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Exhibit 4.7
AMENDMENT TO AMENDED AND
RESTATED POOLING AND SERVICING AGREEMENT
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This Amendment is entered into as of the 26th day of September, 1996, by
Spiegel Credit Corporation III ("SCCIII"), First Consumers National Bank
("FCNB") and Harris Trust and Savings Bank, as Trustee ("Trustee").
WHEREAS, SCCIII, FCNB and Trustee are parties to an Amended and Restated
Pooling and Servicing Agreement dated as of December 13, 1994 (such Agreement,
as amended and supplemented to date, the "Pooling and Servicing Agreement";
capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Pooling and Servicing Agreement); and
WHEREAS, the parties wish to further amend the Pooling and Servicing
Agreement pursuant to Section 13.1(a) thereof;
NOW, THEREFORE, in consideration of the mutual agreements contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Section 1.1 of the Pooling and Servicing Agreement is hereby amended
by inserting the following definition of "Merchant Fees" immediately after the
definition of "Lien" therein:
"Merchant Fees" shall mean amounts payable (whether by discount or
direct payment) to FCNB by Spiegel or any of its merchandising Affiliates
in respect of charges made to Accounts.
2. Section 1.1 of the Pooling and Servicing Agreement is hereby further
amended by amending the definitions of "Collections" and "Deposit Obligation"
therein to read, respectively, as follows:
"Collections" shall mean (i) all payments (including Insurance
Proceeds and Recoveries) received by the Servicer or by Seller in respect
of the Receivables, in the form of cash, checks, wire transfers, ATM
transfers, or other form of payment, and (ii) all amounts deposited by FCNB
pursuant to Section 3.8. 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
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Collection shall be deemed to be a payment in respect of Principal
Receivables to the extent of such excess.
"Deposit Obligation" shall mean the obligation of the Seller to make
any deposit to the Excess Funding Account or the Collection Account
pursuant to subsection 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
pursuant to this Agreement.
3. Article II of the Pooling and Servicing Agreement is hereby amended by
adding at the end thereof the following new Section 2.9:
Section 2.9 Net Worth. The Seller agrees to retain in force and to
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enforce in accordance with its terms that certain Demand Note (the "Demand
Note") dated as of September 20, 1994, made by Spiegel and payable to the
order of the Seller; provided, however, that at such time as the Demand
Note shall become due in accordance with its terms, the Seller may enter
into a new demand note or alternative arrangement (in lieu of receiving or
retaining cash payable under the Demand Note) if it obtains an Opinion of
Counsel that such new demand note or alternate arrangement will not cause
the Trust to be classified for federal income tax purposes as an
association taxable as a corporation.
4. Article III of the Pooling and Servicing Agreement is hereby amended
by adding at the end thereof the following new Section 3.8:
Section 3.8 Merchant Fees. Within 5 days after the end of each
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Monthly Period, FCNB shall deposit in the Collection Account an amount
equal to the Merchant Fees received (or deemed received) by it during such
Monthly Period; provided, however, that no such deposit shall be made if
the same shall be prohibited by law or regulation, or if FCNB's
regulator(s) shall have requested that such deposits not be made. All
amounts so deposited shall constitute Finance Charge Collections in respect
of such Monthly Period.
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5. Article VII of the Pooling and Servicing Agreement is hereby amended
by adding at the end thereof the following new Section 7.4:
Section 7.4 Liabilities. Notwithstanding Section 7.3, the Seller by
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entering into this Agreement, and any Holder of any interest in the
Exchangeable Seller Certificate, by its acceptance thereof, agree to be
liable, directly to the injured party, for the entire amount of any losses,
claims, damages or liabilities (other than those that would be incurred by
an Investor Certificateholder if the Investor Certificates were notes
secured by the Receivables, for example, as a result of the performance of
the Receivables, market fluctuations, a shortfall or failure to make
payment under any Enhancement or other similar market or investment risks
associated with ownership of the Investor Certificates) arising out of or
based on the arrangement created by this Agreement or the actions of the
Servicer taken pursuant hereto (to the extent that, if the Trust Assets at
the time the claim is made were used to pay in full all outstanding
Certificates of all Series, the Trust Assets that would remain after the
Investor Certificateholders and Enhancement Providers, if any, were paid in
full would be insufficient to pay any such losses, claims, damages or
liabilities) as though this Agreement created a partnership under the
Illinois Uniform Partnership Act in which the Seller and any such other
Holder of the Exchangeable Seller Certificate were partners.
6. The Pooling and Servicing Agreement, as amended hereby, is in all
respects ratified and confirmed.
7. This Amendment shall be binding upon and inure to the benefit of the
parties hereto and their respective permitted successors and assigns.
8. This Amendment may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all of such
counterparts shall together constitute one and the same instrument.
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9. This Amendment 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.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed by their respective officers as of the day and year first above
written.
SPIEGEL CREDIT CORPORATION III
By:__________________________________
Title: _____________________________
FIRST CONSUMERS NATIONAL BANK
By:__________________________________
Title: _____________________________
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By:__________________________________
Title: _____________________________
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CONSENT
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As contemplated by Section 13 of the Series 1995-B Supplement to the
aforementioned Pooling and Servicing Agreement, the undersigned, as
"Administrative Agents" under such Supplement, hereby consent to the amendments
effected by the foregoing Amendment.
J. P. MORGAN DELAWARE, as
DFC Administrative Agent
By:__________________________________
Title: _____________________________
DEUTSCHE BANK AG, NEW YORK BRANCH,
as TTI Administrative Agent
By:__________________________________
Title: _____________________________
By:__________________________________
Title: _____________________________
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