In the event of a breach of any of ----------------------------- the representations and warranties set forth in subsection 2.4(a), either the ----------------- Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Investor Amount of any Series, by notice then given in writing to Seller (and to the Trustee and the Servicer, if given by the Investor Certificateholders), may direct Seller to accept retransfer of all of the Principal Receivables following the period of 45 days after such notice, or within such longer period as may be specified in such notice, and Seller shall be obligated to accept retransfer of such Receivables on a Distribution Date first occurring after such applicable period on the terms and conditions set forth below; provided, however, that no such retransfer shall be -------- ------- required to be made if, at any time during such applicable period the representations and warranties contained in subsection 2.4(a) shall then be true ----------------- and correct in all material respects. Seller shall deposit on the Transfer Date (in next day funds) for the related Distribution Date an amount equal to the deposit amount provided in the next sentence for such Receivables in the Distribution Account for distribution to the Investor Certificateholders pursuant to Section 12.3 to the extent the Seller has received such funds from ------------ FCNB under the Receivables Purchase Agreement, and, if Seller has not received such funds, to the extent Seller has funds available for such purpose after amounts payable to Securityholders (as defined in the Receivables Purchase Agreement) have been paid in full. The deposit amount for such retransfer will be equal to (i) the Aggregate Investor Amount at the end of the day on the last day of the Monthly Period preceding the Distribution Date on which the retransfer is scheduled to be made, less 32 the amount, if any, transferred to the Distribution Account on such Transfer Date for application to principal payments in respect of Investor Certificates, plus (ii) an amount equal to all interest accrued but unpaid on the Investor Certificates at the Certificate Rate through such last day, less the amount transferred to the Distribution Account from the Finance Charge Account on such Transfer Date in respect of Certificate Interest. Payment of the deposit amount and all other amounts in the Distribution Account in respect of the preceding Monthly Period shall be considered a prepayment in full of the Receivables represented by the Investor Certificates. On the Distribution Date following the Transfer Date on which such amount has been deposited in full into the Distribution Account, the Receivables and all monies due or to become due with respect thereto and all proceeds of the Receivables and Insurance Proceeds relating thereto shall be transferred to Seller, and the Trustee shall execute and deliver such instruments of transfer, in each case without recourse, representation or warranty, as shall be reasonably requested by Seller to vest in Seller, or its designee or assignee, all right, title and interest of the Trust in, to and under the Receivables, all monies due or to become due with respect thereto (including all Finance Charge Receivables) and all proceeds thereof and Insurance Proceeds relating thereto. If the Trustee or the Investor Certificateholders give a notice directing Seller to accept a retransfer as provided above, the obligation of Seller to accept a retransfer of the Receivables pursuant to this subsection 2.4(e) shall constitute the sole remedy ----------------- respecting a breach of the representations and warranties contained in subsection 2.4(a) available to the Investor Certificateholders or the Trustee on - ----------------- behalf of the Investor Certificateholders. Each party hereto agrees that the failure by the Seller to make the deposit in accordance with this Section 2.4(e) -------------- shall not give rise to any claim against the Seller. (f) Seller will not add additional RPA Seller parties to the Receivables Purchase Agreement, and not become a party to a new receivables purchase agreement, without first satisfying the Rating Agency Condition. (g) Seller will be adequately capitalized to engage in the transactions contemplated by its Certificate of Incorporation. Section 2.5 Covenants of Seller. Seller hereby covenants that: ------------------- (a) Receivables to be Accounts. Seller will take no action to cause -------------------------- any Receivable to be characterized as anything other than an "account" (as defined in the UCC as in effect in the applicable jurisdiction). Each Receivable shall be payable pursuant to a contract which does not create a Lien on any goods purchased thereunder. (b) Security Interests. Except for the transfers hereunder, Seller ------------------ will not sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume or 33 suffer to exist any Lien on any Receivable, whether now existing or hereafter transferred to the Trust, or any interest therein; Seller will immediately notify the Trustee of the existence of any Lien on any Receivable; and Seller shall defend the right, title and interest of the Trust in, to and under the Receivables, whether now existing or hereafter transferred to the Trust, against all claims of third parties; provided, however, that nothing in this subsection -------- ------- ---------- 2.5(b) shall prevent or be deemed to prohibit Seller from suffering to exist - ------ upon any of the Receivables any Liens for state, municipal or other local taxes if such taxes shall not at the time be due and payable or if Seller shall currently be contesting the validity thereof in good faith by appropriate proceedings and shall have set aside on its books adequate reserves with respect thereto; provided further, however, that nothing in this subsection 2.5(b) shall ---------------- ------- ----------------- prevent or be deemed to prohibit Seller from granting a participation interest in the Seller Interest or the Undivided Interest in the Trust evidenced thereby. (c) Account Allocations. ------------------- (1) In the event that Seller is unable for any reason to transfer Receivables to the Trust in accordance with the provisions of this Agreement (including, without limitation, by reason of the occurrence of an Insolvency Event) then, in any such event, (A) Seller agrees to instruct the Servicer to allocate and pay to the Trust, after the date of such inability, payments received in respect of the Accounts giving rise to such Receivables first to the total amount of Principal Receivables from such Accounts transferred to the Trust; and (B) Seller agrees to have such amounts applied as Collections in accordance with Article IV. If such event ---------- shall occur, it shall be deemed a Pay Out Event immediately upon the occurrence thereof. The parties hereto agree that Finance Charge Receivables, whenever created, with respect to Principal Receivables which have been transferred to the Trust shall continue to be a part of the Trust notwithstanding any cessation of the transfer of additional Principal Receivables to the Trust and Collections with respect thereto shall continue to be allocated and paid in accordance with Article IV. ---------- (ii) In the event that pursuant to subsection 2.4(d), Seller accepts a ----------------- retransfer of an Ineligible Receivable as a result of a breach of the representations and warranties in subsection 2.4(b) relating to such ----------------- Receivable, then, in any such event, Seller agrees to instruct the Servicer to allocate payments received in respect of the Account giving rise to such Receivable first to the total amount of Principal Receivables of the appropriate Obligor retained in the Trust and thereafter to the total amount owing by such Obligor on any Ineligible Receivable retransferred to Seller. 34 (d) Delivery of Collections. Seller agrees to pay to the Servicer (if the ----------------------- Servicer is not then FCNB) promptly (but in no event later than two Business Days after receipt) all Collections received by Seller in respect of the Receivables. (e) [Reserved.] -------- (f) Finance Charges and Other Fees. Seller agrees that, except as ------------------------------ otherwise required by any Requirement of Law or as is deemed by FCNB to be advisable for its MasterCard and VISA program based on a good faith assessment by FCNB of the various factors impacting the use of its MasterCard and VISA cards, FCNB shall not reduce at any time (x) the Finance Charges assessed in respect of any Accounts, or (y) any other fees charged on any of the Accounts, if as a result of such reduction, FCNB's reasonable expectation of the Portfolio Yield in respect of any Series as of such date would be less than the current Base Rate applicable to such Series. (g) Cardholder Agreements and Cardholder Guidelines. FCNB agrees to comply ----------------------------------------------- with and perform its obligations under the Cardholder Agreements relating to the Accounts and the Cardholder Guidelines and all applicable regulations of MasterCard and VISA, except insofar as any failure so to comply or conform would not materially and adversely affect the rights of the Trust or the Certificateholders hereunder or under the Certificates or any Supplement. In that regard, except as aforesaid, and so long as such changes are made applicable to the entire portfolio of MasterCard and VISA accounts owned and serviced by the Servicer which have characteristics the same as, or substantially similar to, the Accounts which are subject hereto (if any), FCNB shall be free to change the terms and provisions of such Cardholder Agreements or the Cardholder Guidelines in any respect. (h) Compliance with Law. Seller hereby agrees to comply in all material ------------------- respects with all Requirements of Law applicable to Seller. (i) Activities of Seller. Seller shall not engage in any business or -------------------- activity of any kind or enter into any transaction or indenture, mortgage, instrument, agreement, contract, lease or other undertaking which is not directly related to the transactions contemplated and authorized by this Agreement or the Receivables Purchase Agreement or which is otherwise a Permitted Transaction. (j) Indebtedness. Seller shall not create, incur, assume or suffer to ------------ exist any Indebtedness or other liability whatsoever, except (i) obligations incurred or owing to the Trust under this Agreement or the Receivables Purchase Agreement, (ii) liabilities incident to the maintenance of its corporate existence in good standing and the ownership of the Receivables, (iii) obligations incident to a Permitted Transaction 35 or (iv) obligations to FCNB or Spiegel for payment for Trust Assets acquired under the Receivables Purchase Agreement. (k) Guarantees. Seller shall not become or remain liable, directly or ---------- contingently, in connection with any Indebtedness or other liability of any other Person, whether by guarantee, endorsement (other than endorsements of negotiable instruments for deposit or collection in the ordinary course of business), agreement to purchase or repurchase, agreement to supply or advance funds, or otherwise except incident to a Permitted Transaction. (l) Investments. Seller shall not make or suffer to exist any loans or ----------- advances to, or extend any credit to, or make any investments (by way of transfer of property, contributions to capital, purchase of stock or securities or evidences of indebtedness, acquisition of the business or assets, or otherwise) in, any Person except (i) for purchases of Receivables pursuant to the Receivables Purchase Agreement, (ii) for investments in Permitted Investments in accordance with the terms of this Agreement or (iii) pursuant to a Permitted Transaction. (m) Stock; Merger; Sales. Seller shall not sell any shares of any class of -------------------- its capital stock to any Person, or enter into any transaction of merger or consolidation, or liquidate or dissolve itself (or suffer any liquidation or dissolution), or acquire or be acquired by any Person, or convey, sell, lease or otherwise dispose of any of its property or business, except as provided for in this Agreement. (n) Distributions. Seller shall not declare or pay, directly or ------------- indirectly, any dividend or make any other distribution (whether in cash or other property) with respect to the profits, assets or capital of Seller or any Person's interest therein, or purchase, redeem or otherwise acquire for value any of its capital stock now or hereafter outstanding, except that so long as no Pay Out Event has occurred and is continuing and no Pay Out Event would occur as a result thereof or after giving effect thereto, Seller may declare and pay dividends on its capital stock. (o) Agreements. Seller shall not become a party to, or permit any of its ---------- properties to be bound by, any indenture, mortgage, instrument, contract, agreement, lease or other undertaking, except this Agreement, the Receivables Purchase Agreement and the Supplements and except incidental to a Permitted Transaction or amend or modify the provisions of its certificate of Incorporation or issue any power of attorney except to the Trustee or to the Servicer. (p) Receivables Purchase Agreement. Seller shall not give any consent to ------------------------------ FCNB or exercise any of its rights under the Receivables Purchase Agreement unless the Rating Agency Condition is satisfied with respect thereto. 36 (q) Separate Corporate Existence. Seller shall: ---------------------------- (i) Maintain its own deposit account or accounts, separate from those of any Affiliate, with commercial banking institutions. The funds of Seller will not be diverted to any other Person or for other than corporate uses of Seller, except for dividends allowed under Section 2.5(m) or -------------- Section 2.5(n). -------------- (ii) Ensure that, to the extent that it shares the same officers or other employees as any of its stockholders or Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees. (iii) Ensure that, to the extent that it jointly contracts with any of its stockholders or Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that Seller contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs. All material transactions (other than this Agreement and the Receivables Purchase Agreement) between Seller and any of its Affiliates shall be only on an arm's length basis. (iv) Maintain a principal executive and administrative office through which its business is conducted separate from those of its Affiliates. To the extent that Seller and any of its stockholders or Affiliates have offices in the same location, there shall be a fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses. (v) Conduct its affairs strictly in accordance with its Certificate of Incorporation and observe all necessary, appropriate and customary corporate formalities, including, but not limited to, holding all regular and special stockholders' and directors' meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. 37 (vi) Conduct its own business in its own name. (vii) Use separate stationary, invoices and checks. (viii) Hold itself out as a separate entity. (r) Location of Records. Seller (i) shall not move outside the State of ------------------- Delaware the location of its chief executive office without 45 days' prior written notice to the Trustee and (ii) will promptly take all actions required (including but not limited to all filings and other acts necessary or advisable under the UCC of each applicable jurisdiction) in order to continue the first priority perfected ownership interest of the Certificateholders in all Receivables now owned or hereunder created. Seller will give the Trustee prompt notice of a change within the State of Delaware of the location of its chief executive office. Section 2.6 Addition of Accounts. -------------------- (a) If, on any Record Date, the Aggregate Principal Balance is less than the Minimum Aggregate Principal Balance, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Trustee written notice thereof, and as soon as practicable (but in no event later than 10 days thereafter) Seller shall designate additional Eligible Accounts ("Additional Accounts") to be included as Accounts and shall transfer the ------------------- Receivables in such Additional Accounts to the Trust, in a sufficient amount so that the Aggregate Principal Balance on such Record Date would have, if the Receivables from such Additional Accounts had been transferred to the Trust on or prior to such Record Date, at least equaled the Minimum Aggregate Principal Balance. If Seller fails to transfer Receivables as required by the preceding sentence, then the Trustee shall give Seller immediate notice thereof. (b) In addition to its obligation under subsection 2.6(a), Seller may, but ----------------- shall not be obligated to, from time to time, designate Additional Accounts to be included as Accounts. (c) Seller agrees that any Receivables from Additional Accounts shall be transferred by Seller to the Trust under subsection 2.6(a), (b) or (e) upon and ----------------- --- --- subject to the following conditions: (i) On or before the fifth Business Day (the "Notice Date") prior ----------- to the Addition Date in respect of Additional Accounts added pursuant to subsection 2.6(a) or (b), Seller shall give the Trustee and the Servicer ----------------- --- (if a Person other than Seller) written notice that such Additional Accounts will 38 be included and specifying the approximate aggregate amount of the Receivables to be transferred; (ii) Seller (A) shall transfer to the Trust Receivables only in Eligible Accounts, and (B) shall, if such designation of Additional Accounts is made pursuant to subsection 2.6(b) or (e) and the addition of ----------------- --- such Additional Accounts (1) would cause the quotient (the "Annual Quotient") of (x) the --------------- sum of the Annual Account Additions after giving effect to such addition, plus the related Base Amount, divided by (y) the related ------- -- Base Amount to exceed 1.20, or (2) would cause the quotient (the "Quarterly Quotient") of (x) ------------------ the sum of the Quarterly Account Additions after giving effect to such addition, plus the related Base Amount, divided by (y) the related ------- -- Base Amount to exceed 1.15; in either case, deliver a letter from each Rating Agency to the Trustee by the Addition Date confirming that the Rating Agency Condition has been satisfied with respect to the addition of such Additional Accounts; (iii) On or prior to the Addition Date, in respect of Additional Accounts added pursuant to subsection 2.6(a) or (b), Seller shall have ----------------- --- delivered to the Trustee a written transfer agreement (including an acceptance by the Trustee on behalf of the Trust for the benefit of the Investor Certificateholders) in substantially the form of Exhibit A (the --------- "Transfer Agreement") and shall have indicated in its books and records, ------------------ including the computer files of the Receivables, that the Receivables created in connection with the Additional Accounts have been transferred by Seller to the Trust; and shall have delivered to the Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number, and the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts added pursuant to subsection 2.6(a) or (b), which computer file or ----------------- --- microfiche list shall be marked as Schedule 1 to the Transfer Agreement, ---------- delivered to the Trustee as confidential and proprietary, shall be as of the date of such Transfer Agreement and incorporated into and made a part of such Transfer Agreement and this Agreement; (iv) Seller shall be deemed to represent and warrant that (x) each Additional Account is, as of the Addition Date, an Eligible Account, (y) no 39 selection procedures reasonably believed by Seller to be materially adverse to the interests of the Investor Certificateholders were utilized in selecting the Additional Accounts from the available Eligible Accounts, and (z) as of the Addition Date, Seller is not insolvent and will not be rendered insolvent by adding any such Additional Account to any Cycle; (v) Seller shall be deemed to represent and warrant that, as of the Addition Date, the representations and warranties set out in Schedule 2 are ---------- true and correct; and without limiting the generality of the foregoing, the Transfer Agreement constitutes either (x) a valid transfer to the Trust of all right, title and interest of Seller in, to and under the Receivables then existing and thereafter arising in respect of the Additional Accounts, all monies due or to become due with respect thereto (including all Finance Charge Receivables), and all proceeds (including, without limitation, as defined in the UCC as in effect in the applicable jurisdiction) of such Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Trust free and clear of any Lien of any Person, except for (i) Liens permitted under subsection 2.5(b), (ii) the Seller Interest and ----------------- (iii) Seller's right to receive interest accruing on, and investment earnings in respect of, the Finance Charge Accounts, the Principal Accounts and any other Investor Accounts, as provided in this Agreement and any Supplement, or (y) a grant of a security interest (as defined in the UCC as in effect in the applicable jurisdiction) in such property to the Trust, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the Trust, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Transfer Agreement constitutes the grant of a security interest to the Trust in such property, upon the filing of a financing statement as described in Section 2.1 with ----------- respect to such Additional Accounts and in the case of the Receivables of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such Receivables, upon such transfer, the Trust shall have a first priority perfected security interest in such property, except for Liens permitted under subsection 2.5(b), the Seller ----------------- Interest and Seller's right to receive interest accruing on, and investment earnings in respect of, the Finance Charge Accounts, the Principal Accounts and any other Investor Accounts, as provided in this Agreement and any Supplement; (vi) Seller shall, on the Addition Date for Additional Accounts added pursuant to subsection 2.6(a) or (b), deliver a certificate of a Vice ----------------- --- 40 President or more senior officer confirming the items set forth in clauses (ii), (iii), (iv) and (v) above; and ----------- --- -- - (vii) Seller shall, on the Addition Date for Additional Accounts added pursuant to subsection 2.6(a) or (b), deliver an Opinion of ---------------- - Counsel with respect to the Receivables in the Additional Accounts substantially in the form of Exhibit B, and which shall be reasonably --------- acceptable to the Rating Agencies. (d) Seller shall provide to each Rating Agency and to each Enhancement Provider prior written notice each time Additional Accounts are added pursuant to subsection 2.6(a) or (b). ---------------- - (e) In addition to the occasional designation of Additional Accounts as required or permitted pursuant to subsections 2.6(a) and (b) above, Seller ----------------- - agrees that each new MasterCard or VISA account originated in the normal course of FCNB's business after the Cut Off Date, where Receivables with respect to such accounts are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Trust Assets arising thereunder automatically transferred to the Trust) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to one of Seller's billing cycles; provided, however, that such -------- ------- automatic inclusion and transfer shall not occur with respect to any such account if: (i) such account does not qualify as an Eligible Account, (ii) the inclusion in the Trust of the Receivables in such Account, if such Accounts had been designated by Seller pursuant to subsection 2.6(b), would have caused the ---------------- limitations set forth in subsection 2.6(c)(ii) to be exceeded (unless there -------------------- shall have been delivered to the Trustee a letter from each Rating Agency confirming the Rating Agency Condition has been satisfied with respect to the addition of such Additional Account), or (iii) Seller otherwise designates such account as an account which is not to be included as an Account pursuant to this subsection 2.6(e). On or before the fifth Business Day of each month next - ---------------- succeeding a calendar month in which Accounts were included pursuant to the preceding sentence, Seller shall (i) indicate in its books and records, including the computer files of the receivables, that the Receivables created in connection with such included Accounts have been transferred to the Trust, and (ii) shall deliver to the Trustee a computer file or microfiche list containing a true and complete list of all such included Accounts identified by account number and by the Receivables balance and Principal Receivables balance as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Section 2.7 Removal of Accounts. ------------------- 41 (a) Subject to the conditions set forth below, during the Revolving Period Seller may designate from time to time Accounts no longer to be designated for inclusion in the Trust (the "Removed Accounts"); provided, ---------------- -------- however, that Seller shall not make more than one such designation in any - ------- Monthly Period. On or before the fifth Business Day (the "Removal Notice Date") ------------------- prior to the date on which Removed Accounts shall be designated (the "Removal ------- Date"), Seller shall give the Trustee, the Servicer (if a Person other than - ---- Seller), each Rating Agency and each Enhancement Provider written notice that the Receivables from such Removed Accounts are to be retransferred to Seller. Notwithstanding anything in this Section 2.7(a) to the contrary, Seller's designation of Removed Accounts hereunder shall be on a basis that complies with generally accepted accounting principles as determined by Seller after consultation with its accountants. (b) Seller shall be permitted to designate and require retransfer to it of the Receivables from Removed Accounts only upon satisfaction of the following conditions: (i) The Rating Agency Condition has been satisfied with respect to the removal of such Removed Accounts; (ii) On each Removal Date, the Trustee shall deliver to Seller a written retransfer agreement in substantially the form of Exhibit C --------- (the "Retransfer Agreement") and Seller shall deliver to the Trustee a -------------------- computer file, microfiche or written list containing a true and complete schedule identifying all Removed Accounts specifying for each such Removed Account, as of the Removal Notice Date, its account number and the aggregate amount of Receivables therein. Such computer file, microfiche or written list shall be as of the date of such Retransfer Agreement incorporated into and made a part of this Agreement; (iii) Seller shall represent and warrant as of each Removal Date that (a) the list of Removed Accounts, as of the Removal Notice Date, complies in all material respects with the requirements of (ii) above; -- (b) no selection procedure used by Seller which is adverse to the interests of the Investor Certificateholders was utilized in selecting the Removed Accounts; and (c) as of the Removal Notice Date and as of the Removal Date, Seller is not insolvent, and such removal was not made in contemplation of the Seller's insolvency; (iv) The removal of any Receivables of any Removed Accounts on any Removal Date shall not, in the reasonable belief of Seller, cause a Pay 42 Out Event to occur, or an event which with notice or lapse of time or both would constitute a Pay Out Event; (v) The Aggregate Principal Balance shall not be less than the Minimum Aggregate Principal Balance after giving effect to such removal; and (vi) Seller shall have delivered to the Trustee and to each Enhancement Provider a certificate of an officer of Seller confirming the items set forth in clauses (i) through (v) above. The Trustee may ---------- - conclusively rely on such certificate, shall have no duty to make inquiries with regard to the matters set forth therein and shall incur no liability in so relying. Upon satisfaction of the above conditions, the Trustee shall execute and deliver the Retransfer Agreement to Seller, and the Receivables from the Removed Accounts shall no longer constitute a part of the Trust. Section 2.8 Discount Option. --------------- (a) The Seller shall have the option to designate at any time and from time to time a percentage or percentages, which may be a fixed percentage or a variable percentage based on a formula (the "Discount Percentage"), of all ------------------- or any specified portion of Principal Receivables created after the Discount Option Date to be treated as Finance Charge Receivables ("Discount Option --------------- Receivables"). The Seller shall also have the option of reducing or withdrawing - ----------- the Discount Percentage, at any time and from time to time, on and after such Discount Option Date. The Seller shall provide to the Servicer, the Trustee and any Rating Agency 30 days prior written notice of the Discount Option Date, and such designation shall become effective on the Discount Option Date (i) unless such designation in the reasonable belief of the Seller would cause a Pay Out Event with respect to any Series to occur, or an event which, with notice or lapse of time or both, would constitute a Pay Out Event with respect to any Series or (ii) unless the Rating Agency Condition shall not have been satisfied with respect to such designation; provided that for this purpose Moody's shall not be deemed to be a "Rating Agency." (b) After the Discount Option Date, the Seller shall treat Discount Option Receivable Collections as Collections of Finance Charge Receivables as provided herein. 43 ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES Section 3.1 Acceptance of Appointment and Other Matters Relating to ------------------------------------------------------- the Servicer. - ------------ (a) FCNB agrees to act as the Servicer under this Agreement. The Investor Certificateholders by their acceptance of the Investor Certificates consent to FCNB acting as Servicer. (b) Subject to the provisions of this Agreement, the Servicer shall service and administer the Receivables and shall collect payments due under the Receivables in accordance with its customary and usual servicing procedures for servicing credit card receivables comparable to the Receivables and in accordance with the Cardholder Guidelines and shall have full power and authority, acting alone or through any party properly designated by it hereunder, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing and subject to Section 10.1, the Servicer is hereby ------------ authorized and empowered (i) unless such power and authority is revoked by the Trustee on account of the occurrence of a Servicer Default pursuant to Section ------- 10.1, to make withdrawals from the Collection Account as set forth in this - ---- Agreement, (ii) unless such power and authority is revoked by the Trustee on account of the occurrence of a Servicer Default pursuant to Section 10.1, to ------------ instruct the Trustee to make withdrawals and payments from the Principal Accounts, the Finance Charge Accounts and any other Investor Accounts in accordance with such instructions as set forth in this Agreement, (iii) unless such power and authority is revoked by the Trustee on account of the occurrence of a Servicer Default pursuant to Section 10.1, to instruct the Trustee in ------------ writing as provided herein, and (iv) unless such power and authority is revoked by the Trustee on account of the occurrence of a Servicer Default pursuant to Section 10.1, to execute and deliver, on behalf of the Trust for the benefit of - ------------ the Certificateholders, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Receivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with applicable law and regulations, to commence enforcement proceedings with respect to such Receivables. The Trustee agrees that it shall promptly follow the instructions of the Servicer, including those to withdraw funds from the Principal Accounts, the Finance Charge Accounts, the Excess Funding Account and any other Series Account. The Trustee shall furnish the Servicer with any powers of attorney and other documents necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder. 44 (c) (i) In the event that Seller is unable for any reason to transfer Receivables to the Trust in accordance with the provisions of this Agreement (including, without limitation, by reason of the occurrence of an Insolvency Event) the Servicer agrees to allocate and pay to the Trust, after such date, all Collections in respect of the Accounts giving rise to such Receivables first to the total amount of Principal Receivables from such Accounts transferred to the Trust. (ii) In the event that pursuant to subsection 2.4(d), Seller ---------------- accepts a retransfer of an Ineligible Receivable as a result of a breach of the representations and warranties in subsection 2.4(b) ---------------- relating to such Receivable, the Servicer agrees to allocate payments received in respect of the Account giving rise to such Receivable first to the total amount of Principal Receivables of the appropriate Obligor retained in the Trust and thereafter to the total amount owing by such Obligor on any Ineligible Receivables retransferred to Seller. (d) The Servicer shall not be obligated to use separate servicing procedures, offices, employees or accounts for servicing the Receivables from the procedures, offices, employees and accounts used by the Servicer in connection with servicing other credit card receivables. (e) The Servicer shall maintain fidelity bond coverage insuring against losses through wrongdoing of its officers and employees who are involved in the servicing of credit card receivables. Section 3.2 Servicing Compensation. As compensation for its servicing ---------------------- activities hereunder and reimbursement for its expenses as set forth in the immediately following paragraph, the Servicer shall be entitled to receive a monthly servicing fee in respect of any Monthly Period (or portion thereof) prior to the termination of the Trust pursuant to Section 12.1 (the "Monthly ------------ ------- Servicing Fee"). The share of the Monthly Servicing Fee allocable to each Series - ------------- of Investor Certificates with respect to any Monthly Period (or portion thereof) shall be payable on the related Distribution Date and, with respect to each Series (unless provided in the related Supplement), shall be equal to one-twelfth of the product of (A) the applicable Series Servicing Fee Percentage and (B) the Investor Amount of such Series as of the first day of the related Monthly Period, or portion thereof (the "Investor Monthly Servicing Fee"). The ------------------------------ share of the Monthly Servicing Fee allocable to the Seller Interest with respect to any Monthly Period (or portion thereof) shall be equal to one-twelfth of the product of (A) the Seller Amount and (B) the weighted average of the Series Servicing Fee Percentages with respect to each Series of Investor Certificates then outstanding (the "Monthly Seller Servicing Fee"). The Monthly Servicing Fee ---------------------------- shall equal the sum of (x) the aggregate amount of Investor Monthly Servicing Fees with respect to each Series then outstanding and (y) the 45 Monthly Seller Servicing Fee. The Investor Monthly Servicing Fee with respect to any Series is payable in arrears on the related Distribution Date (unless otherwise provided in the related Supplement) and the Monthly Seller Servicing Fee is payable in arrears no later than the last Distribution Date with respect to any Series occurring in a Monthly Period. The Monthly Seller Servicing Fee and, unless otherwise provided in a Supplement, each Investor Monthly Servicing Fee, shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. The Servicer's expenses include the reasonable fees and disbursements of independent accountants and all other expenses incurred by the Servicer in connection with its activities hereunder; provided that the Servicer shall not -------- be liable for any liabilities, costs or expenses of the Trust, the Investor Certificateholders or the Certificate Owners arising under any tax law, including without limitation any federal, state or local income or franchise taxes or any other tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith). The Servicer shall be required to pay such expenses for its own account and shall not be entitled to any payment therefor other than the Monthly Servicing Fee. Section 3.3 Representations, Warranties and Covenants of the Servicer. --------------------------------------------------------- FCNB, as initial Servicer, hereby makes, and any successor Servicer by its appointment hereunder shall make, the following representations and warranties and covenants on which the Trustee has relied in accepting the Receivables in trust and in authenticating Certificates: (a) Organization and Good Standing. The Servicer is duly organized, ------------------------------ validly existing and in good standing under the laws of its jurisdiction of organization, and has full corporate power, authority and right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted, and to execute, deliver and perform its obligations under this Agreement. (b) Due Qualification. The Servicer is qualified as a foreign banking ----------------- association or other entity in any state where it is required to be so qualified to service the Receivables as required by this Agreement and has obtained all necessary licenses and approvals as required under federal and state law, in each case, where the failure to be so qualified, licensed or approved, could reasonably be expected materially and adversely to affect the ability of the Servicer to comply with the terms of this Agreement. (c) Due Authorization. The execution, delivery, and performance of this ----------------- Agreement have been duly authorized by the Servicer by all necessary corporate action on the part of the Servicer. 46 (d) Binding Obligation. This Agreement constitutes legal, valid and ------------------ binding obligations of the Servicer, enforceable in accordance with its terms, except as enforceability may be limited by Debtor Relief Laws and except as such enforceability may be limited by general principles of equity (whether considered in a proceeding at law or in equity). (e) No Violation. The execution and delivery of this Agreement by the ------------ Servicer, and the performance of the transactions contemplated by this Agreement and the fulfillment of the terms hereof applicable to the Servicer, will not conflict with, violate, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, any Requirements of Law applicable to the Servicer or any indenture, contract, agreement, mortgage, deed of trust or other instrument to which the Servicer is a party or by which it is bound. (f) No Proceedings. There are no proceedings or investigations pending or, -------------- to the best knowledge of the Servicer, threatened against the Servicer before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by this Agreement, seeking any determination or ruling that, in the reasonable judgment of the Servicer, would materially and adversely affect the performance by the Servicer of its obligations under this Agreement, or seeking any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement. (g) Rescission and Cancellation. Other than pursuant to and in accordance --------------------------- with the Cardholder Guidelines, the Servicer shall not rescind or cancel any Receivable unless such rescission or cancellation shall have been ordered or directed by a Governmental Authority. (h) Other Actions. Other than pursuant to and in accordance with the ------------- Cardholder Guidelines and as otherwise specifically permitted by this Agreement, the Servicer shall not (i) take or fail to take any action if such action or failure to act would impair the rights of the Trust in any Receivable, or (ii) revise or defer any payment due in respect of any Receivable. (i) Compliance with Requirements of Law. The Servicer shall duly satisfy ----------------------------------- all obligations on its part to be fulfilled under or in connection with the Receivables or Accounts, will maintain in effect all qualifications required under Requirements of Law in order to properly service the Receivables and the Accounts and will comply in all material respects with all Requirements of Law in connection with servicing the Receivables and the Accounts the failure to comply with which 47 would have a material adverse effect on the Certificateholders. (j) Regulatory Filings. Servicer shall make any filings, reports, notices, ------------------ applications and registrations with, and seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Trust as may be necessary or advisable to comply with any federal or state securities or reporting requirements laws. Section 3.4 Reports and Records for the Trustee; Bank Account Statements. ------------------------------------------------------------- (a) Daily Reports. On each Business Day, the Servicer shall prepare and ------------- make available at the office of the Servicer for inspection by the Trustee a record setting forth (i) the aggregate amount of Collections processed by the Servicer on the preceding Business Day and (ii) the aggregate amount of Receivables as of the close of business on the preceding Business Day. (b) Monthly Servicer's Certificate. Unless otherwise stated in the related ------------------------------ Supplement with respect to any Series, on each Determination Date, the Servicer shall forward to the Trustee, the Paying Agent, any Rating Agency and any Enhancement Provider a certificate of a Servicing Officer substantially in the form of Exhibit D setting forth (i) the aggregate amount of Collections --------- processed during the preceding Monthly Period, (ii) the aggregate amount of the Investor Percentage of Collections of Principal Receivables processed by the Servicer pursuant to Article IV during the preceding Monthly Period, (iii) the ---------- aggregate amount of the Investor Percentage of Collections of Finance Charge Receivables processed by the Servicer pursuant to Article IV during the ---------- preceding Monthly Period, (iv) the aggregate amount of Receivables and the balance on deposit in each Finance Charge Account, each Principal Account, the Excess Funding Account and each other Series Account with respect to Collections processed as of the end of the last day of the preceding Monthly Period, (v) the aggregate amount, if any, of withdrawals, drawings or payments under any Enhancement with respect to each Series required to be made with respect to the previous Monthly Period, and (vi) the sum of all amounts payable to the Investor Certificateholders on the succeeding Distribution Date in respect of Certificate Interest and Certificate Principal. Section 3.5 Annual Servicer's Certificate. The Servicer will deliver to the ----------------------------- Trustee, any Enhancement Provider and any Rating Agency on or before April 30 of each calendar year, beginning with April 30, 1993, an Officer's Certificate substantially in the form of Exhibit E stating that (a) a review of the --------- activities of the Servicer during the preceding calendar year and of its performance under this Agreement was made under the supervision of the officer signing such certificate and 48 (b) to the best of such officer's knowledge, based on such review, the Servicer has fully performed all its obligations under this Agreement throughout such year, or, if there has been a default in the performance of any such obligation, specifying each such default known to such officer and the nature and status thereof. A copy of such certificate may be obtained by any Investor Certificateholder by a request in writing to the Trustee addressed to the Corporate Trust Office. Section 3.6 Annual Independent Public Accountants' Servicing Report. -------------------------------------------------------- (a) On or before April 30 of each calendar year, beginning with April 30, 1993, the Servicer shall cause KPMG or another firm of nationally recognized independent public accountants (who may also render other services to the Servicer or Seller) to furnish a report covering the preceding annual period to the effect that such accountants have applied certain agreed-upon procedures to certain documents and records relating to the servicing of Accounts under this Agreement, compared the information contained in the Servicer's certificates delivered during the period covered by such report with such documents and records and that no matters came to the attention of such accountants that caused them to believe that such servicing was not conducted in compliance with Section 3.2, Article IV and Section 8.8, except for such exceptions as such - ----------- ---------- ----------- accountants shall believe to be immaterial and such other exceptions as shall be set forth in such statement. In addition, each report shall set forth the agreed-upon procedures performed. A copy of such report may be obtained by any Investor Certificateholder by a request in writing to the Trustee addressed to the Corporate Trust Office. In addition, the Servicer shall cause such accountants to furnish a copy of such report to each Rating Agency and to each Enhancement Provider. (b) On or before April 30 of each calendar year, beginning with April 30, 1993, the Servicer shall cause KPMG or another firm of nationally recognized independent public accountants (who may also render other services to the Servicer or Seller) to furnish a report to the Trustee to the effect that they have compared the mathematical calculations of each amount set forth in the monthly certificates forwarded by the Servicer pursuant to subsection 3.4(c) ----------------- during the period covered by such report (which shall be the period from January 1, to and including December 31 of such calendar year) with the Servicer's computer reports which were the source of such amounts and that on the basis of such comparison, such accountants are of the opinion that such amounts are in agreement, except for such exceptions as they believe to be immaterial and such other exceptions as shall be set forth in such statement. A copy of such report may be obtained by any Investor Certificateholder by a request in writing to the Trustee addressed to the Corporate Trust Office. In addition, the Servicer shall cause such accountants to furnish a copy of such report to each Rating Agency and to each Enhancement Provider. 49 Section 3.7 Tax Treatment. Seller has structured this Agreement and the ------------- Investor Certificates to facilitate a secured, credit-enhanced financing on favorable terms with the intention that the Investor Certificates will constitute indebtedness of Seller for federal income and state and local tax purposes; and Seller and each Investor Certificateholder by acceptance of its Certificate agrees to recognize and report the Investor Certificates as indebtedness of Seller for purposes of federal, state and local income or franchise taxes and any other tax imposed on or measured by income, and to report all receipts and payments relating thereto in a manner that is consistent with such characterization. Section 3.8 Notices to Seller. In the event that Seller is no longer ----------------- affiliated with Servicer, Servicer shall deliver or make available to Seller each certificate and report required to be prepared, forwarded or delivered thereafter pursuant to Sections 3.4, 3.5 and 3.6. ------------ --- --- ARTICLE IV RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION AND APPLICATION OF COLLECTIONS Section 4.1 Rights of Certificateholders. Each Series of Investor ---------------------------- Certificates shall represent Undivided Interests in the Trust, including the benefits of any Enhancement and the right to receive the Collections and other amounts at the times and in the amounts specified in this Article IV to be ---------- deposited in Investor Accounts for the account of such Investor Certificates or paid to the Investor Certificateholders of such Series; provided, however, that -------- ------- the aggregate interest represented by such Series of Certificates at any time in the Principal Receivables shall not exceed an amount equal to the Investor Amount at such time. The Seller Interest shall represent the remaining Undivided Interest in the Trust, including the right to receive the Collections and other amounts at the times and in the amounts specified in this Article IV to be paid ---------- with respect to the Seller Interest, provided, however, that the aggregate -------- ------- interest represented by the Seller Interest at any time in the Principal Receivables shall not exceed the Seller Amount at such time, and the Seller Interest shall not represent any interest in the Investor Accounts, except as provided in this Agreement, or the benefits of any Enhancement issued with respect to any Series. Section 4.2 Establishment of Investor Accounts. ----------------------------------- (a) The Collection Account. The Servicer, for the benefit of the ---------------------- Certificateholders, shall establish and maintain in the name of the Trust, or cause to be established and maintained, with an office or branch located in the state designated by the Servicer of a depository institution or trust company (which may 50 include the Trustee) organized under the laws of the United States of America or any one of the states thereof a non-interest bearing segregated corporate trust account (the "Collection Account") bearing a designation clearly ------------------ indicating that the funds deposited therein are held in trust for the benefit of the Certificateholders; provided, however, that at all times the certificates of -------- ------- deposit, short-term deposits or commercial paper or the long-term unsecured debt obligations (other than such obligation whose rating is based on collateral or on the credit of a Person other than such institution or trust company) of such depository institution or trust company shall have a credit rating from the applicable Rating Agency of P-1, A-1+, as applicable, respectively, in the case of the certificates of deposit, short-term deposits or commercial paper, or a rating from the applicable Rating Agency of Aaa, AAA, as applicable, in the case of the long-term unsecured debt obligations, and which is a member of the FDIC (a "Qualified Institution"). Pursuant to Section 3.1(b), the Servicer shall have --------------------- -------------- the revocable power to withdraw funds from the Collection Account for the purposes of carrying out its duties hereunder. The Supplement for any Series may require the Trustee to establish and maintain a subaccount of the Collection Account for a Series (such subaccount, a "Collection Subaccount") --------------------- bearing a designation clearly indicating that the funds deposited therein are held in trust for the benefit of the Certificateholders of such Series with a depository institution or trust company meeting the criteria provided in such Supplement. Funds on deposit in the Collection Subaccount with respect to any Series shall not be for the benefit of the Investor Certificateholders of any other Series. The funds on deposit in each Collection Subaccount shall be invested in the manner provided in the related Supplement, and any earnings on such investments shall be applied as provided in such Supplement. The Trustee shall possess all right, title and interest in all funds on deposit from time to time in the Collection Account and in each Collection Subaccount and all proceeds thereof, and the Trustee shall have sole dominion and control of such account, funds and proceeds. (b) The Finance Charge Accounts and Principal Accounts. The Trustee, for -------------------------------------------------- the benefit of the Investor Certificateholders, shall establish and maintain with itself (or with another Qualified Institution) in the name of the Trust two segregated corporate trust accounts for each Series (in each case, the "Series ------ Finance Charge Account" and the "Series Principal Account", respectively, all of - ---------------------- ------------------------ which are referred to herein as the "Finance Charge Accounts" and the "Principal ----------------------- --------- Accounts", respectively), bearing a designation clearly indicating that the - -------- funds therein are held for the benefit of the Investor Certificateholders of such Series. The Trustee shall possess all right, title and interest in all funds on deposit from time to time in the accounts created pursuant to this subsection (b) and all proceeds thereof, and the Trustee shall have sole - -------------- dominion and control of such accounts, funds and proceeds. Pursuant to authority granted to it hereunder, the Servicer shall have the revocable power to instruct the Trustee to withdraw funds from the Finance Charge Accounts and Principal Accounts for the purpose of carrying out the Servicer's duties 51 hereunder. The Trustee at all times shall maintain accurate records reflecting each transaction in the Principal Accounts and the Finance Charge Accounts and that funds held therein shall at all times be held in trust for the benefit of the respective Investor Certificateholders. (c) The Distribution Account. The Trustee, for the benefit of the Investor ------------------------ Certificateholders, shall cause to be established and maintained in the name of the Trust, with an office or branch of a Qualified Institution, a non-interest bearing segregated demand deposit account (the "Distribution Account") bearing a -------------------- designation clearly indicating that the funds deposited therein are held in trust for the benefit of the Investor Certificateholders. The Trustee shall possess all right, title and interest in all funds on deposit from time to time in the Distribution Account and all proceeds thereof, and the Trustee shall have sole dominion and control of such account, funds and proceeds. The Paying Agent shall have the revocable authority to make withdrawals from the Distribution Account. (d) Establishment of the Excess Funding Account. The Servicer, for the ------------------------------------------- benefit of the Investor Certificateholders and the holder of the Seller Interest, shall establish and maintain or cause to be established and maintained in the name of the Trustee, on behalf of the Trust, with a Qualified Institution designated by the Servicer, a segregated trust account within the corporate trust department of such Qualified Institution (the "Excess Funding Account"), ---------------------- bearing a designation clearly indicating that the funds deposited therein are held in trust for the benefit of the Investor Certificateholders and the holder of the Seller Interest. The Trustee shall possess all right, title and interest in all funds on deposit from time to time in the Excess Funding Account and in all proceeds thereof, and the Trustee shall have sole dominion and control of such account, funds and proceeds. Pursuant to the authority granted to it pursuant to subsection 3.1(b), the Servicer shall have the power, revocable by ----------------- the Trustee, to withdraw funds and to instruct the Trustee to withdraw funds from the Excess Funding Account for the purposes of carrying out its duties hereunder. (e) Administration of the Investor Accounts. Funds on deposit in the --------------------------------------- Principal Accounts and the Finance Charge Accounts shall at all times be invested in Permitted Investments for the benefit of Seller; provided, that any -------- such investment shall mature and such funds shall be available for withdrawal on or prior to the Transfer Date following the Record Date occurring in the Monthly Period in which such funds were processed for collection. The Trustee shall maintain for the benefit of the Investor Certificateholders and the Servicer possession of the negotiable instruments or securities evidencing the Permitted Investments described in clause (a) of the definition thereof from the time of ---------- purchase thereof until the time of sale or maturity. On a monthly basis, all interest and earnings (net of losses and investment expenses) on funds on deposit in the Principal Accounts and the Finance 52 Charge Accounts shall be deposited by the Trustee in a separate deposit account with a Qualified Institution in the name of Seller, which shall not constitute a part of the Trust, or shall otherwise be turned over by the Trustee to Seller in accordance with Seller's instructions. Subject to the restrictions set forth above, Seller shall have the authority to instruct the Trustee with respect to the investment of funds on deposit in the Principal Accounts and the Finance Charge Accounts. For purposes of determining the availability of funds or the balances in the Finance Charge Accounts and the Principal Accounts for any reason under this Agreement, all investment earnings on such funds shall be deemed not to be available or on deposit. (f) Failure of Institution to Qualify. If an institution at which the --------------------------------- Collection Account, any Collection Subaccount, the Excess Funding Account or any Investor Account is established ceases to be a Qualified Institution, the Servicer or the Trustee (as the case may be) shall notify the Rating Agencies and within 15 days establish a replacement account at a Qualified Institution and transfer any monies, documents, instruments, securities, securities entitlements, certificates of deposit and other property to such replacement account. From the date such new account is established, it shall be the Collection Account, Excess Funding Account or applicable Investor Account, as appropriate. Section 4.3 Collections and Allocations. --------------------------- (a) Collections. The Servicer shall deposit all Collections in the ----------- Collection Account as promptly as possible after the Date of Processing of such Collections, but in no event later than the second Business Day following such Date of Processing; provided, however, that during the Revolving Period for all -------- ------- outstanding Series, the Servicer may at its option deposit on a daily basis as aforesaid only those Collections attributable to Finance Charge Receivables and allocable to the Investor Certificates, and retain all other Collections until the next Collections Deposit Day, at which time such other Collections, netted as provided in subsection 4.3(c), shall be deposited in the Collection Account. ----------------- The Servicer shall allocate such amounts to each Series of Investor Certificates and to the Seller Interest in accordance with this Article IV and ---------- shall withdraw the required amounts from the Collection Account or pay such amounts to the Seller Interest or to the other persons entitled thereto pursuant to this Agreement, in each case as modified by any Supplement. The Servicer shall make such deposits or payments on the date indicated therein, if applicable, by wire transfer in next day funds. (b) Commingling Conditions. Notwithstanding anything in this Agreement to ---------------------- the contrary, for so long as, and only so long as, FCNB shall remain the Servicer hereunder and no Servicer Default has occurred and is continuing and 53 either (i) the Servicer provides to the Trustee a letter of credit or other arrangement covering risk of collection of the Servicer and the Servicer shall have satisfied the Rating Agency Condition with respect to such arrangement or (ii) the Servicer (unless the Rating Agency Condition has been satisfied with respect to making monthly deposits) shall have and maintain a certificate of deposit or short-term deposit rating of P-1 by Moody's and of at least A-1 by Standard & Poor's and deposit insurance as required by law and by the FDIC, the Servicer need not deposit Collections to the Collection Account in the manner provided in this Article IV or make payments to the holder of the Seller ---------- Interest prior to the close of business on the day any Collections are deposited in the Collection Account as provided in this Article IV, but may make such ---------- deposits, payments and withdrawals on the Transfer Date in the Monthly Period following the Monthly Period in which such amounts were collected in an amount equal to the net amount of such deposits, payments and withdrawals which would have been made but for the provisions of this paragraph. (c) Net Payments. So long as First Consumers National Bank is the Servicer ------------ and First Consumers National Bank, as Servicer, is making deposits to the Collection Account in accordance with subsection 4.3(a), First Consumers ----------------- National Bank, acting as Servicer and as agent for the holder of the Seller Interest, may make a net payment to the Collection Account on the Collections Deposit Day in the amount of all Collections received by the Servicer since the previous Collections Deposit Date, minus all amounts payable to First Consumers National Bank or with respect to the Seller Interest on or before the next succeeding Transfer Date in accordance with this Article IV and, in such event, ---------- the Servicer will, on the Collections Deposit Date, retain, or pay to the holder of the Seller Interest, as the case may be, all amounts payable to First Consumers National Bank or the holder of the Seller Interest as aforesaid in lieu of the payments required to be made under this Article IV. ---------- (d) Investor Net Recoveries. On each Determination Date, the Servicer ----------------------- shall calculate the Investor Net Recoveries, if any, for the Monthly Period next preceding such Determination Date. On or before the Transfer Date next following such Determination Date, the Servicer shall deposit the amount of Investor Net Recoveries, if any, in the Collection Account. (e) Adjustments for Miscellaneous Credits. The Servicer shall be obligated ------------------------------------- to reduce on a monthly basis the aggregate amount of Principal Receivables used to calculate the Seller Amount as provided in this subsection 4.3(c) (a "Credit ---------------- ------ Adjustment") with respect to any Principal Receivable (i) which was created in - ---------- respect of merchandise refused or returned by the Obligor thereunder, (ii) which is reduced by the Servicer by any rebate, refund, chargeback or adjustment, (iii) as to which the Obligor thereunder has asserted a counterclaim or defense and either (A) the Servicer has agreed such counterclaim or defense is valid or (B) a final 54 nonappealable judgment or decree has been entered in favor of such Obligor in respect of such counterclaim or defense by a court or arbitral body having jurisdiction thereof, or (iv) which the Servicer has determined was created through a fraudulent or counterfeit charge, but only if and to the extent such fraudulent or counterfeit charges are not included as charge-offs under the Cardholder Guidelines. In the event that the exclusion of the amount of a Credit Adjustment from the calculation of the Seller Amount would cause the Seller Amount to be less than zero, Seller shall make a deposit, no later than the Business Day following the Date of Processing of such Credit Adjustment, in the Excess Funding Account in immediately available funds, in an amount equal to the amount by which such Credit Adjustment exceeded the Seller Amount on such Date of Processing to the extent the Seller has received such funds from FCNB under the Receivables Purchase Agreement, and, if Seller has not received such funds, to the extent Seller has funds available for such purpose after amounts payable to Securityholders (as defined in the Receivables Purchase Agreement) have been paid in full. Each party hereto agrees that the failure by the Seller to make the deposit in accordance with this Section 4.3(e) shall not give rise to any ------------- claim against the Seller. (f) Allocations for the Seller Interest. Throughout the existence of ----------------------------------- the Trust, unless otherwise stated in any Supplement, the Servicer shall allocate to the Seller Interest an amount equal to the product of (i) the Seller Percentage and (ii) the aggregate amount of such Principal Collections and Finance Charge Collections, respectively, in respect of each Monthly Period. Notwithstanding anything in this Agreement to the contrary, unless otherwise stated in any Supplement, the Servicer need not deposit this amount or any other amounts so allocated to the Seller Interest pursuant to any Supplement into the Collection Account and shall pay, or be deemed to pay, such amounts as collected to the holder of the Seller Interest, except, if the Seller Amount is less than zero, then Principal Collections which are allocated to the Seller Interest shall be deposited in the Excess Funding Account until the Seller Amount is equal to zero. (g) Shared Principal Collections; Excess Funding Account. On each ---------------------------------------------------- Business Day, Principal Collections allocable to the Seller Interest and Shared Principal Collections payable to the holder of the Seller Interest in an aggregate amount equal to the Shortfall Amount shall be deposited in the Excess Funding Account. Thereafter, amounts in the Excess Funding Account shall be treated as Shared Principal Collections to the extent that, after giving effect to the application and distribution of such amount as Shared Principal Collections, the Aggregate Principal Balance would equal or exceed the Minimum Aggregate Principal Balance. Shared Principal Collections shall be allocated to outstanding Principal Sharing Series pro rata based on the Principal Shortfall, --- ---- if any, for each such Principal Sharing Series, and the Servicer shall (except as provided above) pay any remaining 55 Shared Principal Collections on each Business Day to the holder of the Seller Interest. (h) Investment of Amounts in Excess Funding Account. Amounts on ----------------------------------------------- deposit in the Excess Funding Account on any Business Day will be invested, at the direction of the Seller, by the Servicer or the Trustee on behalf of the Seller in Permitted Investments maturing on the next Business Day. Earnings from such investments received shall be paid to the Seller or, if the Seller Amount as determined on such Business Day does not exceed the Minimum Seller Amount, such earnings shall be deposited in the Excess Funding Account. (i) Allocation of Deposit Obligations. If the Seller or the Servicer --------------------------------- shall fail to make any Deposit Obligation, the amount thereof shall first be allocated to reduce the Seller Amount until the Seller Amount equals the Minimum Seller Amount. Any remaining shortfall shall be allocated to each Series ratably based upon a fraction the numerator of which is the Investor Percentage used by such Series to allocate Default Amounts and the denominator of which is the sum of all such numerators of all Series outstanding (such allocated amount, the "Series Share" of such shortfall). The Series Share of each series that ------------ specifies a Minimum Seller Percentage greater than zero shall be allocated to reduce the Minimum Seller Amount, and any Collections otherwise allocable to the Seller Amount or balance on deposit in the Excess Funding Account shall be available on a ratable basis to such Series to cover any shortfalls arising from such failure; provided to the extent the Seller Amount falls below zero, any -------- portion of the Series Share of any such Series that is not covered as described above shall be allocated to such Series. The Series Share of each Series that specifies a Minimum Seller Percentage of zero shall be allocated to such Series. [THE REMAINDER OF ARTICLE IV IS RESERVED AND SHALL BE SPECIFIED IN ANY SUPPLEMENT WITH RESPECT TO ANY SERIES] ARTICLE V [ARTICLE V IS RESERVED AND SHALL BE SPECIFIED IN ANY SUPPLEMENT WITH RESPECT TO ANY SERIES] 56 ARTICLE VI THE CERTIFICATES Section 6.1 The Certificates. The Investor Certificates of each Series ---------------- and any Class thereof shall be issued in fully registered form and shall be substantially in the form of the exhibits with respect thereto attached to the related Supplement. The Investor Certificates shall, upon issue, be executed and delivered by the Trustee. The Investor Certificates shall be issuable in a minimum denomination of $1,000 Undivided Interest and integral multiples thereof, unless otherwise provided in any Supplement, and the Investor Certificates of each Series shall be issued upon initial issuance in an aggregate original principal amount equal to the Initial Investor Amount of such Series. Each Certificate shall be executed by manual or facsimile signature on behalf of the Trustee by an authorized officer of the Trustee. Certificates bearing the manual or facsimile signature of the individual who was, at the time when such signature was affixed, authorized to sign on behalf of the Trustee shall not be rendered invalid, notwithstanding that such individual has ceased to be so authorized prior to the authentication and delivery of such Certificates or does not hold such office at the date of such Certificates. No Certificate shall be entitled to any benefit under this Agreement, or be valid for any purpose, unless there appears on such Certificate a certificate of authentication substantially in the form provided for herein executed by or on behalf of the Trustee by the manual or facsimile signature of a duly authorized signatory, and such certificate upon any Certificate shall be conclusive evidence, and the only evidence, that such Certificate has been duly authenticated and delivered hereunder. All Certificates shall be dated the date of their authentication. Section 6.2 Authentication of Certificates. Contemporaneously with the ------------------------------ initial transfer of the Receivables, whether now existing or hereafter acquired (other than Receivables in Additional Accounts) and the other components to the Trust, the Trustee shall authenticate and deliver the initial Series of Investor Certificates. The Certificates shall be duly authenticated by or on behalf of the Trustee, and together shall evidence the entire ownership of the Trust. Section 6.3 Registration of Transfer and Exchange of Certificates. ----------------------------------------------------- (a) The Trustee shall cause to be kept at the office or agency to be maintained by a transfer agent and registrar (the "Transfer Agent and ------------------ Registrar") in accordance with the provisions of Section 11.16 a register (the - --------- ------------- "Certificate Register") in which, subject to such reasonable regulations as it -------------------- may prescribe, the Transfer Agent and Registrar shall provide for the registration of the Investor Certificates and of transfers and exchanges of the Investor Certificates as herein provided. The Trustee is hereby initially appointed Transfer Agent and Registrar for the purpose of 57 registering the Investor Certificates and transfers and exchanges of the Investor Certificates as herein provided. The Trustee shall be permitted to resign as Transfer Agent and Registrar upon 30 days written notice to the Servicer. In the event that the Trustee shall no longer be the Transfer Agent and Registrar, the Trustee shall appoint a successor Transfer Agent and Registrar. Upon surrender for registration of transfer of any Investor Certificate of any Series at any office or agency of the Transfer Agent and Registrar maintained for such purpose, the Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Investor Certificates of such Series in authorized denominations of like aggregate Undivided Interests. At the option of an Investor Certificateholder, Investor Certificates of any Series may be exchanged for other Investor Certificates of the same Series and authorized denominations of like Undivided Interests, upon surrender of the Investor Certificates to be exchanged at any such office or agency. Whenever any Investor Certificates are so surrendered for exchange, the Trustee shall execute, authenticate and deliver the Investor Certificates which the Certificateholder making the exchange is entitled to receive. Every Investor Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in a form satisfactory to the Trustee and the Transfer Agent and Registrar duly executed by the Certificateholder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Investor Certificates, but the Transfer Agent and Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Investor Certificates. All Investor Certificates surrendered for registration of transfer and exchange shall be canceled and disposed of in a manner satisfactory to Seller and the Trustee. (b) Except as provided in Section 6.12 or 7.2 or this subsection 6.3 ------------ --- -------------- (b), Seller shall not transfer the Seller Interest or any interest therein other - than participations granted under the Receivables Purchase Agreement. Seller may from time to time transfer a portion of the Seller Interest upon satisfaction of the following conditions: (i) the Seller Amount shall not be less than the Minimum Seller Amount, in each case as of the date of, and deducting the transferred portion of, such transfer; 58 (ii) the Rating Agency Condition shall have been satisfied with respect to such transfer; and (iii) Seller shall have delivered to Trustee and each Rating Agency an Opinion of Counsel to the effect that such transfer does not adversely affect any of the conclusions stated in opinions as to federal income tax delivered on any Closing Date, dated the date of such transfer, with respect thereto. Any portion of the Seller Interest transferred as described above may be further transferred only upon satisfaction of the conditions set forth in clauses (ii) ----------- and (iii) above. --- (c) The Transfer Agent and Registrar will maintain at its expense in the Borough of Manhattan, The City of New York, an office or offices or agency or agencies where Investor Certificates may be surrendered for registration of transfer or exchange. Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates. If (a) ------------------------------------------------- any mutilated Certificate is surrendered to the Transfer Agent and Registrar, and the Transfer Agent and Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Certificate and (b) there is delivered to the Transfer Agent and Registrar and the Trustee such security or indemnity as may be required by them (which unsecured agreement of indemnity by an institutional Certificateholder shall be sufficient for such purposes) to save each of them harmless, then, in the absence of notice to the Trustee that such Certificate has been acquired by a bona fide purchaser, the Trustee shall execute and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like tenor and aggregate Undivided Interest. In connection with the issuance of any new Certificate under this Section 6.4, the Trustee or the Transfer Agent and ----------- Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee and the Transfer Agent and Registrar) connected therewith. Any duplicate Certificate issued pursuant to this Section 6.4 shall constitute complete and indefeasible evidence of ----------- ownership in the Trust, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time. Section 6.5 Persons Deemed Owners. Prior to due presentation of a --------------------- Certificate for registration of transfer, the Trustee and the Paying Agent, the Transfer Agent and Registrar and any agent of any of them may treat the person in whose name any Certificate is registered as the owner of such Certificate for the purpose of receiving distributions pursuant to Article V (as described in --------- any Supplement) and 59 for all other purposes whatsoever, and neither the Trustee and the Paying Agent, the Transfer Agent and Registrar nor any agent of any of them shall be affected by any notice to the contrary; provided, however, that in determining whether -------- ------- the holders of Investor Certificates evidencing the requisite Undivided Interests have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Investor Certificates owned by Seller, the Servicer or any Affiliate thereof shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Investor Certificates which a Responsible Officer in the Corporate Trust Office of the Trustee knows to be so owned shall be so disregarded. Investor Certificates so owned which have been pledged in good faith shall not be disregarded and may be regarded as outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Investor Certificates and that the pledgee is not Seller, the Servicer or an Affiliate thereof. Section 6.6 Appointment of Paying Agent. --------------------------- (a) The Paying Agent shall make distributions to Investor Certificateholders from the Distribution Account pursuant to Articles IV and V ----------- - hereof. Any Paying Agent shall have the revocable power to withdraw funds from the Distribution Account for the purpose of making distributions referred to above. The Trustee may revoke such power and remove the Paying Agent for a particular Series, if the Trustee determines in its sole discretion that the Paying Agent shall have failed to perform its obligations under this Agreement in any material respect. The Paying Agent, unless the Supplement relating to any Series states otherwise, shall initially be the Trustee. The Trustee shall be permitted to resign as Paying Agent upon 30 days' written notice to Seller. In the event that the Trustee shall no longer be the Paying Agent, the Trustee shall appoint a successor. Each Paying Agent must be acceptable to Seller and the Servicer. The provisions of Sections 11.1, 11.2 and 11.3 shall apply to the ------------- ---- ---- Trustee also in its role as Paying Agent, for so long as the Trustee shall act as Paying Agent. (b) The Trustee shall cause the Paying Agent (other than itself) to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee that such Paying Agent will hold all sums, if any, held by it for payment to the Investor Certificateholders in trust for the benefit of the Investor Certificateholders entitled thereto until such sums shall be paid to such Certificateholders and shall agree, and if the Trustee is the Paying Agent it hereby agrees, that it shall comply with all requirements of the Internal Revenue Code regarding the withholding of payments in respect of federal income taxes due from Certificate Owners by the Trustee. 60 Section 6.7 Access to List of Certificateholders' Names and Addresses. --------------------------------------------------------- The Trustee will furnish or cause to be furnished by the Transfer Agent and Registrar to the Servicer or the Paying Agent, within five Business Days after receipt by the Trustee of a request therefor from the Servicer or the Paying Agent, respectively, in writing, a list in such form as the Servicer or the Paying Agent may reasonably require, of the names and addresses of the Investor Certificateholders as of the most recent Record Date for payment of distributions to Investor Certificateholders. If Holders of Investor Certificates (the "Applicants") evidencing Undivided Interests aggregating not ---------- less than 10% of the Investor Amount of the Investor Certificates of any Series apply in writing to the Trustee, and such application states that the Applicants desire to communicate with other Investor Certificateholders of any Series with respect to their rights under this Agreement or under the Investor Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee, after having been adequately indemnified by the Seller for its costs and expenses, shall afford or shall cause the Transfer Agent and Registrar to afford such Applicants access during normal business hours to the most recent list of Certificateholders held by the Trustee and shall give the Servicer notice that such request has been made, within five Business Days after the receipt of such application. Such list shall be as of a date no more than 45 days prior to the date of receipt of such Applicants' request. Every Certificateholder, by receiving and holding a Certificate, agrees with the Trustee that neither the Trustee, the Transfer Agent and Registrar, nor any of their respective agents shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Certificateholders hereunder, regardless of the source from which such information was obtained. Section 6.8 Authenticating Agent. -------------------- (a) The Trustee may appoint one or more authenticating agents with respect to the Certificates which shall be authorized to act on behalf of the Trustee in authenticating the Certificates in connection with the issuance, delivery, registration of transfer, exchange or repayment of Certificates. Whenever reference is made in this Agreement to the authentication of Certificates by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication on behalf of the Trustee by an authenticating agent and a certificate of authentication executed on behalf of the Trustee by an authenticating agent. Each authenticating agent must be acceptable to Seller and the Servicer. (b) Any institution succeeding to the corporate agency business of an authenticating agent shall continue to be an authenticating agent without the execution or filing of any paper or any further act on the part of the Trustee or such authenticating agent. 61 (c) An authenticating agent may at any time resign by giving written notice of resignation to the Trustee and to Seller. The Trustee may at any time terminate the agency of an authenticating agent by giving notice of termination to such authenticating agent and to Seller. Upon receiving such a notice of resignation or upon such a termination, or in case at any time an authenticating agent shall cease to be acceptable to the Trustee or Seller or the Servicer, the Trustee promptly may appoint a successor authenticating agent. Any successor authenticating agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an authenticating agent. No successor authenticating agent shall be appointed unless acceptable to the Trustee, Seller and the Servicer. (d) The Servicer agrees to pay each authenticating agent from time to time reasonable compensation for its services under this Section 6.8, and the Trustee ----------- shall be entitled to be reimbursed and Servicer shall reimburse the Trustee for such reasonable payments actually made, subject to the provisions of Section ------- 11.5. - ---- (e) The provisions of Sections 11.1, 11.2 and 11.3 shall be applicable to ------------- ---- ---- any authenticating agent. (f) Pursuant to an appointment made under this Section 6.8, the ----------- Certificates may have endorsed thereon, in lieu of the Trustee's certificate of authentication, an alternate certificate of authentication in substantially the following form: This is one of the Certificates described in the Pooling and Servicing Agreement. _______________________________________ as Authenticating Agent for the Trustee, By:____________________________________ Authorized Officer Section 6.9 Book-Entry Certificates. Unless otherwise provided in any ----------------------- related Supplement, the Investor Certificates of any Series upon original issuance, shall be issued in the form of a one or more typewritten Certificates representing the Book-Entry Certificates, to be delivered to the Clearing Agency specified in the Supplement for such Series, by, or on behalf of, Seller. The Investor Certificates of each Series shall, unless otherwise provided in the related Supplement, initially be registered on the Certificate Register in the name of the nominee of the Clearing Agency, and no Certificate Owner will receive a definitive certificate representing 62 such Certificate Owner's interest in the Investor Certificates, except as provided in Section 6.11. Unless and until definitive, fully registered Investor ------------ Certificates of any Series (the "Definitive Certificates") have been issued to ----------------------- Certificate Owners: (i) the provisions of this Section 6.9 shall be in full force and ----------- effect with respect to each such Series; (ii) Seller, the Servicer, the Paying Agent, the Transfer Agent and Registrar and the Trustee may deal with the related Clearing Agency and the related Clearing Agency Participants for all purposes (including the making of distributions on the Investor Certificates of each such Series) as the authorized representatives of such Certificate Owners; (iii) to the extent that the provisions of this Section 6.9 conflict ----------- with any other provisions of this Agreement, the provisions of this Section ------- 6.9 shall control with respect to each such Series; and --- (iv) the rights of Certificate Owners of each such Series shall be exercised only through the Clearing Agency and the applicable Clearing Agency Participants and shall be limited to those established by law and agreements between such Certificate Owners and the Clearing Agency and/or the Clearing Agency Participants. Pursuant to the Depository Agreement applicable to a Series, unless and until Definitive Certificates are issued pursuant to Section 6.11, the initial Clearing Agency will make book-entry ------------ transfers among the Clearing Agency Participants and receive and transmit distributions of principal and interest on the Investor Certificates to such Clearing Agency Participants. Section 6.10 Notices to Clearing Agency. Whenever notice or other -------------------------- communication to the Certificateholders of a Series is required under this Agreement, unless and until Definitive Certificates shall have been issued to the Certificate Owners of such Series, the Trustee shall give all such notices and communications specified herein to be given to Holders of the Investor Certificates of such Series to the Clearing Agency. Section 6.11 Definitive Certificates Initially Issued as Book-Entry ------------------------------------------------------ Certificates. If (i)(A) Seller advises the Trustee in writing that the Clearing - ------------ Agency is no longer willing or able properly to discharge its responsibilities under the related Depository Agreement, and (B) the Trustee or Seller is unable to locate a qualified successor, (ii) Seller, at its option, advises the Trustee in writing that it elects to terminate the book-entry system through such Clearing Agency or (iii) after the occurrence of a Servicer Default, Certificate Owners of a Series representing beneficial interests aggregating not less than 50% of the Investor Amount of a Series 63 advise the Trustee and the related Clearing Agency through the related Clearing Agency Participants in writing that the continuation of a book-entry system through such Clearing Agency is no longer in the best interests of the Certificate Owners, the Trustee shall notify all Certificate Owners of such Series through such Clearing Agency, of the occurrence of any such event and of the availability of Definitive Certificates to Certificate Owners requesting the same. Upon surrender to the Trustee of the Investor Certificates of such Series by the related Clearing Agency, accompanied by registration instructions from the related Clearing Agency for registration, the Trustee shall issue the Definitive Certificates of such Series. Neither Seller nor the Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Certificates of such Series all references herein to obligations imposed upon or to be performed by the Clearing Agency shall be deemed to be imposed upon and performed by the Trustee, to the extent applicable with respect to such Definitive Certificates and the Trustee shall recognize the Holders of the Definitive Certificates of such Series as Certificateholders of such Series hereunder. Section 6.12 New Issuances. ------------- (a) Upon any Exchange, Seller shall under Section 6.1 deliver to the ----------- Trustee for execution and authentication under Section 6.2, one or more new ----------- Series of Investor Certificates. Any such Series of Investor Certificates shall be substantially in the form specified in the related Supplement and shall bear, upon its face, the designation for the Series to which it belongs, as selected by Seller. Except as specified in any Supplement for a related Series, all Investor Certificates of any Series shall rank pari passu and be equally and ---------- ratably entitled as provided herein to the benefits hereof (except that the Enhancement provided for any Series shall not be available for any other Series) without preference, priority or distinction on delivery, all in accordance with terms and provisions of this Agreement and the related Supplement. (b) Seller may require Trustee to issue to Seller under Section 6.1, for ----------- execution and redelivery to Trustee for authentication under Section 6.2, one or ----------- more newly issued Series of Investor Certificates in exchange for a reduction in the Seller Interest (any such transfer, a "Seller Exchange"). In addition, to --------------- the extent permitted for any Series of Investor Certificates as specified in the related Supplement, the Investor Certificateholders of such Series may tender their Investor Certificates to the Trustee pursuant to the terms and conditions set forth in such Supplement in exchange for one or more newly issued Series of Investor Certificates (an "Investor Exchange"). The Seller Exchange and Investor ----------------- Exchange are referred to collectively herein as an "Exchange." The holder of the Seller Interest or Investor Certificateholders, as applicable, may perform an Exchange by notifying the Trustee 64 in writing at least five days (but in no event less than three Business Days) in advance (an "Exchange Notice") of the date upon which the Exchange is to occur --------------- (an "Exchange Date"). Any Exchange Notice shall state the designation of any ------------- Series to be issued on the Exchange Date and, with respect to each such Series: (i) its Initial Investor Amount (or the method of calculating such Initial Investor Amount), (ii) its Certificate Rate (or the method of allocating interest payments or other cash flows to such Series), if any, and (iii) the Enhancement Provider, if any, with respect to such Series. On the Exchange Date, the Trustee shall authenticate and deliver any such Series of Investor Certificates only upon delivery to it of the following: (A) a Supplement in form satisfactory to the Trustee satisfying the criteria set forth in subsection ---------- 6.12(c) executed by the Seller and specifying the Principal Terms of such - ---- Series, (B) the applicable Enhancement, if any, (C) the agreement, if any, pursuant to which the Enhancement Provider agrees to provide the Enhancement, if any, (D) an Opinion of Counsel dated the Exchange Date with respect to such Exchange, to the effect that, for federal income tax purposes, (1) such Exchange will not adversely affect the tax characterization as debt of the Investor Certificates of any outstanding Series or Class that was characterized as debt at the time of its issuance, (2) such action will not cause the Trust to be deemed to be an association (or publicly traded partnership) taxable as a corporation, (3) such Exchange will not cause or constitute an event in which gain or loss would be recognized by any Investor Certificateholder and (4) except as is otherwise provided in a Supplement, the Investor Certificates of the Series established pursuant to such Supplement will be properly characterized as debt, (E) evidence that the Rating Agency Condition has been satisfied with respect to such Exchange, (F) an Officer's Certificate of the Seller that on the Exchange Date (1) the Seller, after giving effect to the Exchange, would not be required to add Additional Accounts pursuant to subsection 2.6(a) and (2) after giving effect to such Exchange, the Aggregate - ----------------- Principal Balance would be at least equal to the Minimum Aggregate Principal Balance, and (G) the existing Investor Certificates, in the case of an Investor Exchange. Upon satisfaction of such conditions, Trustee shall issue as provided above, such Series of Investor Certificates, dated the Exchange Date and, in the case of an Investor Exchange, cancel the Investor Certificates tendered in exchange for the new Series. There is no limit to the number of Issuances that may be performed under this Agreement. (c) In conjunction with an Exchange, the parties hereto shall execute a Supplement, which shall specify the relevant terms with respect to any newly issued Series of Investor Certificates, which may including without limitation: (i) its name or designation, (ii) an Initial Investor Amount or the method of calculating the Initial Investor Amount, (iii) the Certificate Rate (or formula for the determination thereof), (iv) the Closing Date, (v) the Rating Agency or Agencies rating such Series, (vi) the name of the Clearing Agency, if any, (vii) the rights of the holder of the Seller Interest that have been transferred to the Holders of such Series pursuant to such Exchange (including any rights to allocations of Collections of Finance Charge 65 Receivables and Principal Receivables), (viii) the interest payment date or dates and the date or dates from which interest shall accrue, (ix) the method of allocating Collections with respect to Principal Receivables for such Series and, if applicable, with respect to other Series and the method by which the principal amount of Investor Certificates of such Series shall amortize or accrete and the method for allocating Collections with respect to Finance Charge Receivables and Receivables in Defaulted Accounts, (x) the names of any accounts to be used by such Series and the terms governing the operation of any such account, (xi) the Series Servicing Fee Percentage, (xii) the Minimum Seller Amount, (xiii) the Series Termination Date, (xiv) the terms of any Enhancement with respect to such Series, (xv) the Enhancement Provider, if applicable, (xvi) the Base Rate applicable to such Series, (xvii) the terms on which the Certificates of such Series may be repurchased or remarketed to other investors, (xviii) any deposit into any account provided for such Series, (xix) the number of Classes of such Series, and if more than one Class, the rights and priorities of each such Class, (xx) whether Interchange, Recoveries or other fees will be included in the funds available to be paid for such Series, (xxi) the priority of any Series with respect to any other Series, (xxii) the rights, if any, of the holders of the Seller Interest that have been transferred to the holders of such Series, and (xxiii) any other relevant terms of such Series (including whether or not such Series will be pledged as collateral for an issuance of any other securities, including commercial paper) (all such terms, the "Principal --------- Terms" of such Series). The terms of such Supplement may modify or amend the - ----- terms of this Agreement solely as applied to such new Series. If on the date of the issuance of such Series there is issued and outstanding one or more Series of Investor Certificates and no Series of Investor Certificates is currently rated by a Rating Agency, then as a condition to such Exchange a nationally recognized investment banking firm or commercial bank shall also deliver to the Trustee an officer's certificate stating, in substance, that the Exchange will not have an adverse effect on the timing or distribution of payments to such other Series of Investor Certificates then issued and outstanding. ARTICLE VII OTHER MATTERS RELATING TO SELLER Section 7.1 Liability of Seller. Seller shall be liable in accordance ------------------- herewith to the extent, and only to the extent, of the obligations specifically undertaken by Seller hereunder. Section 7.2 Merger or Consolidation of, or Assumption of the Obligations ------------------------------------------------------------ of, Seller. - ---------- 66 (a) Seller shall not consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, unless: (i) the Person formed by such consolidation or into which Seller is merged or the Person which acquires by conveyance or transfer the properties and assets of Seller substantially as an entirety shall be, if Seller is not the surviving entity, organized and existing under the laws of the United States of America or any State or the District of Columbia and shall expressly assume, by an agreement supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the performance of every covenant and obligation of Seller, as applicable hereunder, and shall benefit from all the rights granted to Seller, as applicable hereunder. To the extent that any right, covenant or obligation of Seller, as applicable hereunder, is inapplicable to the successor entity, such successor entity shall be subject to such covenant or obligation, or benefit from such right, as would apply, to the extent practicable, to such successor entity. In furtherance hereof, in applying this Section 7.2 to a successor entity, Section 9.2 shall be applied by ----------- ----------- reference to events of involuntary liquidation, receivership or conservatorship applicable to such successor entity as such be set forth in the Officer's Certificate described in subsection 7.2(a)(ii); -------------------- (ii) Seller shall have delivered to the Trustee an Officer's Certificate of Seller and an Opinion of Counsel, each stating that such consolidation, merger, conveyance or transfer and such supplemental agreement comply with this Section 7.2 and that all conditions precedent ----------- herein provided for relating to such transaction have been complied with and, in the case of the Opinion of Counsel, that such supplemental agreement is legal, valid and binding with respect to Seller; and (iii) Seller shall have delivered notice to each Rating Agency of such consolidation, merger, conveyance or transfer. (b) The obligations of Seller hereunder shall not be assignable nor shall any Person succeed to the obligations of Seller hereunder except for mergers, consolidations, assumptions or transfers in accordance with the provisions of the foregoing paragraph. Section 7.3 Limitation on Liability of Seller. Neither Seller nor any of --------------------------------- the directors or officers or employees or agents of Seller shall be under any liability to the Trust, the Trustee, the Certificateholders or any other Person for any action taken or for refraining from the taking of any action pursuant to this Agreement whether arising from express or implied duties under this Agreement; provided, however, that -------- ------- 67 this provision shall not protect Seller or any such person against any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of its willful misconduct hereunder; and provided, further, that Seller shall be liable for any actual -------- ------- damages resulting directly from Seller's material failure to perform any of its obligations under this Agreement, but only if and to the extent that another remedy is not provided for and available hereunder. Seller and any director or officer or employee or agent of Seller may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person respecting ----- ----- any matters arising hereunder. Notwithstanding anything to the contrary in this Agreement or any other Transaction Document, any payment by the Seller pursuant to this Section 7.3 shall only be made to the extent the Seller has funds ----------- available for such purpose after amounts payable to Securityholders (as defined in the Receivables Purchase Agreement) have been paid in full. Each party hereto agrees that the failure to make such payment shall not give rise to any claim against the Seller. ARTICLE VIII OTHER MATTERS RELATING TO THE SERVICER Section 8.1 Liability of the Servicer. The Servicer shall be liable in ------------------------- accordance herewith only to the extent of the obligations specifically undertaken by the Servicer in such capacity herein. Section 8.2 Merger or Consolidation of, or Assumption of the Obligations ------------------------------------------------------------ of, the Servicer. The Servicer shall not consolidate with or merge into any - ---------------- other corporation or convey or transfer its properties and assets substantially as an entirety to any Person, unless: (1) the Person formed by such consolidation or into which the Servicer is merged or the Person which acquires by conveyance or transfer the properties and assets of the Servicer substantially as an entirety shall be a corporation or a banking association organized and existing under the laws of the United States of America or any State or the District of Columbia, and, if the Servicer is not the surviving entity, shall expressly assume, by an agreement supplemental hereto, executed and delivered to the Trustee in form satisfactory to the Trustee, the performance of every covenant and obligation of the Servicer hereunder; (2) The Servicer has delivered notice of such consolidation, merger, conveyance or transfer to each of the Rating Agencies; and 68 (iii) the Servicer has delivered to the Trustee and each Enhancement Provider an Officer's Certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental agreement comply with this Section 8.2 and that all conditions precedent herein provided for relating to such transaction have been complied with. Section 8.3 Limitation on Liability of the Servicer and Others. Except as -------------------------------------------------- provided in Section 8.4 with respect to the Trust and the Trustee, neither the ----------- Servicer nor any of the directors or officers or employees or agents of the Servicer shall be under any liability to the Trust, the Trustee, the Certificateholders or any other Person for any action taken or for refraining from the taking of any action in its capacity as Servicer pursuant to this Agreement; provided, however, that this provision shall not protect the Servicer -------- ------- or any such person against any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of its willful misconduct hereunder. The Servicer and any director or officer or employee or agent of the Servicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any ----- ----- Person respecting any matters arising hereunder. The Servicer shall not be under any obligation to appear in, prosecute or defend any legal action which does not arise out of its activities in servicing the Receivables in accordance with this Agreement which in its reasonable opinion may involve it in any expense or liability. Section 8.4 Indemnification of the Trust and the Trustee. The Servicer -------------------------------------------- shall indemnify and hold harmless the Trust and the Trustee from and against any loss, liability, expense, damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of activities of the Trust or the Trustee pursuant to this Agreement, including those arising from acts or omissions of the Servicer pursuant to this Agreement, including, but not limited to any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim; provided, however, that the -------- ------- Servicer shall not indemnify the Trust or the Trustee if such acts, omissions or alleged acts or omissions constitute fraud, negligence, breach of fiduciary duty or misconduct by the Trustee; provided further, that the Servicer shall not -------- ------- indemnify the Trust, the Trustee, any Investor Certificateholders or any Certificate Owners for any liabilities, costs or expenses of the Trust with respect to any action taken by the Trustee at the request of such Investor Certificateholders; provided further, that the Servicer shall not indemnify the -------- ------- Trust, any Investor Certificateholders or any Certificate Owners as to any losses, claims or damages incurred by any of them in their capacities as investors, including without limitation losses incurred as a result of defaulted Receivables or Receivables which are written off as uncollectible; and provided -------- further, that the Servicer shall not indemnify the Trust, any Investor - ------- Certificateholders or the Certificate Owners for 69 any liabilities, costs or expenses of the Trust, such Investor Certificateholders or the Certificate Owners arising under any tax law, including without limitation any federal, state or local income or franchise taxes or any other tax imposed on or measured by income (or any interest or penalties with respect thereto or arising from a failure to comply therewith) required to be paid by the Trust, such Investor Certificateholders or such Certificate Owners in connection herewith to any taxing authority. The provisions of this indemnity shall run directly to and be enforceable by an injured party subject to the limitations hereof. Any indemnification pursuant to this Section shall not be payable from the assets of the Trust. The obligations of the Servicer under this Section 8.4 shall survive ----------- the termination of the Trust and the resignation or removal of the Trustee. Section 8.5 The Servicer Not to Resign. The Servicer shall not resign -------------------------- from the obligations and duties hereby imposed on it except upon determination that (i) the performance of its duties hereunder is or becomes impermissible under applicable law and (ii) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any such determination permitting the resignation of the Servicer shall be evidenced as to clause (i) above by an Opinion of Counsel to ---------- such effect delivered to the Trustee. No such resignation shall become effective until the Trustee or a Successor Servicer shall have assumed the responsibilities and obligations of the Servicer in accordance with Section ------- 10.2. If the Trustee is unable within 120 days of the date of such determination - ---- to appoint a Successor Servicer, the Trustee shall serve as Successor Servicer hereunder. Notice of any resignation by the Servicer shall be given to each Rating Agency by the resigning Servicer. Section 8.6 Access to Certain Documentation and Information Regarding --------------------------------------------------------- the Receivables. The Servicer shall provide to the Trustee access to the - --------------- documentation regarding the Accounts and the Receivables in such cases where the Trustee is required in connection with the enforcement of the rights of the Investor Certificateholders, or by applicable statutes or regulations to review such documentation, such access being afforded without charge but only (i) upon reasonable request, (ii) during normal business hours, (iii) subject to the Servicer's normal security and confidentiality procedures and (iv) at offices designated by the Servicer. Nothing in this Section 8.6 shall derogate from the ----------- obligation of Seller, the Trustee or the Servicer to observe any applicable law prohibiting disclosure of information regarding the Obligors and the failure of the Servicer to provide access as provided in this Section 8.6 as a result of ----------- such obligation shall not constitute a breach of this Section 8.6. ----------- 70 Section 8.7 Delegation of Duties. It is understood and agreed by the -------------------- parties hereto that the Servicer may delegate certain of its duties hereunder to Total Systems Services, Inc., a Georgia corporation and to First Data Resources Inc., a Delaware corporation. In addition, in the ordinary course of business, the Servicer may at any time delegate any duties hereunder to any other Person who agrees to conduct such duties in accordance with the Cardholder Guidelines. Any such delegations shall not relieve the Servicer of its liability and responsibility with respect to such duties, and shall not constitute a resignation within the meaning of Section 8.5. ----------- Section 8.8 Examination of Records. The Servicer shall clearly and ---------------------- unambiguously identify each Account (including any Additional Account designated pursuant to Section 2.6) in its computer or other records to reflect that the ----------- Receivables arising in such Account have been transferred by Seller to the Trust pursuant to this Agreement. The Servicer shall, prior to the sale or transfer to a third party of any receivable held in its custody, examine its computer and other records to determine that such receivable is not a Receivable. ARTICLE IX PAY OUT EVENTS Section 9.1 Pay Out Events. If any one of the following events shall -------------- occur during either the Revolving Period or the Controlled Amortization Period with respect to any Series of the Investor Certificates: (a) Seller or FCNB shall (i) become insolvent, (ii) fail to pay its debts generally as they become due, (iii) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, (iv) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, (A) within 10 business days after Seller or FCNB has knowledge of such proceeding or the filing thereof either (1) the petition instituting same has not been dismissed or (2) an order has not been entered by the court having jurisdiction which allows continued transfer to the Trust of Principal Receivables with no adverse effect to the Trust or the Investor Certificateholders or (B) an order as contemplated in clause (A)(2) above having ------------- previously been entered, is no longer in effect other than by reason of the termination of such proceeding, or (v) become unable for any reason to transfer Receivables to the Trust or Seller in accordance with the provisions of this Agreement or the Receivables Purchase Agreement, as the case may be; or 71 (b) the Trust or Seller shall become an "investment company" within the meaning of the Investment Company Act of 1940, as amended; a pay out event (a "Trust Pay Out Event") shall occur without any notice or ------------------- other action on the part of the Trustee or the Investor Certificateholders, immediately upon the occurrence of such event. Section 9.2 Additional Rights Upon the Occurrence of Certain Events. --------------------------------------------------------- If Seller shall consent to the appointment of a conservator or receiver or liquidator for the winding-up or liquidation of its affairs, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator for the winding-up or liquidation of its affairs shall have been entered against Seller (an "Insolvency Event"), Seller shall on the day of such Insolvency Event ---------------- immediately cease to transfer Principal Receivables and Discount Option Receivables to the Trust and shall promptly give notice to Trustee of such Insolvency Event. Notwithstanding any cessation of the transfer to the Trust of additional Principal Receivables and Discount Option Receivables, Finance Charge Receivables, whenever created, accrued in respect of Principal Receivables or Discount Option Receivables which have been transferred to the Trust shall continue to be a part of the Trust, and Collections with respect thereto shall continue to be allocated and paid in accordance with Article IV. ---------- ARTICLE X SERVICER DEFAULTS Section 10.1 Servicer Defaults. If any one of the following events (a ----------------- "Servicer Default") shall occur and be continuing: ---------------- (a) any failure by the Servicer to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Article IV ---------- or to make any required drawing, withdrawal, or payment under any Enhancement on or before the date occurring three Business Days after the date such payment, transfer, deposit, withdrawal or drawing, or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement; or (b) failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement which has a material adverse effect on the Certificateholders, which continues unremedied for a period of 30 days after the earlier to occur of (i) knowledge by a Responsible Officer of the Servicer of such failure, or (ii) the date on which written notice of such failure requiring the same to be remedied shall have 72 been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Investor Amount of any Series affected thereby; or the Servicer's delegation of its duties under this Agreement except as permitted by Section 8.7; or - ----------- (c) any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect for a period of 30 days after the earlier to occur of (i) knowledge of same by a Responsible Officer of the Servicer, or (ii) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Investor Amount of any Series affected thereby, or if such failure cannot be cured within such 30-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and prosecute the curing of such failure with diligence and continuity; or (d) the Servicer shall (i) become insolvent, (ii) fail to pay its debts generally as they become due, (iii) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (iv) become a party to (or be made the subject of) any proceeding provided for by any Debtor Relief Law, other than as a creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 60 days after its filing; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating greater than 50% of the Investor Amount of any Series affected thereby, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may ------------------ terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof (other than its rights and interest, if any, as holder of the Seller Interest under this Agreement). After receipt by the Servicer of such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.2, all authority and power of the Servicer under this ------------ Agreement shall pass to and be vested in a Successor Servicer; and, without limitation, the Trustee is hereby authorized and empowered (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Servicer agrees to cooperate with the Trustee 73 and such Successor Servicer in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Receivables provided for under this Agreement, including, without limitation, all authority over all Collections which shall on the date of transfer be held by the Servicer for deposit, or which have been deposited by the Servicer, in any Collection Account, Finance Charge Account or other Investor Account, or the Principal Account, or which shall thereafter be received with respect to the Receivables, and in assisting the Successor Servicer and in enforcing all rights to Insurance Proceeds. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer - ------------ information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. The Servicer shall, on the date of any servicing transfer, transfer all of its rights and obligations, if any, in respect of any Enhancement to the Successor Servicer. Section 10.2 Trustee to Act; Appointment of Successor. ---------------------------------------- (a) On and after the receipt by the Servicer of a Termination Notice pursuant to Section 10.1, the Servicer shall continue to perform all servicing ------------ functions under this Agreement until the date specified in the Termination Notice or otherwise specified by the Trustee in writing or, if no such date is specified in such Termination Notice or otherwise specified by the Trustee, until a date mutually agreed upon by the Servicer and Trustee. The Trustee shall as promptly as possible after the giving of a Termination Notice appoint (with the consent of the Holders of Investor Certificates evidencing Undivided Interests aggregating greater than 50% of the Investor Amount of each Series) a successor servicer (the "Successor Servicer"), and such Successor Servicer shall ------------------ accept its appointment by a written assumption in a form acceptable to the Trustee. The Trustee may obtain bids from any potential successor servicer. If the Trustee is unable to obtain any bids from any potential successor servicer and the Servicer delivers an Officer's Certificate to the effect that it cannot in good faith cure the Servicer Default which gave rise to a transfer of servicing, then the Trustee shall offer Seller the right to accept retransfer of all the Receivables and Seller may accept retransfer of all the Receivables, provided, however, that if the long-term unsecured debt obligations of Seller - -------- ------- are not rated at the time of such purchase at least Baa-3 by Moody's and BBB- by Standard & Poor's, no such retransfer shall occur unless Seller shall deliver an Opinion of 74 Counsel reasonably acceptable to the Trustee that such retransfer would not constitute a fraudulent conveyance of Seller. The retransfer deposit amount for such a retransfer shall be equal to the higher of the sum of (i) the outstanding principal balance of the Investor Certificates, plus accrued interest thereon, at the Certificate Rate, through the date of retransfer and (ii) the average bid price quoted by two recognized dealers for a similar security rated in the highest rating category by Moody's and Standard & Poor's and having a remaining maturity substantially similar to the remaining maturity of the Certificates. In the event that a Successor Servicer has not been appointed and has not accepted its appointment at the time when the Servicer ceases to act as Servicer, the Trustee without further action shall automatically be appointed the Successor Servicer. Notwithstanding the above, the Trustee shall, if it is legally unable so to act, petition a court of competent jurisdiction to appoint any established financial institution having a net worth of not less than $100,000,000 and whose regular business includes the servicing of installment sales charge, credit and/or credit card account receivables as the Successor Servicer hereunder. (b) Upon its appointment, the Successor Servicer shall be the successor in all respects to the Servicer with respect to servicing functions under this Agreement and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof, and all references in this Agreement to the Servicer shall be deemed to refer to the Successor Servicer. Any Successor Servicer, by its acceptance of its appointment, will automatically agree to be bound by the terms and provisions of any Enhancement to the extent that such terms apply to the Servicer. (c) In connection with such appointment and assumption, the Trustee shall be entitled to such compensation, or may make such arrangements for the compensation of the Successor Servicer out of Collections, as it and such Successor Servicer shall agree; provided, however, that no such compensation -------- ------- shall be in excess of the Monthly Servicing Fees permitted to the Servicer pursuant to Section 3.2. The holder of the Seller Interest agrees that if the ----------- Servicer is terminated hereunder, it will agree, at the request of the Trustee or any Successor Servicer, to deposit a portion of the Collections in respect of Finance Charge Receivables that it is entitled to receive pursuant to Article ------- IV, to pay its share of the compensation of the Successor Servicer. - -- Notwithstanding anything to the contrary in this Agreement or any other Transaction Document, any deposit by the Seller pursuant to this Section 10.2(c) --------------- shall only be made to the extent the Seller has funds available for such purpose after amounts payable to Securityholders (as defined in the Receivables Purchase Agreement) have been paid in full. Each party hereto agrees that the failure to make such deposit shall not give rise to any claim against the Seller. 75 (d) All authority and power granted to the Successor Servicer under this Agreement shall automatically cease and terminate upon termination of the Trust pursuant to Section 12.1 and shall pass to and be vested in Seller and, ------------ without limitation, Seller is hereby authorized and empowered to execute and deliver, on behalf of the Successor Servicer, as attorney-in-fact or otherwise, all documents and other instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights. The Successor Servicer agrees to cooperate with Seller in effecting the termination of the responsibilities and rights of the Successor Servicer to conduct servicing on the Receivables. The Successor Servicer shall transfer its electronic records relating to the Receivables to Seller in such electronic form as Seller may reasonably request and shall transfer all other records, correspondence and documents to Seller in the manner and at such times as Seller shall reasonably request. To the extent that compliance with this Section 10.2 shall require the Successor Servicer to disclose to Seller - ------------ information of any kind which the Successor Servicer deems to be confidential, Seller shall be required to enter into such customary licensing and confidentiality agreements as the Successor Servicer shall deem necessary to protect its interests. Section 10.3 Notification to Certificateholders. Upon the occurrence ---------------------------------- of any Servicer Default, the Servicer shall give prompt written notice thereof to the Trustee and the Trustee shall give notice to the Investor Certificateholders at their respective addresses appearing in the Certificate Register. Upon any termination or appointment of a Successor Servicer pursuant to this Article X, the Trustee shall give prompt written notice thereof to --------- Investor Certificateholders at their respective addresses appearing in the Certificate Register. A copy of any notice given pursuant to this Section 10.3 ------------ shall be delivered to each Rating Agency. Section 10.4 Waiver of Past Defaults. The Holders of Investor ----------------------- Certificates evidencing Undivided Interests aggregating greater than 50% of the Investor Amount of any Series affected thereby may, on behalf of all Holders of Certificates, waive any default by the Servicer or Seller in the performance of its obligations hereunder and its consequences, except a default in the failure to make any required deposits or payments in accordance with Article IV, ---------- provided, however, that no such waiver shall affect any rights of, or - -------- ------- obligations to, any Enhancement Provider hereunder. Upon any such waiver of a past default, such default shall cease to exist, and any default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. Notice of any such waiver shall be given to each Rating Agency by the Servicer. 76 ARTICLE XI THE TRUSTEE Section 11.1 Duties of Trustee. ----------------- (a) The Trustee, prior to the occurrence of a Servicer Default and after the curing of all Servicer Defaults which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. If a Servicer Default has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Agreement, and use the same degree of care and skill in the exercise of such rights and powers, as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs. (b) The Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement. The Trustee shall give prompt written notice to the Certificateholders of any material lack of conformity of any such instrument to the applicable requirements of this Agreement discovered by the Trustee which would entitle a specified percentage of the Certificateholders to take any action pursuant to this Agreement. (c) Subject to subsection 11.1(a), no provision of this Agreement ------------------ shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own misconduct; provided, -------- however, that: - ------- (i) the Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; (ii) the Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Investor Amount of any Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Agreement; and 77 (iii) the Trustee shall not be charged with knowledge of any failure by the Servicer to comply with the obligations of the Servicer referred to in clauses (b), (c) and (d) of Section 10.1 unless ----------- --- --- ------------ a Responsible Officer of the Trustee obtains actual knowledge of such failure or the Trustee receives written notice of such failure from the Servicer or any Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 10% of the Investor Amount of any Series. (d) The Trustee shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it, and none of the provisions contained in this Agreement shall in any event require the Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such time, if any, as the Trustee shall be the successor to, and be vested with the rights, duties, powers and privileges of, the Servicer in accordance with the terms of this Agreement. (e) Except for actions expressly authorized by this Agreement, the Trustee shall take no action reasonably likely to impair the interests of the Trust in any Receivable now existing or hereafter arising or to impair the value of any Receivable now existing or hereafter arising. (f) Except as provided in Section 2.6, the Trustee shall have no ----------- power to vary the corpus of the Trust including, without limitation, the power to (i) accept any substitute obligation for a Receivable initially assigned to the Trust under Section 2.1 or 2.6, (ii) add any other investment, obligation or ----------- --- security to the Trust or (iii) withdraw from the Trust any Receivables, except for a withdrawal permitted under subsection 2.4(d) or 2.4(e), Article IV, or ----------------- ------ ---------- Section 9.2 or 12.1. - ----------- ---- (g) In the event that the Paying Agent or the Transfer Agent and Registrar shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Transfer Agent and Registrar, as the case may be, under this Agreement, the Trustee shall be obligated promptly to perform such obligation, duty or agreement in the manner so required. (h) If Seller has agreed to transfer any of its credit card receivables (other than the Receivables) to another Person, upon the written request of Seller, the Trustee will enter into such intercreditor agreements with the transferee of such receivables as are customary and necessary separately to identify the rights of the Trust and such other Person in Seller's, as the case may be, credit card receivables; provided, that the Trust -------- shall not enter into any intercreditor agreement which could 78 adversely affect the interests of the Certificateholders and, upon the request of the Trustee, Seller will deliver an Opinion of Counsel on any matters relating to such intercreditor agreement, reasonably requested by the Trustee. Section 11.2 Certain Matters Affecting the Trustee. Except as ------------------------------------- otherwise provided in Section 11.1: ------------ (a) the Trustee may rely on and shall be protected in acting on, or in refraining from acting in accord with, any resolution, Officer's Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented to it pursuant to this Agreement by the proper party or parties; (b) the Trustee may consult with counsel and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such Opinion of Counsel; (c) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligations, upon the occurrence of any Servicer Default (which has not been cured), to exercise such of the rights and powers vested in it by this Agreement, and to use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs; (d) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement; (e) the Trustee shall not be bound to make any investigation into the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Investor Amount of any Series; 79 (f) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian, and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney or custodian appointed with due care by it hereunder; and (g) except as may be required by subsection 11.1(a), the Trustee ------------------ shall not be required to make any initial or periodic examination of any documents or records related to the Receivables or the Accounts for the purpose of establishing the presence or absence of defects, the compliance by Seller with its representations and warranties or for any other purpose. Section 11.3 Trustee Not Liable for Recitals in Certificates. The ----------------------------------------------- Trustee assumes no responsibility for the correctness of the recitals contained herein and in the Certificates (other than the certificate of authentication on the Certificates). Except as set forth in Section 11.15, the Trustee makes no ------------- representations as to the validity or sufficiency of this Agreement or the Supplement or of the Certificates (other than the certificate of authentication on the Certificates) or of any Receivable or related document. The Trustee shall not be accountable for the use or application by Seller of any of the Certificates or of the proceeds of such Certificates, or for the use or application of any funds paid to Seller in respect of the Receivables or deposited in the Collection Account, any Principal Account, any Finance Charge Account, the Excess Funding Account or any other Series Account, or withdrawn from the Collection Account, by the Servicer. Section 11.4 Trustee May Own Certificates. The Trustee in its ---------------------------- individual or any other capacity may become the owner or pledgee of Investor Certificates with the same rights as it would have if it were not the Trustee. Section 11.5 Servicer to Pay Trustee's Fees and Expenses. Servicer ------------------------------------------- covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to receive, reasonable compensation (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) for all services rendered by it in the execution of the Trust hereby created and in the exercise and performance of any of the powers and duties hereunder of the Trustee, and, subject to Section 8.4, Servicer will pay ----------- or reimburse the Trustee (without reimbursement from any Investor Account or otherwise) upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Agreement (including the reasonable fees and expenses of its agents and counsel) except any such expense, disbursement or advance as may arise from its negligence or bad faith and except as provided in the following sentence. If the Trustee is appointed Successor Servicer pursuant to Section ------- 10.2, the provisions of this Section 11.5 shall not apply to expenses, - ---- ------------ 80 disbursements and advances made or incurred by the Trustee in its capacity as Successor Servicer. The obligations of Servicer under this Section 11.5 shall survive the ------------ termination of the Trust and the resignation or removal of the Trustee. Section 11.6 Eligibility Requirements for Trustee. The Trustee ------------------------------------ hereunder shall at all times be a corporation organized and doing business under the laws of the United States of America or any state thereof authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $100,000,000 and subject to supervision or examination by Federal or state authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purpose of this Section 11.6, ------------ the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In addition, no institution shall qualify as a Successor Trustee hereunder unless its long-term debt obligations are rated at least BBB- and Baa3 by Standard & Poor's and Moody's, respectively. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section ------- 11.6, the Trustee shall resign immediately in the manner and with the effect - ---- specified in Section 11.7. ------------ Section 11.7 Resignation or Removal of Trustee. --------------------------------- (a) The Trustee may at any time resign and be discharged from the Trust hereby created by giving written notice thereof to Seller and the Servicer. Upon receiving such notice of resignation, Seller shall promptly appoint a successor trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee. (b) If at any time the Trustee shall cease to be eligible in accordance with the provisions of Section 11.6 and shall fail to resign after ------------ written request therefor by Seller, or if at any time the Trustee shall be legally unable to act, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then Seller may, but shall not be required to, remove the Trustee and promptly appoint a successor trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee. 81 (c) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 11.7 shall ------------ not become effective until acceptance of appointment by the successor trustee as provided in Section 11.8 and any liability of the Trustee arising hereunder ------------ shall survive such appointment of a successor trustee. Section 11.8 Successor Trustee. ----------------- (a) Any successor trustee appointed as provided in Section 11.7 shall ------------ execute, acknowledge and deliver to Seller and to its predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee herein. The predecessor Trustee shall deliver to the successor trustee all documents and statements held by it hereunder; and Seller and the predecessor Trustee shall execute and deliver such instruments and do such other things as may reasonably be required for fully and certainly vesting and confirming in the successor trustee all such rights, powers, duties and obligations. (b) No successor trustee shall accept appointment as provided in this Section 11.8 unless at the time of such acceptance such successor trustee shall - ------------ be eligible under the provisions of Section 11.6. ------------ (c) Upon acceptance of appointment by a successor trustee as provided in this Section 11.8, such successor trustee shall mail notice of such ------------ succession hereunder to all Certificateholders at their addresses as shown in the Certificate Register, and also to each Rating Agency. Section 11.9 Merger or Consolidation of Trustee. Any Person into ---------------------------------- which the Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Person succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be eligible under the provisions of Section 11.6, without the execution or filing of any paper or any ------------ further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. Section 11.10 Appointment of Co-Trustee or Separate Trustee. --------------------------------------------- (a) Notwithstanding any other provisions of this Agreement, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any 82 part of the Trust may at the time be located, the Trustee shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as a co-trustee or co-trustees, or separate trustee or separate trustees, of all or any part of the Trust, and to vest in such Person or Persons, in such capacity and for the benefit of the Certificateholders, such title to the Trust, or any part thereof, and, subject to the other provisions of this Section 11.10, ------------- such powers, duties, obligations, rights and trusts as the Trustee may consider necessary or desirable. No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section ------- 11.6 and no notice to Certificateholders of the appointment of any co-trustee or - ---- separate trustee shall be required under Section 11.8. ------------ (b) Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions: (i) all rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Trustee joining in such act), except to the extent that under any laws of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Trustee; (ii) no trustee hereunder shall be liable by reason of any act or omission of any other trustee hereunder; and (iii) the Trustee may at any time accept the resignation of or remove any separate trustee or co-trustee. (c) Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article XI. Each separate trustee and co-trustee, upon ---------- its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording 83 protection to, the Trustee. Every such instrument shall be filed with the Trustee and a copy thereof given to the Servicer. (d) Any separate trustee or co-trustee may at any time constitute the Trustee its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect to this Agreement on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee. Section 11.11 Tax Returns. In the event the Trust shall be required to file ----------- tax returns, the Trustee, as soon as practicable after it is made aware of such requirement, shall prepare or cause to be prepared and is authorized hereunder to sign any tax returns required to be filed by the Trust and, to the extent possible, shall file such returns at least five days before such returns are due to be filed. The Servicer shall prepare or shall cause to be prepared all tax information required by law to be distributed to Certificateholders and shall deliver such information to the Trustee at least five days prior to the date it is required by law to be distributed to Certificateholders. The Servicer, upon request, will furnish the Trustee with all such information known to the Servicer as may be reasonably required in connection with the preparation of all tax returns of the Trust. In no event shall the Trustee or the Servicer be liable for any liabilities, costs or expenses of the Trust, the Investor Certificateholders or the Certificate Owners arising under any tax law, including without limitation Federal, state or local income or excise taxes or any other tax imposed on or measured by income (or any interest or penalty with respect thereto or arising from a failure to comply therewith). Nothing in this Section 11.11 shall be construed as inconsistent with the characterization of - ------------- the Investor Certificates as indebtedness of Seller for purposes of federal, state and local income or franchise taxes and any other tax imposed upon or measured by income, as expressed in Section 3.7. ----------- Section 11.12 Trustee May Enforce Claims Without Possession of ------------------------------------------------ Certificates. All rights of action and claims under this Agreement or the - ------------ Certificates may be prosecuted and enforced by the Trustee without the possession of any of the Certificates or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee. Any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Certificateholders in respect of which such judgment has been obtained. 84 Section 11.13 Suits for Enforcement. If a Servicer Default shall occur and --------------------- be continuing, the Trustee, in its discretion, may, subject to the provisions of Section 10.1, proceed to protect and enforce its rights and the rights of the - ------------ Certificateholders under this Agreement or any Supplement by a suit, action or proceeding in equity or at law or otherwise, whether for the specific performance of any covenant or agreement contained in this Agreement or any Supplement or in aid of the execution of any power granted in this Agreement or any Supplement or for the enforcement of any other legal, equitable or other remedy as the Trustee, being advised by counsel, shall deem most effectual to protect and enforce any of the rights of the Trustee or the Certificateholders. Section 11.14 Rights of Certificateholders to Direct Trustee. Holders of ---------------------------------------------- Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Investor Amount of any Series affected shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee; provided, however, that, subject to Section 11.1, the Trustee shall have the - -------- ------- ------------ right to decline to follow any such direction if the Trustee being advised by counsel determines that the action so directed may not lawfully be taken, or if the Trustee in good faith shall, by a Responsible Officer or Responsible Officers of the Trustee, determine that the proceedings so directed would be illegal or involve it in personal liability or be unduly prejudicial to the rights of Certificateholders not parties to such direction; and provided further -------- ------- that nothing in this Agreement shall impair the right of the Trustee to take any action deemed proper by the Trustee and which is not inconsistent with such direction. Section 11.15 Representations and Warranties of Trustee. The Trustee ----------------------------------------- represents and warrants that: (i) The Trustee is a banking corporation organized, existing and in good standing under the laws of the State of Illinois; (ii) The Trustee has full power, authority and right to execute, deliver and perform this Agreement, and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement; and (iii) This Agreement has been duly executed and delivered by the Trustee. Section 11.16 Maintenance of Office or Agency. The Trustee will maintain at ------------------------------- its expense in the Borough of Manhattan, The City of New York, an office or offices or agency or agencies where notices and demands to or upon the Trustee in 85 respect of the Certificates and this Agreement may be served. The Trustee initially appoints the Corporate Trust Office as its office for such purposes in New York. The Trustee will give prompt written notice to the Servicer and to Certificateholders of any change in the location of the Certificate Register or any such office or agency. Section 11.17 Requests for Agreement. A copy of this Agreement may be ---------------------- obtained by any Certificateholder by a request in writing to the Trustee addressed to the Corporate Trust Office and will be provided at the expense of Seller. ARTICLE XII TERMINATION Section 12.1 Termination of Trust. The respective obligations and -------------------- responsibilities of Seller, the Servicer and the Trustee created hereby (other than the obligation of the Trustee to make payments to Certificateholders as hereafter set forth) shall terminate, except with respect to the duties described in subsections 2.4(c) and 12.3(b), upon the earlier of (i) the day, if ------------------ ------ any, designated by Seller after the Distribution Date following the date on which funds shall have been deposited in the Distribution Account sufficient to pay the Aggregate Investor Amount, plus Certificate Interest accrued through the ---- last day of the month preceding such Distribution Date in full and (ii) the day on which final payment is made under the Certificates (any such day under either the preceding clause (i) or this clause (ii) is referred to as a "Trust ---------- ----------- ----- Termination Date"); but in no event later than the Final Trust Termination Date. - ---------------- Section 12.2 Optional Purchase and Final Maturity Date of Investor ----------------------------------------------------- Certificates. - ------------ (a) If so provided in any Supplement, Seller may, but shall not be obligated to, repurchase Investor Certificates of the related Series by depositing into the Distribution Account, on the Transfer Date preceding the Distribution Date specified in such Supplement, the amount so specified therein; provided, however, that if the long-term unsecured debt obligations of Seller - -------- ------- are not rated at least Baa-3 by Moody's and BBB- by Standard & Poor's at the time of such purchase, such purchase shall not occur unless Seller shall deliver an Opinion of Counsel reasonably acceptable to the Trustee that such purchase of Investor Certificates would not constitute a fraudulent conveyance by Seller. On the Distribution Date following the Transfer Date on which such deposit is made, Seller shall be deemed, automatically and without requirement for any act on the part of Seller or of such Series any other Person, to have acquired all outstanding Certificates and to have retired the Certificates, thereby resulting in an increase in the Seller Amount. 86 (b)The entire Investor Amount with respect to each Series shall be due and payable no later than the related Series Termination Date. If on the Determination Date in the month immediately preceding the month in which the Series Termination Date for any Series occurs (after giving effect to all transfers, withdrawals, deposits and drawings to occur on the next Transfer Date and the payment of principal on the Investor Certificates to be made on the related Distribution Date), the Investor Amount would be greater than zero, the Servicer shall sell, dispose of, or otherwise liquidate, in a commercially reasonable manner and on commercially reasonable terms (which shall include the solicitation of competitive bids from Persons who are not Affiliates of Seller), within 30 days of such Determination Date, an amount of Receivables equal to (i) 100%, plus the lesser of (A) the Seller Percentage or (B) the Minimum Seller Percentage for that Series, multiplied by (ii) the Investor Amount determined as of the date of such sale, disposition or liquidation; provided, however, that -------- ------- the Servicer shall give Seller at least 10 days advance written notice of such sale, disposition or other liquidation. Seller shall have the option, exercisable at any time after the Servicer has obtained an offer from any Person that is not an Affiliate of Seller and prior to the consummation of such sale, disposition or liquidation by giving notice of the exercise thereof to the Servicer, to purchase such Receivables for cash (payable in immediately payable funds on the Series Termination Date) for the lesser of (i) 100% of the amount of such Receivables, or (ii) the highest price offered therefor pursuant to such proposed sale, disposition or other liquidation. The proceeds received upon the sale, disposition or other liquidation of such Receivables in an amount up to (i) the Investor Amount on the Series Termination Date, plus (ii) unpaid ---- interest thereon as of the Series Termination Date, less (iii) amounts on deposit on such date in the related Series Accounts shall be deposited into the Distribution Account on the Series Termination Date with respect to such Series, and shall be distributed to the Holders of the Certificates in final payment thereof pursuant to the terms of Section 12.3. Proceeds received in excess of ------------ the amount to be deposited as aforesaid shall be treated as Collections on the Receivables and shall be allocated and deposited in accordance with the provisions of Article IV; provided that the Servicer shall determine ---------- -------- conclusively the amount of such proceeds which are allocable to Finance Charge Receivables and the amount of such proceeds which are allocable to Principal Receivables. In the event that the proceeds received upon the sale, disposition or other liquidation of such Receivables is less than the result of (i) the Investor Amount for such Series on the Series Termination Date, plus (ii) unpaid ---- interest thereon, minus (iii) amounts on deposit on such date in the related ----- Series Accounts, the Servicer will make a withdrawal or drawing or take other action permitted by any applicable Enhancement, and shall deposit all amounts thereby obtained in the Distribution Account on the Final Trust Termination Date, and the amount so withdrawn shall be distributed to the Holders of Certificates in final payment thereof pursuant to the terms of Section 12.3; ------------ provided, that if the Servicer fails to make such - -------- 87 withdrawal or drawing or take such other action, then the Trustee may make such withdrawal and deposit such amounts into the Distribution Account. (c) The amount deposited pursuant to subsections 12.2(a) and 12.2(b) shall ------------------- ------- be paid to the Investor Certificateholders in the manner provided in Section ------- 12.3. - ---- Section 12.3 Final Distributions. ------------------- (a) Written notice of any termination, specifying the Distribution Date upon which the Investor Certificateholders may surrender their Certificates for payment of the final distribution and cancellation, shall be given (subject to at least two days' prior notice from the Servicer to the Trustee) by the Trustee to Investor Certificateholders mailed (unless otherwise specified in a Supplement) not later than the fifth day of the month of such final distribution specifying (a) the Distribution Date (which shall be the Distribution Date in the month in which the deposit is made pursuant to subsection 2.4(e), 12.1 or ----------------- ---- 12.2(a)) upon which final payment of the Investor Certificates will be made upon - ------- presentation and surrender of Investor Certificates at the office or offices therein designated, (b) the amount of any such final payment and (c) that the Record Date otherwise applicable to such Distribution Date is not applicable, payments being made only upon presentation and surrender of the Investor Certificates at the office or offices therein specified. The Servicer's notice to the Trustee in accordance with the preceding sentence shall be accompanied by an Officer's Certificate setting forth the information specified in Section 3.5 ----------- covering the period during the then current calendar year through the date of such notice. The Trustee shall give such notice to the Transfer Agent and Registrar and the Paying Agent at the time such notice is given to Investor Certificateholders. (b) All funds on deposit in the Distribution Account, in the case of a final payment pursuant to Section 12.2, in the case of a termination of the ------------ Trust pursuant to Section 12.1 (and notwithstanding such termination), shall ------------ continue to be held in trust for the benefit of the Certificateholders and the Paying Agent or the Trustee shall pay such funds to the appropriate Certificateholders upon surrender of their Certificates. In the event that all of the Investor Certificateholders shall not surrender their Certificates for cancellation within six months after the date specified in the above-mentioned written notice, the Trustee shall give a second written notice to the remaining Investor Certificateholders to surrender their Certificates for cancellation and receive the final distribution with respect thereto. If within one year after the second notice all the Investor Certificates shall not have been surrendered for cancellation, the Trustee may take appropriate steps, or may appoint an agent to take appropriate steps, to contact the remaining Investor Certificateholders concerning surrender of their Certificates, and the cost thereof shall be paid out of the funds in the Distribution Account held for the benefit of such Investor Certificateholders. 88 Section 12.4 Termination Rights of the Holder of the Seller Interest. Upon ------------------------------------------------------- the termination of the Trust pursuant to Section 12.1, the Trustee shall return ------------ to the holder of the Seller Interest (without recourse, representation or warranty) all right, title and interest of the Trust in, to and under the Receivables, whether then existing or thereafter created, and all monies due or to become due with respect thereto (including all accrued interest theretofore posted as Finance Charge Receivables), all proceeds thereof and Insurance Proceeds relating thereto except for amounts held by the Trustee pursuant to subsection 12.3(b). The Trustee shall execute and deliver such instruments of - ------------------ transfer, in each case without recourse, as shall be reasonably requested by the Holder of the Exchangeable Trust Certificate to vest in the Holder of the Exchangeable Trust Certificate all right, title and interest which the Trust had in the Receivables. ARTICLE XIII MISCELLANEOUS PROVISIONS Section 13.1 Amendment. --------- (a) This Agreement or any Supplement may be amended from time to time by the Servicer, Seller and the Trustee, without the consent of any of the Certificateholders, to cure any ambiguity, to correct or supplement any provisions herein which may be inconsistent with any other provisions herein, to qualify the transfers of Receivables pursuant to this Agreement as sales under generally accepted accounting principles or to add any other provisions with respect to matters or questions arising under this Agreement which shall not be inconsistent with the provisions of this Agreement; provided, however, that such -------- ------- action shall not, as evidenced by an Opinion of Counsel in a form satisfactory to the Rating Agencies, adversely affect in any material respect the interests of the Certificateholders; provided, further, that prior to entering into any -------- ------- amendment to qualify the transfers of Receivables pursuant to this Agreement as sales under generally accepted accounting principles, the Seller shall deliver to each Rating Agency an Officer's Certificate to the effect that (i) such amendment is being entered into to qualify the transfers of Receivables pursuant to this Agreement as sales under generally accepted accounting principles and (ii) based upon discussions with the Seller's accountants, such amendment will in fact qualify the transfers of Receivables pursuant to this Agreement as sales under generally accepted accounting principles. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's rights, duties or immunities under this Agreement or otherwise. For purposes of this Section 13.1 only, no Transfer Agreement or Retransfer Agreement regarding ------------ the addition or removal of Receivables from the Trust as provided in 89 Sections 2.6 and 2.7, respectively, executed in accordance with the provisions - ------------ --- hereof and substantially in the form of Exhibit A or C, respectively, with no --------- - material additional terms, shall be considered amendments to this Agreement. (b) This Agreement or any Supplement may also be amended from time to time by the Servicer, Seller and the Trustee with the consent of the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 66-2/3% of the Investor Amount of each Series adversely affected, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Supplement or modifying in any manner the rights of the Investor Certificateholders of any Series then issued and outstanding; provided, however, that no such amendment shall (i) reduce in any -------- ------- manner the amount of, or delay the timing of, distributions which are required to be made on any Investor Certificate of such Series without the consent of the Holder of such Certificate, (ii) change the definition of or the manner of calculating the Investor Amount, the Investor Percentage or the Investor Default Amount of such Series without the consent of each Investor Certificateholder affected thereby, or (iii) reduce the aforesaid percentage required to consent to any such amendment, without the consent of each Investor Certificateholder of all Series affected. The Rating Agency Condition shall be satisfied with respect to any such amendment, except that Moody's shall not be deemed to be a "Rating Agency" for this purpose. (c) Notwithstanding anything in this Section 13.1 to the contrary, the ------------ Supplement with respect to any Series may be amended on the terms and in accordance with the procedures provided in such Supplement. The Rating Agency Condition shall be satisfied with respect to any such amendment, except that Moody's shall not be deemed to be a "Rating Agency" for this purpose. (d) Notwithstanding anything in this Section 13.1 to the contrary, from ------------ and after the Series Termination Date for the Trust's Series 1996-A Certificates (or with the consent of the Holders of such Certificates), the Seller, the Servicer, the holder of the Seller Interest, and the Trustee may amend this Agreement or any Supplement in order to enable all or a portion of the Trust to qualify as a financial asset securitization investment trust (a "FASIT") for ----- Federal income tax purposes and to permit a FASIT election to be made with respect thereto and to make any such other modifications or amendments to this Agreement and any Supplement as may be permitted in making such election; provided, however that such amendment shall not be effective until the Seller - -------- ------- provides the Trustee with (i) an Opinion of Counsel to the effect that such amendment (A) would permit the Trust or a relevant portion thereof to be treated as a FASIT, (B) would not cause the Trust to be classified as an association (or publicly traded partnership) taxable as a corporation for Federal income tax purposes, and (C) would not cause or constitute an event in which gain 90 or loss would be recognized by any Investor Certificateholder, and (ii) an Officer's Certificate of the Seller that such amendment would not materially and adversely affect any Certificateholder or any Enhancement Provider. (e) Promptly after the execution of any such amendment or consent the Trustee shall furnish written notification of the substance of such amendment to each Investor Certificateholder of each Series affected thereby and to each Rating Agency providing a rating for such Series. (f) It shall not be necessary for the consent of Investor Certificateholders under this Section 13.1 to approve the particular form of any ------------ proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Investor Certificateholders shall be subject to such reasonable requirements as the Trustee may prescribe. Section 13.2 Protection of Right, Title and Interest to Trust. ------------------------------------------------ (a) The Servicer shall cause this Agreement, all amendments hereto and/or all financing statements and continuation statements and any other necessary documents covering the Certificateholders and the Trustee's right, title and interest to the Trust to be promptly recorded, registered and filed, and at all times to be kept recorded, registered and filed, all in such manner and in such places as may be required by law fully to preserve and protect the right, title and interest of the Trustee hereunder to all property comprising the Trust. The Servicer shall deliver to the Trustee file-stamped copies of, or filing receipts for, any document recorded, registered or filed as provided above, as soon as available following such recording, registration or filing. Seller shall cooperate fully with the Servicer in connection with the obligations set forth above and will execute any and all documents reasonably required to fulfill the intent of this Section 13.2(a). --------------- (b) Within 30 days after Seller makes any change in its name, identity or corporate structure which would make any financing statement or continuation statement filed in accordance with subsection (a) above seriously misleading -------------- within the meaning of Section 9-506(b) of the UCC as in effect in the state where such financing statement or continuation statement was filed, Seller shall give the Trustee notice of any such change and shall file such financing statements or amendments as may be necessary to continue the perfection of the Trust's security interest in the Receivables and the proceeds thereof. (c) Each of Seller and the Servicer will give the Trustee prompt written notice of any relocation of any office from which it services Receivables or keeps records concerning the Receivables or of its principal executive office and whether, 91 as a result of such relocation, the applicable provisions of the UCC would require the filing of any amendment of any previously filed financing or continuation statement or of any new financing statement and shall file such financing statements or amendments as may be necessary to continue the perfection of the Trust's security interest in the Receivables and the proceeds thereof. Each of Seller and the Servicer will at all times maintain each office from which it services Receivables and its principal executive office within the United States of America. (d) The Servicer will deliver to the Trustee: (i) upon the execution and delivery of each amendment of Articles I, II, III or IV other than ---------- -- --- -- amendments pursuant to subsection 13.1(a) an Opinion of Counsel substantially in ------------------ the form of Exhibit F; and (ii) on or before April 15 of each year, beginning --------- with April 15, 1994 an Opinion of Counsel, dated as of a date during the preceding 90-day period, substantially in the form of Exhibit G. --------- Section 13.3 Limitation on Rights of Certificateholders. ------------------------------------------ (a) The death or incapacity of any Certificateholder shall not operate to terminate this Agreement or the Trust, nor shall such death or incapacity entitle such Certificateholder's legal representatives or heirs to claim an accounting or to take any action or commence any proceeding in any court for a partition or winding up of the Trust, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them. (b) No Certificateholder shall have any right to vote (except with respect to the Investor Certificateholders as provided in Section 13.1) or in ------------ any manner otherwise control the operation and management of the Trust, or the obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of the Certificates, be construed so as to constitute the Certificateholders from time to time as partners or members of an association; nor shall any Certificateholder be under any liability to any third person by reason of any action taken by the parties to this Agreement pursuant to any provision hereof. (c) No Certificateholder shall have any right by virtue of any provisions of this Agreement to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Agreement, unless such Certificateholder previously shall have given to the Trustee, and unless the Holders of Certificates evidencing Undivided Interests aggregating more than 50% of the Investor Amount of any Series affected shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee, for 60 days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused 92 to institute any such action, suit or proceeding; it being understood and intended, and being expressly covenanted by each Certificateholder with every other Certificateholder and the Trustee, that no one or more Certificateholders shall have the right in any manner whatever by virtue or by availing itself or themselves of any provisions of this Agreement to affect, disturb or prejudice the rights of the Certificateholders of any other of the Certificates, or to obtain or seek to obtain priority over or preference to any other such Certificateholder, or to enforce any right under this Agreement, except in the manner herein provided and for the equal, ratable and common benefit of all Certificateholders. For the protection and enforcement of the provisions of this Section 13.3, each and every Certificateholder and the Trustee shall be entitled - ------------ to such relief as can be given either at law or in equity. Section 13.4 Governing Law. This Agreement shall be construed in ------------- accordance with the laws of the State of Illinois, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. Section 13.5 Notices. All demands, notices and communications ------- hereunder shall be in writing and shall be deemed to have been duly given if personally delivered at or mailed by registered mail, return receipt requested, to (a) in the case of Servicer, to First Consumers National Bank, P.O. Box 5280, Portland, Oregon 97208, Attn: President, with a copy to Spiegel, Inc., 3500 Lacey Road, Downers Grove, Illinois, 60515-5452, Attn: Treasurer, (b) in the case of Seller, to First Consumers Credit Corporation, 400 West 9/th/ Street, Suite 302D, Wilmington, Delaware, 19801, Attn: Treasurer, with a copy to Spiegel, Inc., 3500 Lacey Road, Downers Grove, Illinois, 60515-5452, Attn: Treasurer, (c) in the case of the Trustee, to the Corporate Trust Office, (d) in the case of the Enhancement Provider for a particular Series the address, if any, specified in the Supplement relating to such Series, (e) in the case of Moody's, to Moody's Investor Services, Inc., 99 Church Street, New York, New York 10007, Attn: ABS Monitoring Department, 4th Floor, and (f) in the case of Standard & Poor's, to Standard & Poor's Corporation, 25 Broadway, New York, New York 10004, Attention: Structured Finance Surveillance; or, as to each party, at such other address as shall be designated by such party in a written notice to each other party. Any notice required or permitted to be mailed to a Certificateholder shall be given by first class mail, postage prepaid, at the address of such Certificateholder as shown in the Certificate Register. Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not the Certificateholder receives such notice. Section 13.6 Severability of Provisions. If any one or more of the -------------------------- covenants, agreements, provisions or terms of this Agreement shall for any reason whatsoever be held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or 93 terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement or of the Certificates or rights of the Certificateholders thereof or any Enhancement Provider. Section 13.7 Assignment. Notwithstanding anything to the contrary ---------- contained herein, except as provided in Section 8.2, this Agreement may not be ----------- assigned by the Servicer without the prior consent of Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Investor Amount. Section 13.8 Certificates Nonassessable and Fully Paid. It is the ----------------------------------------- intention of the parties to this Agreement that the Certificateholders shall not be liable for obligations of the Trust, that the Undivided Interests represented by the Certificates shall be nonassessable for any losses or expenses of the Trust or for any reason whatsoever, and that Certificates upon authentication thereof by the Trustee pursuant to Sections 2.1 and 6.2 are and shall be deemed ------------ --- fully paid. Section 13.9 Further Assurances. Seller and the Servicer agree to do ------------------- and perform, from time to time, any and all acts and to execute any and all further instruments required or reasonably requested by the Trustee more fully to effect the purposes of this Agreement, including, without limitation, the execution of any financing statements or continuation statements relating to the Receivables for filing under the provisions of the UCC of any applicable jurisdiction. Section 13.10 No Waiver; Cumulative Remedies. No failure to exercise and ------------------------------ no delay in exercising, on the part of the Trustee or the Investor Certificateholders, any right, remedy, power or privilege hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exhaustive of any rights, remedies, powers and privileges provided by law. Section 13.11 Counterparts. This Agreement may be executed in two or ------------ more counterparts (and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one and the same instrument. Section 13.12 Third-Party Beneficiaries. This Agreement shall inure to ------------------------- the benefit of and be binding upon the parties hereto, the Certificateholders and, to the extent provided in any Supplement, to the Enhancement Provider named therein, and their respective successors and permitted assigns. Except as otherwise provided in this Article XIII, no other person will have any right or ------------ obligation hereunder. Section 13.13 Actions by Certificateholders. ----------------------------- (a) Wherever in this Agreement a provision is made that an action may be taken or a notice, demand or instruction given by Investor Certificateholders, such action, notice or instruction may be taken or given by any Investor Certificateholder, unless such provision requires a specific percentage of Investor Certificateholders. (b) Any request, demand, authorization, direction, notice, consent, waiver or other act by a Certificateholder shall bind such Certificateholder and every subsequent holder of such Certificate issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or omitted to be done by the Trustee, Seller or the Servicer in reliance thereon, whether or not notation of such action is made upon such Certificate. Section 13.14 Merger and Integration. Except as specifically stated ---------------------- otherwise herein, this Agreement sets forth the entire understanding of the parties relating to the subject matter hereof, and all prior understandings, written or oral, are superseded by this Agreement. This Agreement may not be modified, amended, waived or supplemented except as provided herein. Section 13.15 Headings. The headings herein are for purposes of -------- reference only and shall not otherwise affect the meaning or interpretation of any provision hereof. Section 13.16 Effect on Existing Pooling Agreement. This Agreement ------------------------------------ amends and restates the Existing Pooling Agreement effective as of the date of this Agreement. This Agreement shall not effect a novation of the obligations of the parties to the Existing Pooling Agreement, but instead shall be merely a restatement and, where applicable, an amendment of the terms governing such obligations. The parties hereto hereby affirm, ratify and confirm all transfers of Receivables and other related assets pursuant to the Existing Pooling Agreement. The parties hereto agree that the existing Exchangeable Seller Certificate shall be deemed to have been replaced with the Seller Interest as further described herein. Section 13.17 No Petition. Each of each Certificateholder, the Trustee, ----------- the Servicer and, with respect to the Trust, the Seller, severally and not jointly, hereby covenants and agrees that, prior to the date which is one (1) year and one (1) day after the payment in full of all Investor Certificates, it will not institute against, or join any other Person in instituting against, the Seller or the Trust 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. 95 Section 13.18 Limited Recourse. Notwithstanding anything to the ---------------- contrary in this Agreement or any other Transaction Document, with respect to provisions hereof in which the Seller has agreed that certain actions will be taken at the Seller's expense, payment of any such expense shall only be made to the extent the Seller has funds available for such purpose after amounts payable to Securityholders (as defined in the Receivables Purchase Agreement) have been paid in full. Each party hereto agrees that the failure to make such payment shall not give rise to any claim against the Seller. [Signatures Follow] 96 IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their respective officers as of the day and year first above written. FIRST CONSUMERS CREDIT CORPORATION By: /s/ John R. Steele ------------------ Name: John R. Steele Title: Treasurer FIRST CONSUMERS NATIONAL BANK By: /s/ John R. Steele ------------------ Name: John R. Steele Title: Treasurer THE BANK OF NEW YORK By: /s/ Greg Anderson ----------------- Name: Greg Anderson Title: Authorized Agent S-1 EXHIBIT A to Amended and Restated Pooling and Servicing Agreement FORM OF TRANSFER AGREEMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS ---------------------------------- ASSIGNMENT No. __ OF RECEIVABLES IN ADDITIONAL ACCOUNTS, dated as of ____________, ______ (this "Assignment"), by and between First Consumers Credit Corporation, a Delaware corporation ( the "Transferor") to The Bank of New York, a banking corporation organized and existing under the laws of New York, as trustee (the "Trustee") pursuant to the Amended and Servicing Pooling and Servicing Agreement referred to below. W I T N E S S E T H: WHEREAS, the Transferor and the Trustee are parties to the Amended and Restated Pooling and Servicing Agreement, dated as of September 30, 1992, amended and restated as of February 1, 1999, and amended and restated a second time as of December 31, 2001 (hereinafter as such agreement may have been, or may from time to time be, amended, supplemented or otherwise modified, the "Pooling and Servicing Agreement"); WHEREAS, pursuant to the Pooling and Servicing Agreement, the Transferor wishes to designate Additional Accounts of the Transferor to be included as Accounts and to convey the Receivables of such Additional Accounts, whether now existing or hereafter created, to the Trust as part of the corpus of the Trust (as each such term is defined in the Pooling and Servicing Agreement); and WHEREAS, the Trustee is willing to accept such designation and conveyance subject to the terms and conditions hereof; NOW THEREFORE, the Transferor and the Trustee hereby agree as follows: SECTION 1. Defined Terms. All terms defined in the Pooling and Servicing ------------- Agreement and used herein shall have such defined meanings when used herein, unless otherwise defined herein. "Addition Date" shall mean, with respect to the Additional Accounts designated hereby, __________, ________. A-1 "Notice Date" shall mean, with respect to the Additional Accounts designated hereby, _________, ____ (which shall be a date on or prior to the fifth Business Day prior to the Addition Date). SECTION 2. Designation of Additional Accounts. The Transferor shall deliver ---------------------------------- or cause to be delivered to the Trustee not later than five Business Days after the Addition Date, a computer file or microfiche list containing a true and complete list of each charge account which as of the Addition Date shall be deemed to be an Additional Account, such accounts being identified by account number and by the amount of Receivables and the amount of Principal Receivables in such accounts as of the close of business on the Addition Date. Such list shall be marked as Schedule 1 to this Assignment and, as of the Addition Date, shall be incorporated into and made a part of this Assignment. SECTION 3. Conveyance of Receivables. (a) The Transferor does hereby ------------------------- transfer, assign, set-over and otherwise convey to the Trust for the benefit of the Certificateholders, without recourse on and after the Addition Date, all right, title and interest of the Transferor in and to the Receivables now existing and hereafter created in the Additional Accounts designated hereby, all monies due or to become due with respect thereto (including all Finance Charge Receivables), all Collections, Recoveries and other proceeds of such Receivables and Insurance Proceeds relating thereto. (b) In connection with such transfer, unless a financing statement covering such Receivables has heretofore been filed, the Transferor agrees to record and file, at its own expense, a financing statement with respect to the Receivables now existing and hereafter created in the Additional Accounts designated hereby (which may be a single financing statement with respect to all such Receivables) for the transfer of accounts as defined in Section 9-106 of the UCC as in effect in the applicable jurisdiction meeting the requirements of applicable state law in such manner and such jurisdictions as are necessary to perfect the assignment of such Receivables to the Trust, and to deliver a file-stamped copy of such financing statement or other evidence of such filing (which may, for purposes of this Section 3, consist of telephone confirmation of such filing) to the Trustee on or prior to the date of this Assignment. (c) In connection with such transfer, the Transferor further agrees, at its own expense, on or prior to the date of this Assignment to indicate or cause to be indicated in its books and records and in the computer files of the Receivables that Receivables created in connection with the Additional Accounts designated hereby have been transferred to the Trust pursuant to this Assignment for the benefit of the Certificateholders. A-2 SECTION 4. Acceptance by Trustee. The Trustee hereby acknowledges its --------------------- acceptance on behalf of the Trust of all right, title and interest previously held by the Transferor in and to the Receivables now existing and hereafter created, and declares that it shall maintain such right, title and interest, upon the trust set forth herein and in the Pooling and Servicing Agreement, for the benefit of all Certificateholders. The Trustee further acknowledges that, prior to or contemporaneously with the execution and delivery of this Assignment, the Transferor delivered to the Trustee the computer file or microfiche list described in Section 2 of this Assignment. SECTION 5. Representations and Warranties of the Transferor. The Transferor ------------------------------------------------ hereby represents and warrants to the Trust as of the Addition Date: (a) Legal, Valid and Binding Obligation. This Assignment constitutes a ----------------------------------- legal, valid and binding obligation of the Transferor enforceable against the Transferor in accordance with its terms, except as such enforceability may be limited by applicable receivership or conservatorship, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting the enforcement of creditors' rights in general and the rights of creditors of national banking associations and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity); (b) Eligibility of Accounts. Each Additional Account designated hereby is ----------------------- an Eligible Account; (c) Selection Procedures. No selection procedures believed by the -------------------- Transferor to be materially adverse to the interests of the Investor Certificateholders were utilized in selecting the Additional Accounts designated hereby; (d) Insolvency. The Transferor is not insolvent and, after giving effect to ---------- the conveyance set forth in Section 3 of this Assignment, will not be insolvent; (e) Security Interest. This Assignment constitutes (i) a valid transfer and ----------------- assignment to the Trust of all right, title and interest of the Transferor in and to Receivables now existing and hereafter created in the Additional Accounts designated hereby, and all proceeds (as defined in the UCC as in effect in the applicable jurisdiction) of such Receivables and Insurance Proceeds relating thereto, and such Receivables and any Collections, Recoveries and other proceeds thereof and Insurance Proceeds relating thereto will be held by the Trust free and clear of any Lien of any Person except for (x) Liens permitted under Section 2.5 (b) of the Pooling and Servicing Agreement, (y) the interest of the Transferor as holder of the Seller Interest, and (z) the Transferor's right to receive interest accruing on, and investment earnings in respect of, the Finance Charge Account and the Principal Account as provided in the Pooling and Servicing Agreement; and/or (ii) it A-3 constitutes a grant of a security interest (as defined in the UCC as in effect in the applicable jurisdiction) in such property to the Trust, which is enforceable with respect to the existing Receivables in the Additional Accounts designated hereby, the Collections, Recoveries and other proceeds (as defined in the UCC as in effect in the applicable jurisdiction) thereof and Insurance Proceeds relating thereto upon the conveyance of such Receivables to the Trust, and which will be enforceable with respect to the Receivables thereafter created in respect of the Additional Accounts designated hereby, the Collections, Recoveries and other proceeds (as defined in the UCC as in effect in the applicable jurisdiction) thereof and Insurance Proceeds relating thereto upon the conveyance of such Receivables to the Trust, and which will be enforceable with respect to the Receivables thereafter created in respect of Additional Accounts designated hereby, the Collections, Recoveries and other proceeds (as defined in the UCC as in effect in the applicable jurisdiction) thereof and Insurance Proceeds relating thereto, upon such creation; and (iii) if this Assignment constitutes the grant of a security interest to the Trust in such property, upon the filing of a financing statement described in Section 3 of this Assignment with respect to the Additional Accounts designated hereby and in the case of the Receivables of such Additional Accounts thereafter created and the Collections, Recoveries and other proceeds (as defined in the UCC as in effect in the applicable jurisdiction) thereof, and Insurance Proceeds relating to such Receivables, upon such creation, the Trust shall have a first priority perfected security interest in such property, except for Liens permitted under subsection 2.5 (b) of the Pooling and Servicing Agreement, the interest of the Transferor as holder of the Seller Interest, and the Transferor's right to receive interest accruing on, and investment earnings in respect of, the Finance Charge Account and the Principal Account as provided in the Pooling and Servicing Agreement. (f) Notice has been given to each Rating Agency and to each Enhancement Provider as required under Section 2.6 (d) of the Pooling and Servicing Agreement. SECTION 6. Conditions Precedent. The acceptance of the Trustee set forth in -------------------- Section 4 above and the amendment of the Pooling and Servicing Agreement set forth in Section 7 below are subject to the satisfaction, on or prior to the Addition Date, of the following conditions precedent: (a) Officer's Certificate. The Transferor shall have delivered to the --------------------- Trustee a certificate of a Vice President or more senior officer, certifying that (i) all requirements set forth in Section 2.6 of the Pooling and Servicing Agreement for designating Additional Accounts and conveying the Principal Receivables of such Accounts, whether now existing or hereafter created, have been satisfied, and (ii) each of the representations and warranties made by the Transferor in Section 5 is true and correct as of the Addition Date. The Trustee may conclusively rely on A-4 such Officer's Certificate, shall have no duty to make inquiries with regard to the matters set forth therein, and shall incur no liability in so relying. (b) Opinion of Counsel. The Transferor shall have delivered to the Trustee ------------------ an Opinion of Counsel with respect to the Additional Accounts designated hereby substantially in the form of Exhibit B to the Pooling and Servicing Agreement. (c) Additional Information. The Transferor shall have delivered to the ---------------------- Trustee such information as was reasonably requested by the Trustee to satisfy itself as to the accuracy of the representation and warranty set forth in Section 5 (d) to this Assignment. SECTION 7. Amendment of the Pooling and Servicing Agreement. The Pooling ------------------------------------------------ and Servicing Agreement is hereby amended to provide that all references therein to the "Pooling and Servicing Agreement," to "this Agreement" and "herein" shall be deemed from and after the Addition Date to be a dual reference to the Pooling and Servicing Agreement as supplemented by this Assignment. Except as expressly amended hereby, all of the representations, warranties, terms, covenants and conditions of the Pooling and Servicing Agreement shall remain unamended and shall continue to be, and shall remain, in full force and effect in accordance with its terms and except as expressly provided herein shall not constitute or be deemed to constitute a waiver of compliance with or a consent to noncompliance with any term or provision of the Pooling and Servicing Agreement. SECTION 8. Counterparts. This Assignment may be executed in two or more ------------ counterparts (and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one and the same instrument. SECTION 9. No Petition. Each of the Trustee and, with respect to the Trust, ----------- the Transferor, severally and not jointly, hereby covenants and agrees that, prior to the date which is one (1) year and one (1) day after the payment in full of all Investor Certificates, it will not institute against, or join any other Person in instituting against, the Transferor or the Trust 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. A-5 IN WITNESS WHEREOF, the undersigned have caused this Assignment of Receivables in Additional Accounts to be duly executed and delivered by their respective duly authorized officers on the day and year first above written. FIRST CONSUMERS CREDIT CORPORATION By:____________________________________ Title:_________________________________ THE BANK OF NEW YORK, as Successor Trustee By:____________________________________ Title:_________________________________ A-6 SCHEDULE 1 to Assignment of Receivables in Additional Accounts ADDITIONAL ACCOUNTS ------------------- Delivered to Trustee only As contained on an appropriately labeled computer record delivered contemporaneously with the Execution and delivery of the Existing Pooling Agreement. A-7 EXHIBIT B to Amended and Restated Pooling and Servicing Agreement PROVISIONS TO BE INCLUDED IN OPINION OF COUNSEL TO BE DELIVERED PURSUANT TO SUBSECTION 2.6(c)(vii) OF THE AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT ---------------------------------------------------- The opinions set forth below may be subject to certain qualifications, assumptions, limitations and exceptions taken or made in the opinion of FCNB's counsel with respect to similar matters delivered on the Initial Closing Date. 1. The Transfer Agreement has been duly authorized, executed and delivered by the Seller and constitutes the legal, valid and binding agreement of Seller, enforceable against the Seller in accordance with its terms. 2. If the Transfer Agreement constitutes a valid transfer and assignment of the Receivables and all rights to security for such Receivables and the proceeds thereof (including without limitation rights to bank accounts or certificates of deposit pledged as collateral) in the Additional Accounts (the "Collateral"), Financing Statements having been filed in the offices of the ---------- Secretaries of State of the States of Delaware and Oregon, and in Washington, D.C., the Trustee has acquired (based upon certificates of Seller to the effect that (a) Seller acquired the Collateral pursuant to the Receivables Purchase Agreement, (b) Seller has not transferred any interest in the Collateral other than to the Trustee or caused any lien to be imposed upon the Receivables, and (c) Seller will acquire pursuant to the Receivables Purchase Agreement all Collateral subsequently created in the Additional Accounts) free and clear of any Lien or interest of any Person except for (x) Liens permitted under subsection 2.5(b) of the Pooling and Servicing Agreement, (y) the interest of the Holder of the Seller Interest, and (z) Seller's right to receive interest accruing on, and investment earnings in respect of, the Collection Subaccounts and the Collection Sub-subaccounts as provided in the Amended and Restated Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")) all right, title and interest of Seller in the Trust Assets free and clear of any Lien or interest of any Person, except for (x) Liens permitted under subsection 2.5(b) of the Pooling and Servicing Agreement, (y) the interest of the Holder of the Seller Interest, and (z) Seller's right to receive interest accruing on, and investment earnings in respect of, the Collection Subaccounts and the Collection Sub-subaccounts as provided in the Pooling and Servicing Agreement. 3. If the Transfer Agreement does not constitute a valid transfer and assignment of the Collateral, the Pooling and Servicing Agreement as amended by B-1 the Transfer Agreement creates a valid security interest in favor of the Trustee for the benefit of the Investor Certificateholders in such Collateral. The Financing Statements having been filed in the Offices of the Secretaries of State of the States of Delaware and Oregon, and in Washington, D.C., the Trust, for the benefit of the Investor Certificateholders has a first priority perfected security interest in the Collateral now existing and hereafter created. Such perfection and priority of the Trustee for the benefit of the Investor Certificateholders in such Receivables, and the proceeds thereof, would not be affected by an increase or decrease in the relative interests in the Receivables of the Holder of the Seller Interest and of the Investor Certificateholders. Such perfection and priority would be enforceable against Seller notwithstanding the insolvency of Seller, except that such counsel need express no opinion as to the effect of Section 9-315 of the UCC as in effect in the applicable jurisdiction with respect to Proceeds held by Seller upon its insolvency. 4. No filings or other action, other than the filing of the financing statement(s) referred to in such opinion (the "Financing Statements") with respect to the Trust's security interest in such Collateral and the proceeds thereof, in the Offices of the Secretaries of State of the States of Delaware and Oregon, and in Washington, D.C., are necessary to perfect or continue the perfected status of the security or other interest of the Trust in the Collateral designated by the Transfer Agreement, and the proceeds thereof, against third parties, except that appropriate continuation statements with respect to the Financing Statements be filed at five-year intervals to continue the perfection of such security interest. 5. In the course of such counsel's representation of Seller in connection with this matter, and without independent investigation, such counsel has not become aware of (a) any type of right, lien or interest of any government or agency or instrumentality thereof or any lien arising by operation of law which might be asserted against the Collateral designated by the Transfer Agreement or the proceeds thereof in particular circumstances other than a tax lien or a lien arising under ERISA, (b) any such right, lien or interest which has been so asserted, or (c) any lien arising by operation of law or any attachment or execution lien which has been asserted against the Collateral designated by the Transfer Agreement or the proceeds thereof. 6. The transfer of the Collateral to the Trust would not constitute a fraudulent conveyance of Seller; provided, that this opinion numbered 6 need not be delivered if the short-term unsecured debt obligations of FCNB are rated at the time of such transfer at least P-3 by Moody's. 7. Based on certificates of Seller to the effect of the following, to the best of the knowledge of counsel, (a) Seller acquired the Collateral pursuant to the Receivables Purchase Agreement, (b) Seller has not transferred any interest in the B-2 Collateral other than to the Trustee or caused any lien to be imposed upon the Collateral, and (c) Seller will acquire pursuant to the Receivables Purchase Agreement all Collateral subsequently created in the Additional Accounts free and clear of any Lien or interest of any Person except for (x) Liens permitted under subsection 2.5(b) of the Pooling and Servicing Agreement, (y) the interest of the Holder of the Seller Interest, and (z) Seller's right to receive interest accruing on, and investment earnings in respect of, the Collection Subaccounts and the Collection Sub-subaccounts as provided in the Pooling and Servicing Agreement. B-3 EXHIBIT C to Amended and Restated Pooling and Servicing Agreement FORM OF RETRANSFER AGREEMENT ---------------------------- TRANSFER No. ___ OF RECEIVABLES (this "Retransfer Agreement"), dated as of ________________, _____, by and between FIRST CONSUMERS CREDIT CORPORATION, a Delaware corporation (the "Transferor"), and THE BANK OF NEW YORK, a banking corporation organized and existing under the laws of New York (the "Trustee"), pursuant to the Amended and Restated Pooling and Servicing Agreement referred to below. W I T N E S S E T H: WHEREAS, the Transferor and the Trustee are parties to the Amended and Restated Pooling and Servicing Agreement, dated as of September 30, 1992, amended and restated as of February 1, 1999, and amended and restated a second time as of December 31, 2001 (hereinafter as such agreement may have been, or may from time to time be, amended, supplemented or otherwise modified, the "Pooling and Servicing Agreement"); WHEREAS, pursuant to the Pooling and Servicing Agreement, the Transferor wishes to remove all Receivables from certain designated Accounts of the Transferor (the "Removed Accounts") and to cause the Trustee to reconvey the Receivables of such Removed Accounts, whether now existing or hereafter created, from the Trust to the Transferor (as each such term is defined in the Pooling and Servicing Agreement); and WHEREAS, the Trustee is willing to accept such designation and to reconvey the Receivables in the Removed Accounts subject to the terms and conditions hereof; NOW THEREFORE, the Transferor and the Trustee hereby agree as follows: 1. Defined Terms. All terms defined in the Pooling and Servicing ------------- Agreement and used herein shall have such defined meanings when used herein, unless otherwise defined herein. "Removal Date" shall mean, with respect to the Removed Accounts ------------ designated hereby, _________________, _____. C-1 "Removal Notice Date" shall mean, with respect to the Removed Accounts ------------------- designated hereby, _____________________ (which shall be a date on or prior to the fifth Business Day prior to the Removal Date). 2. Designation of Removed Accounts. The Transferor shall deliver to ------------------------------- the Trustee, not later than three Business Days after the Removal Date, a computer file or microfiche list containing a true and complete list of each credit card account which as of the Removal Date shall be deemed to be a Removed Account, such accounts being identified by account number and by the amount of Principal Receivables in such accounts as of the close of business on the Removal Notice Date. Such list shall be marked as Schedule 1 to this Retransfer Agreement and shall be incorporated into and made a part of this Retransfer Agreement as of the Removal Date. 3. Conveyance of Receivables. (a) The Trustee does hereby transfer, ------------------------- assign, set-over and otherwise convey to the Transferor, without recourse on and after the Removal Date, all right, title and interest of the Trust in and to the Receivables now existing and hereafter created in the Removed Accounts designated hereby, all monies due or to become due with respect thereto (including all Finance Charge Receivables), all Collections, Recoveries and other proceeds (as defined in Section 9-306 of the UCC as in effect in the applicable jurisdiction) of such Receivables and Insurance Proceeds relating thereto. (b) In connection with such transfer, the Trustee agrees to execute and deliver to the Transferor on or prior to the date of this Retransfer Agreement, a termination statement with respect to the Receivables now existing and hereafter created in the Removed Accounts designated hereby (which may be a single termination statement with respect to all such Receivables) evidencing the release by the Trust of its lien on the Receivables in the Removed Accounts, and meeting the requirements of applicable state law, in such manner and such jurisdictions as are necessary to remove such lien. 4. Acceptance by Trustee. The Trustee hereby acknowledges that, prior --------------------- to or contemporaneously with the execution and delivery of this Retransfer Agreement, the Transferor delivered to the Trustee the computer file or microfiche list described in Section 2 of this Retransfer Agreement. 5. Representations and Warranties of the Transferor. The Transferor ------------------------------------------------ hereby represents and warrants to the Trust as of the Removal Date: (a) Legal Valid and Binding Obligation. This Retransfer Agreement ---------------------------------- constitutes a legal, valid and binding obligation of the Transferor enforceable against the Transferor in accordance with its terms, except as such enforceability may be C-2 limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting the enforcement or creditors' rights in general and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity); and (b) Selection Procedures. No selection procedures believed by the -------------------- Transferor to be materially adverse to the interests of the Investor Certificateholders were utilized in selecting the Removed Accounts designated hereby. 6. Condition Precedent. The amendment of the Pooling and Servicing ------------------- Agreement set forth in Section 7 hereof is subject to the satisfaction, on or prior to the Removal Date, of the following condition precedent: Officers' Certificate. The Transferor shall have delivered to the --------------------- Trustee an Officers' Certificate certifying that (i) as of the Removal Date, all requirements set forth in Section 2.7 of the Pooling and Servicing Agreement for designating Removed Accounts and reconveying the Receivables of such Removed Accounts, whether now existing of hereafter created, have been satisfied, and (ii) each of the representations and warranties made by the Transferor in Section 5 hereof is true and correct as of the Removal Date. The Trustee may conclusively rely on such Officer's Certificate, shall have no duty to make inquiries with regard to the matters set forth therein and shall incur no liability in so relying. 7. Amendment of the Pooling and Servicing Agreement. The Pooling and ------------------------------------------------ Servicing Agreement is hereby amended to provide that all references therein to the "Pooling and Servicing Agreement", to "this Agreement" and "herein" shall be deemed from and after the Removal Date to be a dual reference to the Pooling and Servicing Agreement as supplemented by this Retransfer Agreement. Except as expressly amended hereby, all of the representations, warranties, terms, covenants and conditions of the Pooling and Servicing Agreement shall remain unamended and shall continue to be, and shall remain, in full force and effect in accordance with its terms and except as expressly provided herein shall not constitute or be deemed to constitute a waiver of compliance with or a consent to non-compliance with any term or provision of the Pooling and Servicing Agreement. 8. Counterparts. This Retransfer Agreement may be executed in two or ------------ more counterparts (and by different parties on separate counterparts), each of which shall be an original, but all of which together shall constitute one and the same instrument. 9. No Petition. Each of the Trustee and, with respect to the Trust, ----------- the Transferor, severally and not jointly, hereby covenants and agrees that, prior to the date which is one (1) year and one (1) day after the payment in full of all Investor C-3 Certificates, it will not institute against, or join any other Person in instituting against, the Transferor or the Trust 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. IN WITNESS WHEREOF, the undersigned have caused this Retransfer Agreement to be duly executed and delivered by their respective duly authorized officers on the day and year first above written. FIRST CONSUMERS CREDIT CORPORATION By:_________________________________ Title:______________________________ THE BANK OF NEW YORK, as Successor Trustee By:_________________________________ Title:______________________________ C-4 SCHEDULE 1 to Retransfer Agreement REMOVED ACCOUNTS ---------------- Delivered to Trustee only As contained on an appropriately labeled computer record delivered contemporaneously with the Execution and delivery of the Existing Pooling Agreement. C-5 EXHIBIT D to Amended and Restated Pooling and Servicing Agreement FORM OF MONTHLY SERVICER'S CERTIFICATE -------------------------------------- FIRST CONSUMERS MASTER TRUST The undersigned, a duly authorized representative of First Consumers National Bank ("FCNB"), as Servicer pursuant to the Pooling and Servicing Agreement dated as of September 30, 1992, amended and restated as of February 1, 1999, and amended and restated a second time as of December 31, 2001, (the "Pooling and Servicing Agreement") among First Consumers Credit Corporation, FCNB and The Bank of New York, as Successor Trustee, does hereby certify as follows: 1. Capitalized terms used in this Certificate have their respective meanings set forth in the Pooling and Servicing Agreement; provided that the "preceding Monthly Period" shall mean the Monthly Period immediately preceding the calendar month in which this Certificate is delivered. This Certificate is delivered pursuant to Section 3.4(c) of the Pooling and Servicing Agreement. References herein to certain sections and subsections are references to the respective sections and subsections of the Pooling and Servicing Agreement. 2. FCNB is Servicer under the Pooling and Servicing Agreement. 3. The undersigned is a Servicing Officer. 4. The date of this Certificate is a Determination Date under the Pooling and Servicing Agreement. 5. The aggregate amount of Collections processed during the preceding Monthly Period was equal to ....................................... $___________ 6. The aggregate amount of the Investor Percentage of Collections of Principal Receivables processed by the Servicer pursuant to Article IV during the preceding Monthly Period was equal to ......................... $___________ 7. The aggregate amount of the Investor Percentage of Collections of Finance Charge Receivables processed by the Servicer pursuant to Article IV during the preceding Monthly Period was equal to .................. $___________ D-1 8. The aggregate amount of Receivables as of the end of the last day of the preceding Monthly Period was equal to ......................... $___________ 9. The aggregate amount of funds on deposit in the Finance Charge Account with respect to Collections processed as of the end of the last day of the preceding Monthly Period was equal to ............................. $___________ 10. The aggregate amount of funds on deposit in the Principal Account with respect to Collections processed as of the end of the last day of the preceding Monthly Period was equal to ....................................... $___________ 11. The Available Cash Collateral Amount in connection with the Series _______ Certificates as of the next succeeding Transfer Date is equal to .......................................................... $___________ 12. The aggregate amount of withdrawals required to be made from the Cash Collateral Account pursuant to Article IV in connection with the Series _______ Certificates in the current calendar month is equal to ............ $___________ 13. The aggregate amount to be paid to the Cash Collateral Depositor in connection with the Series _______ Certificates from the Series _______ Finance Charge Account pursuant to Article IV in the current calendar month is equal to .......................................................... $___________ 14. The sum of all amounts payable to the Investor Certificateholders on the Distribution Date in the current calendar month is equal to ... $___________ 15. Attached hereto is a true and correct copy of the statement required to be delivered by the Servicer on the date of this Certificate to the Paying Agent pursuant to the Series _______ Supplement. 16. To the knowledge of the undersigned, there are no liens on any Receivables in the Trust except as described below: [If applicable, insert "None".] IN WITNESS WHEREOF, the undersigned has duly executed and delivered this certificate this ____ day of _______________, _____. FIRST CONSUMERS NATIONAL BANK, as Servicer By:_________________________________ Title:______________________________ D-2 EXHIBIT E to Amended and Restated Pooling and Servicing Agreement FORM OF ANNUAL SERVICER'S CERTIFICATE ------------------------------------- FIRST CONSUMERS MASTER TRUST The undersigned, a duly authorized representative of First Consumers National Bank ("FCNB") as Servicer pursuant to the Pooling and Servicing Agreement dated as of September 30, 1992, amended and restated as of February 1, 1999, and as amended and restated a second time as of December 31, 2001 (the Pooling and Servicing Agreement) among First Consumers Credit Corporation, FCNB and The Bank of New York, as successor trustee (the "Trustee"), does hereby certify that: 1. FCNB is Servicer under the Pooling and Servicing Agreement. 2. The undersigned is duly authorized pursuant to the Pooling and Servicing Agreement to execute and deliver this Certificate to the Trustee 3. This Certificate is delivered pursuant to Section 3.5 of the Pooling and Servicing Agreement. 4. A review of the activities of the Servicer during the calendar year ended December 31, _____ was conducted under my supervision. 5. Based on such review, the Servicer has, to the best of my knowledge, fully performed all its obligations under the Pooling and Servicing Agreement throughout such calendar year and no default in the performance of such obligations has occurred or is continuing except as set forth in paragraph 6 below. 6. The following is a description of each default in the performance of the Servicer's obligations under the provisions of the Pooling and Servicing Agreement known to me to have been made during the calendar year ended December 31, _____, which sets forth in detail the (i) nature of each such default, (ii) the action taken by the Servicer, if any, to remedy each such default and (iii) the current status of each such default: [If applicable, insert "None"] IN WITNESS WHEREOF, the undersigned has duly executed this Certificate this day of ______, _____. By:_________________________________ Name:______________________ Title:_____________________ E-1 EXHIBIT F to Amended and Restated Pooling and Servicing Agreement PROVISIONS TO BE INCLUDED IN OPINION OF COUNSEL PURSUANT TO SUBSECTION 13.2(d)(i) ----------------------------------------- (i) The amendment to the Amended and Restated Pooling and Servicing Agreement, attached hereto as Exhibit A (the "Amendment"), has been duly authorized, executed and delivered by Seller and FCNB and constitutes the legal, valid and binding agreement of Seller and FCNB, enforceable in accordance with its terms. (ii) The Amendment has been entered into in accordance with the terms and provisions of Section 13.1 of the Pooling and Servicing Agreement. F-1 EXHIBIT G to Amended and Restated Pooling and Servicing Agreement PROVISIONS TO BE INCLUDED IN ANNUAL OPINION OF COUNSEL ---------------------------- The opinions set forth below, which are to be delivered pursuant to subsection 13.2(d) of the Amended and Restated Pooling and Servicing Agreement ("Pooling and Servicing Agreement"), may be subject to certain qualifications, assumptions, limitations, and exceptions taken or made in the opinion of counsel to FCNB with respect to similar matters delivered on the Initial Closing Date. 1. If the Pooling and Servicing Agreement constitutes a valid transfer and assignment of the Trust Assets, the Financing Statements having been filed in the offices of the Secretaries of State of the States of Delaware and Oregon, and in Washington, D.C., the Trustee has acquired (based upon certificates of Seller to the effect that (a) Seller acquired the Receivables and all rights to security for such Receivables and the proceeds thereof (including without limitation rights to bank accounts or certificates of deposit pledged as collateral) (the "Collateral") pursuant to the Receivables Purchase Agreement, ---------- (b) Seller has not transferred any interest in the Collateral other than to the Trustee or caused any lien to be imposed upon the Collateral, and (c) Seller will acquire pursuant to the Receivables Purchase Agreement all Collateral subsequently created in the Additional Accounts free and clear of any Lien or interest of any Person except for (x) Liens permitted under subsection 2.5(b) of the Pooling and Servicing Agreement, (y) the interest of the Holder of the Seller Interest, and (z) Seller's right to receive interest accruing on, and investment earnings in respect of, the Collection Subaccounts and the Collection Sub-subaccounts as provided in the Pooling and Servicing Agreement) all right, title and interest of Seller in the Trust Assets free and clear of any Lien or interest of any Person, except for (x) Liens permitted under subsection 2.5(b) of the Pooling and Servicing Agreement, (y) the interest of the Holder of the Seller Interest, and (z) Seller's right to receive interest accruing on, and investment earnings in respect of, the Collection Subaccounts and the Collection Sub-subaccounts as provided in the Pooling and Servicing Agreement. 2. If the Pooling and Servicing Agreement does not constitute a valid transfer and assignment of all right, title, and interest in the Trust Assets, the Pooling and Servicing Agreement creates a valid security interest in favor of the Trustee for the benefit of the Investor Certificateholders in the Trust Assets. The Financing Statements having been filed in the offices of the Secretaries of State of the States of Delaware and Oregon, and in Washington, D.C., the Trust, for the benefit of the G-1 Investor Certificateholders has a first priority perfected security interest in that portion of the Trust Assets that consists of the Collateral now existing and hereafter created (other than Collateral in Additional Accounts), and all monies due or to become due with respect thereto, including the proceeds thereof. Such perfection and priority of the Trustee for the benefit of the Investor Certificateholders in such Collateral, and the proceeds thereof, would not be affected by an increase or decrease in the relative interests in the Collateral of the Holder of the Seller Interest and of the Investor Certificateholders. Such perfection and priority would be enforceable against Seller notwithstanding the insolvency of Seller except that such counsel need express no opinion as to the effect of Section 9-315 of the UCC as in effect in the applicable jurisdiction with respect to proceeds held by Seller upon its insolvency. 3. No filings or other action, other than the filing of the financing statement(s) referred to in such opinion (the "Financing Statements") with respect to the Trust's interest in the Collateral and the proceeds thereof in the Offices of the Secretaries of State of the States of Delaware and Oregon, and in Washington, D.C., are necessary to perfect or continue the perfected status of the interest of the Trust in the Collateral and the proceeds thereof against third parties, except that appropriate continuation statements with respect to the Financing Statement(s) must be filed at five-year intervals. 4. In the course of such counsel's representation of Seller in connection with this matter, and without independent investigation, such counsel has not become aware of (a) any type of right, lien, or interest of any government or agency or instrumentality thereof or any lien arising by operation of law which might be asserted against the Collateral or the proceeds arising under ERISA, (b) any such right, lien or interest which has been so asserted or (c) any lien arising by operation of law or any attachment or execution lien which had been asserted against the Collateral or the proceeds thereof. G-2 SCHEDULE 1 to Amended and Restated Pooling and Servicing Agreement LIST OF ACCOUNTS ---------------- Delivered to Trustee only As contained on an appropriately labeled computer record delivered contemporaneously with the Execution and delivery of the Existing Pooling Agreement. Aggregate Receivables as of the Cut Off Date: $ 152,900,177 Aggregate Principal Receivables as of the Cut Off Date: $ 150,759,365 G-3 SCHEDULE 2 to Amended and Restated Pooling and Servicing Agreement PERFECTION REPRESENTATIONS AND WARRANTIES ----------------------------------------- In addition to the representations, warranties and covenants contained in the Pooling and Servicing Agreement, Seller hereby represents, warrants and covenants to the Trust as follows: (1) The Pooling and Servicing Agreement creates either (A) a valid transfer to the Trust of all right, title and interest of Seller in, to and under (i) the Receivables conveyed to the Seller pursuant to the Receivables Purchase Agreement and (ii) all rights to security for such Receivables (including without limitation rights to bank accounts or certificates of deposit pledged as collateral) (the "Obligor Collateral" and, together with the ------------------ Receivables, the "Collateral") , and the Collateral will be held by the Trust ---------- free and clear of any Lien, except for (w) the interests of the Trustee, the Certificateholders and the Enhancement Providers, (x) Liens permitted pursuant to paragraph 3 below, or (y) the interests of the Seller as holder of the Seller Interest or (B) a valid and continuing security interest (as defined in the applicable UCC) in the Collateral in favor of the Trust, which security interest is prior to all other Liens, and is enforceable as such against creditors of and purchasers from the Seller (other than Liens permitted pursuant to paragraph 3 below). (2) The Receivables constitute "accounts" within the meaning of the applicable UCC. The Obligor Collateral constitutes security interests on personal property securing certain of those accounts, and the creation and perfection of a security interest in such security interests is governed by Sections 9-203(g) and 9-308(e), respectively, of the applicable UCC. (3) Immediately prior to the conveyance of, or the grant of the security interest in, the Collateral pursuant to the Pooling and Servicing Agreement, Seller owns and has good and marketable title to the Collateral, and a valid, perfected security interest in the collateral for the Receivables in any secured Accounts, in each case, free and clear of any Lien, claim or encumbrance of any Person; provided that nothing in this paragraph 3 shall prevent or be deemed to prohibit Seller from suffering to exist upon any of the Collateral any Liens for any taxes if such taxes shall not at the time be due and payable or if FCNB or Seller, as applicable, shall currently be contesting the validity thereof in good faith by appropriate proceedings and shall have set aside on its books adequate reserves with respect thereto. G-4 (4) Seller has caused, or will have caused within 10 days, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Collateral granted to the Trust under the Pooling and Servicing Agreement. (5) Other than the security interest granted to the Trust pursuant to the Pooling and Servicing Agreement, Seller has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Collateral. Seller has not authorized the filing of and is not aware of any financing statements against Seller that include a description of collateral covering the Collateral. (6) Seller is not aware of any judgment, ERISA or tax lien filings against Seller. (7) Notwithstanding any other provision of the Pooling and Servicing Agreement, the representations and warranties set forth in this Schedule 2 shall ---------- be continuing, and remain in full force and effect, until such time as all Certificates have been finally and fully paid and shall survive the transfer of the Trust Assets to the Trust under the Pooling and Servicing Agreement and the termination of the rights and obligations of the Servicer pursuant to Article X --------- thereof. The parties to the Pooling and Servicing Agreement shall not, without satisfying the Rating Agency Condition, waive a breach of any representation or warranty set forth in this Schedule 2. In order to evidence the interests of ---------- Seller and the Trust under the Pooling and Servicing Agreement, Seller and Servicer shall take such action, or execute and deliver such instruments (other than filing financing statements) as may be necessary or advisable (including, without limitation, such actions as are requested by Indenture Trustee) to maintain and perfect, as a first priority interest, Seller's or the Trust's security interest in the Collateral. The Servicer shall, from time to time and within the time limits established by law, prepare and present to the Trustee for the Trustee's authorization and approval all financing statements, amendments, continuations or initial financing statements in lieu of a continuation statement, or other filings necessary to continue, maintain and perfect as a first-priority interest. The Trustee's approval of such filings shall authorize the Servicer to file such financing statements under the UCC without the signature of Seller or Trustee where allowed by applicable law. Notwithstanding anything else in the Pooling and Servicing Agreement to the contrary, the Servicer shall not have any authority to file a termination, partial termination, release, partial release, or any amendment that deletes the name of a debtor or excludes collateral of any such financing statements, without the prior written consent of the Trustee. The Trustee may require, prior to authorizing or filing any such termination, partial termination, release, partial release or amendment, that Servicer provide an Opinion of Counsel that such filings are authorized under the Pooling and Servicing Agreement. G-5 EX-4.7 9 dex47.txt ASSIGNMENT AND ASSUMPTION AGREEMENT 12/31/01 Exhibit 4.7 ----------- ASSIGNMENT AND ASSUMPTION AGREEMENT Reference is made to the Trust Agreement dated as of March 1, 2001, as it may be amended or otherwise modified from time to time (as so amended or modified, the "Trust Agreement"), between First Consumers National Bank, a --------------- national banking association, as Seller ("FCNB"), and Bankers Trust Company, a ---- New York banking corporation, as Owner Trustee. Capitalized terms used herein are defined in the Trust Agreement. FCNB (the "Assignor") and First Consumers Credit Corporation, a -------- Delaware corporation, (the "Assignee") agree as follows: -------- 1. The Assignor hereby assigns to the Assignee, and the Assignee hereby assumes from the Assignor, all of the Assignor's rights and obligations under the Trust Agreement arising after the Effective Date as defined below. 2. The effective date (the "Effective Date") for this Agreement shall be December 31, 2001. 3. As of the Effective Date, (i) the Assignee shall be a party to the Trust Agreement and have the rights and obligations of the Seller thereunder and (ii) the Assignor shall relinquish its rights and be released from its obligations under the Trust Agreement. 4. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS (WITHOUT REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF). 5. This Agreement contains the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire Agreement among the parties hereto with respect to the subject matter hereof superseding all prior oral or written understandings. 6. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall for any reason whatsoever be held invalid, then such covenants, agreements, provisions, or terms shall be deemed severable from the remaining covenants, agreements, provisions, or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement. 7. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. Delivery by facsimile of an executed signature page of this Agreement shall be effective as delivery of an executed counterpart hereof. 8. This Agreement shall be binding on the parties hereto and their respective successors and assigns. 9. The parties to this Agreement hereby covenant and agree that they will not at any time institute against First Consumers Credit Corporation, or join in instituting against First Consumers Credit Corporation, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States federal or state bankruptcy or similar law. IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption Agreement to be executed by their respective officers thereunto duly authorized as of the Effective Date. ASSIGNOR: FIRST CONSUMERS NATIONAL BANK By: /s/ John R. Steele -------------------- Name: John R. Steele Title: Treasurer ASSIGNEE: FIRST CONSUMERS CREDIT CORPORATION By: /s/ John R. Steele --------------------- Name: John R. Steele Title: Treasurer Acknowledged and Accepted by: BANKERS TRUST COMPANY By: /s/ Eileen M. Hughes ---------------------- Name: Eileen M. Hughes Title: Vice President EX-4.8 10 dex48.txt SELLER SUBSTITUTION AGREEMENT 12/31/01 Exhibit 4.8 ----------- This SELLER SUBSTITUTION AMENDMENT AGREEMENT, dated as of December 31, 2001 (this "Agreement"), is made among (i) First Consumers National Bank, a --------- national banking association ("FCNB"), as a Seller and as Servicer, (ii) First ---- Consumers Credit Corporation, a Delaware corporation ("SPE"), (iii) Spiegel --- Credit Corporation III ("SCCIII"), a Delaware corporation, as a Seller, (iv) ------ Spiegel, Inc., a Delaware corporation ("Spiegel") and (v) JPMorgan Chase Bank, as Administrative Agent. Background A. The FCCCMNT Trust and the SCCMNT Trust have issued the Class A Notes pursuant to (i) the FCCCMNT Indenture, (ii) the FCCCMNT Indenture Supplement, (iii) the SCCMNT Indenture, and (iv) the SCCMNT Indenture Supplement. B. FCNB, SCCIII, Spiegel, the Administrative Agent and the Conduit Purchasers, Bank Purchasers and Conduit Managing Agents named therein are party to a Note Purchase Agreement, dated as of October 17, 2001 (the "Note Purchase ------------- Agreement"), relating to the purchase of the Class A Notes. --------- C. FCNB wishes to substitute SPE for FCNB as the Seller with respect to the FCMT Trust and the FCCCMNT Trust. D. Subject to the terms and conditions set forth herein, SCCIII, Spiegel, the Conduit Purchasers, Bank Purchasers and the Conduit Managing Agents are willing to consent to such substitution. Agreement 1. Substitution. Subject to the satisfaction of the conditions precedent ------------ specified in Section 9.9 of the Note Purchase Agreement, SPE is hereby substituted for FCNB as a party to the Note Purchase Agreement in the capacity of "Seller," and any and all provisions of the Note Purchase Agreement that refer to or assume FCNB's status as a national banking association are hereby amended, insofar as they relate to FCNB as a Seller, to reflect the fact that SPE, the new Seller, is instead a corporation formed under the laws of the State of Delaware. FCNB hereby assigns all of its rights and obligations in its capacity as "Seller" under or in connection with the Note Purchase Agreement to SPE and SPE hereby assumes and agrees to perform all obligations of FCNB in its capacity as "Seller" under or in connection with the Note Purchase Agreement. To the extent that they have the power and authority to do so, without the consent of the other parties to the Note Purchase Agreement, the parties to this Agreement hereby amend and restate the final sentence of Section 15.7 of the Note Purchase Agreement to read in its entirety as follows: "Each Spiegel Party (other than each Seller as to itself) and each Financing Party agrees that so long as any Investor Notes issued under the FCCCMNT Trust or the SCCMNT Trust or any Investor Certificates issued under the FCMT Trust shall be outstanding or there shall not have elapsed one year plus one day since the last day on which such Investor Notes or Investor Certificates shall have been outstanding, it shall not file, or join in the filing of, a petition against SCC III (in the case of the SCCMNT Trust) or the other Seller (in the case of the FCCCMNT Trust or the FCMT Trust) under the Bankruptcy Code, or join in the commencement of any bankruptcy, reorganization, arrangement, insolvency, liquidation or other similar proceeding against SCC III (in the case of the SCCMNT Trust) or the other Seller (in the case of the FCCCMNT Trust or the FCMT Trust).". Each of the parties hereto further agrees not to execute any future amendment, extension or other modification of the Note Purchase Agreement unless that amendment, extension or other modification (or a prior amendment, extension or modification executed by all of the parties to the Note Purchase Agreement) contains a ratification of the foregoing amendment. 2. Non-Petition. The parties to this Agreement hereby covenant and agree that ------------ they will not at any time institute against SPE, or join in instituting against SPE, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceeding under any United States federal or state bankruptcy or similar law. 3. Miscellaneous. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ------------- ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING JURISDICTION TO REVIEW THE JUDGMENTS THEREOF. EACH OF THE PARTIES HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. [Signature page follows] IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written. SPIEGEL CREDIT CORPORATION III, as Seller By: /s/ John R. Steele ------------------ John R. Steele Treasurer FIRST CONSUMERS NATIONAL BANK, as a Seller and as Servicer By: /s/ John R. Steele ------------------ John R. Steele Treasurer SPIEGEL, INC. By: /s/ John R. Steele ------------------ John R. Steele Treasurer JPMORGAN CHASE BANK, as Administrative Agent By: /s/ Dennis Knitowski -------------------- Dennis Knitowski Vice President FIRST CONSUMERS CREDIT CORPORATION By: /s/ John R. Steele ------------------ John R. Steele Treasurer EX-4.9 11 dex49.txt AMENDED AND RESTATED NOTE PURCHASE AGREEMENT Exhibit 4.9 EXECUTION COPY ================================================================================ AMENDED AND RESTATED CLASS C NOTE PURCHASE AGREEMENT Dated as of December 31, 2001 among FIRST CONSUMERS CREDIT CORPORATION, Seller, FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST, Issuer, FIRST CONSUMERS NATIONAL BANK, 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 ____________________ ================================================================================ Table of Contents ----------------- Page ---- Table of Contents ----------------- Page ---- i AMENDED AND RESTATED CLASS C NOTE PURCHASE AGREEMENT, dated as of December 31, 2001, by and among FIRST CONSUMERS CREDIT CORPORATION, a Delaware corporation, as Seller (as defined in the Indenture referred to below), 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 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, FCNB, as seller and servicer, the Class C Purchasers, and DBNY, as administrative agent, entered into a Class C Note Purchase Agreement, dated as of March 1, 2001 (the "Existing Purchase ----------------- Agreement"); - --------- 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 amended and restated as of the date hereof (as the same may from time to time be further 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 amended and restated as of the date hereof (as the same may from time to time be amended or otherwise modified, the "Master Indenture"); ---------------- WHEREAS, the Issuer issued 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 amended and restated as of the date hereof (as the same may from time to time be further amended or otherwise modified, the "Supplemental Indenture" ---------------------- and the Master Indenture, as supplemented by the Supplemental Indenture, the "Indenture"); --------- WHEREAS, the Issuer also issued 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 established 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 purchased 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 in the Existing Agreement; and WHEREAS, the parties hereto wish to amend and restate the Existing Purchase Agreement as set forth 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 that the Existing Purchase Agreement is hereby amended and restated 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: ------------------ -2- (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); (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. -3- "Class B Notes" has the meaning specified in the recitals to this ------------- Agreement. "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. "Indenture Trustee" has the meaning specified in the recitals to this ----------------- Agreement. -5- "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 Seller, 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. "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 - ---- -6- 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. "Receivables Purchase Agreement" shall mean the Receivables Purchase ------------------------------ Agreement, dated as of the date hereof, between First Consumers Credit Corporation, as Buyer, and FCNB, as RPA Seller. "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 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): -7- (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 Receivables Purchase Agreement, 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. "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. -8- "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 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. -9- "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 purchased 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 was made on the Closing Date. (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. -10- 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 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. -11- (d) The Servicer 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 Servicer 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 Servicer 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) 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. -12- 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 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 -13- 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 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 -14- 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. (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. -15- 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 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. -16- (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 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 -17- 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. --------------- (a) The Servicer 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 Servicer 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 Servicer 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 -18- 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 Servicer in writing of the commencement thereof; provided, however, the omission to so notify the Servicer will not relieve the - -------- ------- Servicer from any liability which it may have to the Administrative Agent or Class C Purchaser under this subsection 2.5(a) except to the extent the Servicer 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. -19- ARTICLE 3 CONDITIONS PRECEDENT 3.1 Conditions to Initial Purchase. The following were conditions ------------------------------ precedent to the purchase of the Class C Notes by the Class C Purchasers on the Closing Date: (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 -20- 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 (xiii) evidence satisfactory to the Administrative Agent that all amounts outstanding under First Consumers Master Trust Series 2000-A have been repaid in full; -21- (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 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 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 -22- 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 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 FCNB since the quarter ended December 31, 2000 except as disclosed in the Prospectus. -23- 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, the Seller or FCNB or the transactions contemplated by, or Issuer's ability to perform its 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 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.) -24- (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 date hereof, 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 Seller, 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 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; -25- (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. 4.4 Representations and Warranties of Seller. Seller ---------------------------------------- represents and warrants to the Class C Purchasers and the Administrative Agent that the representations and warranties of Seller 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). Seller further represents and warrants to, and agrees with, each Class C Purchaser and the Administrative Agent that, as of the date hereof: (a) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, 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 Seller 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, this Agreement and each Related Document to which the Seller is a party will constitute the legal, valid and binding agreement of the Seller, 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 Seller'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 Seller or the transactions contemplated by, or Seller's ability to perform its 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 -26- to the Seller, any order or decree of any court to which the Seller is subject, its governing instrument or any mortgage, indenture, contract or other agreement to which the Seller is a party or by which it or any significant portion of the Seller'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 Seller or the transactions contemplated by, or the Seller'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 Seller, threatened, against the Seller 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 Seller or any significant portion of the Seller properties, in each case which would have a material adverse effect on the Seller or the transactions contemplated by, or the ability of the Seller 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 Seller 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. ARTICLE 5 COVENANTS 5.1 Covenants. Each of the Seller, 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 the Seller, 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 the Pooling and Servicing Agreement, the Collateral Series Supplement and the Collateral Certificate which are contained therein; -27- (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 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 the Seller, 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 Seller, 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 2001-A Pay Out Event has occurred (and otherwise at the expense of the Administrative Agent), -28- (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 the Seller, 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) Neither the Seller nor FCNB shall 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 the Seller, 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; (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 -29- taken or proposed to be taken by the Servicer, the Seller, 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 the Seller, 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), the Seller, 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 the Seller, 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 the Seller, 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 the Seller, 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 the Seller, 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 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 -32- 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 Seller, 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 the Seller, 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 the Seller, 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 the Seller, 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 the Seller, FCNB, the Servicer, the Issuer, First Consumers Master Trust, the Collateral 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 -33- any) of the Seller, 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 the Seller, 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, the Seller 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 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. -34- 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 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 the Seller, 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 -35- 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 the Seller, 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, the Seller, 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. (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 -36- 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 Seller, 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. (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. -37- (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 Seller, 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). 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 -38- 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: 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. Seller: First Consumers Credit Corporation 400 West 9/th/ Street Suite 302D Wilmington, DE 19801 Attention: President Telephone: 302-429-7609 with separate copies to FCNB. FCNB, Servicer: 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 -39- 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 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 -40- 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 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 Seller, the Issuer, FCNB (as 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. -41- 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 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 Seller, the Issuer and FCNB under this Agreement or any other agreement, instrument, document or certificate executed and delivered or issued by the Seller, the Issuer in connection herewith are solely the corporate obligations of the Seller, 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 Seller, the Issuer or FCNB in connection herewith against any holder of a Trust Certificate, employee, officer, director, incorporator, agent or trustee of the Seller, the Issuer, FCNB or any Affiliate of the Seller, 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 -42- 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 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. (e) Each of the Issuer, the Servicer, 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 Seller 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. 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. -43- 9.15 Ongoing Obligations of FCNB All obligations of FCNB , as Seller, --------------------------- made in the Existing Purchase Agreement with respect to any date prior to the date of this Agreement, shall remain in full force and effect. On and after the date of this Agreement, FCNB shall be relieved of all of its obligations as Seller under the Existing Purchase Agreement, other than obligations arising under the Existing Purchase Agreement prior to the date of this Agreement. -44- IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated 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 Servicer By: /s/ John R. Steele ---------------------------------------- Name: John R. Steele Title: Treasurer FIRST CONSUMERS CREDIT CORPORATION, as Seller By: /s/ John R. Steele ---------------------------------------- Name: John R. Steele Title: Treasurer DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative Agent By: /s/ Robert Lopez ---------------------------------------- Name: Robert Lopez Title: Vice President By: /s/ Joy Margolies ---------------------------------------- Name: Joy Margolies Title: Vice President -45- Address for Notices: 31 West 52nd Street New York, New York 10019 Attention: Structured Finance Department/Securitization Facsimile No.: (212) 469-7185 GEMINI SECURITIZATION CORP. (formerly known as Twin Towers Inc.), as Class C Purchaser Commitment: $36,000,000 By:_______________________________________ Name: Title: 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 Amended and Restated Class C Note Purchase Agreement dated as of December 31, 2001 (as in effect, the "Note Purchase Agreement"), among First Consumers Credit Card Master Note Trust, First Consumers Credit Corporation, 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, independently and without reliance upon the Administrative Agent or any other Class C -1- 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. (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 -2- 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 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 -1- 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. 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 -2- 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 Amended and Restated Class C Note Purchase Agreement, dated as of December 31, 2001, among First Consumers Credit Card Master Note Trust, First Consumers Credit Corporation, 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. (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 -2- 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 Seller, the Issuer, FCNB or the Indenture Trustee, or the performance or observance by the Seller, 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 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 -3- 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: Amended and Restated Class C Note Purchase Agreement, dated as of December 31, 2001, among First Consumers Credit Card Master Note Trust, First Consumers Credit Corporation, 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: [If applicable:] -1- 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 Amended and Restated Class C Note Purchase Agreement, dated as of December 31, 2001, among First Consumers Credit Card Master Note Trust, First Consumers Credit Corporation, 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- -----END PRIVACY-ENHANCED MESSAGE-----