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PARTNERS FIRST RECEIVABLES FUNDING, LLC
Transferor,
PARTNERS FIRST HOLDINGS, LLC
Servicer,
and
THE BANK OF NEW YORK
Trustee
PARTNERS FIRST CREDIT CARD MASTER TRUST
POOLING AND SERVICING AGREEMENT
Dated as of January 29, 1998
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Other Definitional Provisions . . . . . . . . . . . . . . 34
ARTICLE II
CONVEYANCE OF RECEIVABLES
Section 2.1 Conveyance of Receivables . . . . . . . . . . . . . . . . 36
Section 2.2 Acceptance by Trustee . . . . . . . . . . . . . . . . . . 38
Section 2.3 Representations and Warranties of the
Transferor . . . . . . . . . . . . . . . . . . . . . . . 39
Section 2.4 Representations and Warranties of the
Transferor Relating to the Agreement and Any
Supplement and the Receivables. . . . . . . . . . . . . . 40
Section 2.5 Reassignment of Ineligible Receivables . . . . . . . . . 42
Section 2.6 Reassignment of Certificateholders' Interest in
Trust Portfolio . . . . . . . . . . . . . . . . . . . . . 44
Section 2.7 Covenants of the Transferor . . . . . . . . . . . . . . . 45
Section 2.8 Covenants of the Transferor with Respect to
Receivables Purchase Agreement . . . . . . . . . . . . . 49
Section 2.9 Addition of Accounts . . . . . . . . . . . . . . . . . . 50
Section 2.10 Removal of Accounts and Participation Interests . . . . . 55
Section 2.11 Account Allocations . . . . . . . . . . . . . . . . . . . 57
Section 2.12 Discount Option . . . . . . . . . . . . . . . . . . . . . 58
Section 2.13 Premium Option . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.1 Acceptance of Appointment and Other Matters
Relating to the Servicer . . . . . . . . . . . . . . . . 61
Section 3.2 Servicing Compensation . . . . . . . . . . . . . . . . . 63
Section 3.3 Representations, Warranties and Covenants of
the Servicer . . . . . . . . . . . . . . . . . . . . . . 63
Section 3.4 Reports and Records for the Trustee . . . . . . . . . . . 67
Section 3.5 Annual Certificate of Servicer . . . . . . . . . . . . . 68
Section 3.6 Annual Servicing Report of Independent Public
Accountants; Copies of Reports Available . . . . . . . . 68
Section 3.7 Tax Treatment . . . . . . . . . . . . . . . . . . . . . . 69
Section 3.8 Notices to Holdings . . . . . . . . . . . . . . . . . . . 70
Section 3.9 Adjustments . . . . . . . . . . . . . . . . . . . . . . . 70
Section 3.10 Reports to the Commission . . . . . . . . . . . . . . . . 71
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.1 Rights of Certificateholders . . . . . . . . . . . . . . 72
Section 4.2 Establishment of Collection Account and Special
Funding Account . . . . . . . . . . . . . . . . . . . . . 72
Section 4.3 Collections and Allocations . . . . . . . . . . . . . . . 75
Section 4.4 Shared Principal Collections . . . . . . . . . . . . . . 77
Section 4.5 Additional Withdrawals from the Collection
Account . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 4.6 Allocation of Trust Assets to Series or Groups . . . . . 77
ARTICLE V
DISTRIBUTIONS AND REPORTS TO
CERTIFICATEHOLDERS
ARTICLE VI
THE CERTIFICATES
Section 6.1 The Certificates . . . . . . . . . . . . . . . . . . . . 80
Section 6.2 Authentication of Certificates . . . . . . . . . . . . . 80
Section 6.3 New Issuances . . . . . . . . . . . . . . . . . . . . . . 81
Section 6.4 Registration of Transfer and Exchange of
Certificates . . . . . . . . . . . . . . . . . . . . . . 83
Section 6.5 Mutilated, Destroyed, Lost or Stolen
Certificates . . . . . . . . . . . . . . . . . . . . . . 87
Section 6.6 Persons Deemed Owners . . . . . . . . . . . . . . . . . . 87
Section 6.7 Appointment of Paying Agent . . . . . . . . . . . . . . . 88
Section 6.8 Access to List of Registered
Certificateholders' Names and Addresses . . . . . . . . . 89
Section 6.9 Authenticating Agent . . . . . . . . . . . . . . . . . . 90
Section 6.10 Book-Entry Certificates . . . . . . . . . . . . . . . . . 91
Section 6.11 Notices to Clearing Agency . . . . . . . . . . . . . . . 92
Section 6.12 Definitive Certificates . . . . . . . . . . . . . . . . . 92
Section 6.13 Global Certificate; Exchange Date . . . . . . . . . . . . 93
Section 6.14 Meetings of Certificateholders . . . . . . . . . . . . . 95
Section 6.15 Uncertificated Classes . . . . . . . . . . . . . . . . . 98
ARTICLE VII
OTHER MATTERS RELATING TO THE TRANSFEROR
Section 7.1 Liability of the Transferor . . . . . . . . . . . . . . . 99
Section 7.2 Merger or Consolidation of, or Assumption of
the Obligations of, the Transferor . . . . . . . . . . . 99
Section 7.3 Limitations on Liability of the Transferor . . . . . . . 100
Section 7.4 Transferor Authorized to Execute Registration
Statements and Reports on Behalf of the Trust . . . . . . 101
ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER
Section 8.1 Liability of the Servicer . . . . . . . . . . . . . . . . 102
Section 8.2 Merger or Consolidation of, or Assumption of
the Obligations of, the Servicer . . . . . . . . . . . . 102
Section 8.3 Limitation on Liability of the Servicer and
Others . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 8.4 Servicer Indemnification of the Trust and the
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 8.5 Resignation of the Servicer . . . . . . . . . . . . . . . 103
Section 8.6 Access to Certain Documentation and Information
Regarding the Receivables . . . . . . . . . . . . . . . . 104
Section 8.7 Delegation of Duties . . . . . . . . . . . . . . . . . . 105
Section 8.8 Examination of Records . . . . . . . . . . . . . . . . . 105
ARTICLE IX
INSOLVENCY EVENTS
Section 9.1 Rights upon the Occurrence of an Insolvency
Event . . . . . . . . . . . . . . . . . . . . . . . . . . 106
ARTICLE X
SERVICER DEFAULTS
Section 10.1 Servicer Defaults . . . . . . . . . . . . . . . . . . . . 108
Section 10.2 Trustee To Act; Appointment of Successor . . . . . . . . 111
Section 10.3 Notification to Certificateholders . . . . . . . . . . . 113
ARTICLE XI
THE TRUSTEE
Section 11.1 Duties of Trustee . . . . . . . . . . . . . . . . . . . . 114
Section 11.2 Certain Matters Affecting the Trustee . . . . . . . . . . 116
Section 11.3 Trustee Not Liable for Recitals in Certificates . . . . . 118
Section 11.4 Trustee May Own Certificates . . . . . . . . . . . . . . 118
Section 11.5 The Servicer To Pay Trustee's Fees and Expenses . . . . . 118
Section 11.6 Eligibility Requirements for Trustee . . . . . . . . . . 119
Section 11.7 Resignation or Removal of Trustee . . . . . . . . . . . . 119
Section 11.8 Successor Trustee . . . . . . . . . . . . . . . . . . . . 120
Section 11.9 Merger or Consolidation of Trustee . . . . . . . . . . . 121
Section 11.10 Appointment of Co-Trustee or Separate
Trustee . . . . . . . . . . . . . . . . . . . . . . . . .121
Section 11.11 Tax Returns . . . . . . . . . . . . . . . . . . . . . . .123
Section 11.12 Trustee May Enforce Claims Without
Possession of Certificates . . . . . . . . . . . . . . . .123
Section 11.13 Suits for Enforcement . . . . . . . . . . . . . . . . . .123
Section 11.14 Rights of Certificateholders To Direct
Trustee . . . . . . . . . . . . . . . . . . . . . . . . .124
Section 11.15 Representations and Warranties of Trustee . . . . . . . .124
Section 11.16 Maintenance of Office or Agency . . . . . . . . . . . . .125
ARTICLE XII
TERMINATION
Section 12.1 Termination of Trust . . . . . . . . . . . . . . . . . . 126
Section 12.2 Final Distribution . . . . . . . . . . . . . . . . . . . 126
Section 12.3 The Transferor's Termination Rights . . . . . . . . . . . 128
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Amendment; Waiver of Past Defaults . . . . . . . . . . . 129
Section 13.2 Protection of Right, Title and Interest to
Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Section 13.3 Limitation on Rights of Certificateholders . . . . . . . 132
Section 13.4 Governing Law . . . . . . . . . . . . . . . . . . . . . 133
Section 13.5 Notices; Payments . . . . . . . . . . . . . . . . . . . . 134
Section 13.6 Severability of Provisions . . . . . . . . . . . . . . . 135
Section 13.7 Certificates Nonassessable and Fully Paid . . . . . . . 135
Section 13.8 Further Assurances . . . . . . . . . . . . . . . . . . . 135
Section 13.9 Nonpetition Covenant . . . . . . . . . . . . . . . . . . 135
Section 13.10 No Waiver; Cumulative Remedies . . . . . . . . . . . . . 136
Section 13.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . 136
Section 13.12 Third-Party Beneficiaries . . . . . . . . . . . . . . . 136
Section 13.13 Actions by Certificateholders . . . . . . . . . . . . . 136
Section 13.14 Rule 144A Information . . . . . . . . . . . . . . . . . 136
Section 13.15 Merger and Integration . . . . . . . . . . . . . . . . . 137
Section 13.16 Headings . . . . . . . . . . . . . . . . . . . . . . . . 137
EXHIBITS
Exhibit A Form of Transferor Certificate
Exhibit B Form of Assignment of Receivables in
Additional Accounts
Exhibit C Form of Reassignment of Receivables in Removed
Accounts
Exhibit D Form of Annual Servicer's Certificate
Exhibit E-1 Form of Opinion of Counsel with respect to
Amendments
Exhibit E-2 Form of Opinion of Counsel with respect to
Accounts
Exhibit E-3 Form of Annual Opinion of Counsel
Exhibit F-1 Form of Certificate of Foreign Clearing Agency
Exhibit F-2 Form of Alternate Certificate to be delivered to Foreign
Clearing Agency
Exhibit F-3 Form of Certificate to be delivered to Foreign Clearing
Agency
Exhibit G-1 Private Placement Legend
Exhibit G-2 Representation Letter
Exhibit G-3 ERISA Legend
SCHEDULES
Schedule 1 List of Accounts [Deemed Incorporated]
POOLING AND SERVICING AGREEMENT dated as of January 29, 1998,
among PARTNERS FIRST RECEIVABLES FUNDING, LLC, a Delaware limited liability
company, as Transferor; PARTNERS FIRST HOLDINGS, LLC, a Delaware limited
liability company, as Servicer; and THE BANK OF NEW YORK, a New York
banking corporation, as Trustee.
In consideration of the mutual agreements herein contained, each
party agrees as follows for the benefit of the other parties, the
Certificateholders and any Series Enhancer (as defined below) to the extent
provided herein and in any Supplement:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement, the
following words and phrases shall have the following meanings, and the
definitions of such terms are applicable to the singular as well as the
plural forms of such terms and to the masculine as well as to the feminine
and neuter genders of such terms.
"Account" shall mean (a) each Initial Account, (b) each
Additional Account (but only from and after the Addition Date with respect
thereto), (c) each Related Account, and (d) each Transferred Account, but
shall exclude (e) any Account all the Receivables in which on and after the
date of such action are: (i) removed by the Transferor pursuant to Section
2.10, (ii) reassigned to the Transferor pursuant to Section 2.5 or (iii)
assigned and transferred to the Servicer pursuant to Section 3.3.
"Account Originator" shall mean the original issuer of the credit
card relating to an Account, pursuant to a Credit Card Agreement or a
purchaser of such Account.
"Account Originator Purchase Agreement" shall mean the
receivables purchase agreement between PFR and an Account Originator,
pursuant to which the Account Originator sells Receivables to PFR.
"Account Owner" shall mean, with respect to any Account, the
entity which is either the Account Originator with respect to such Account
or an entity which has acquired such Account, and in either case, has sold
the related Receivables to PFR or the Transferor pursuant to a Receivables
Purchase Agreement.
"Account Owner Purchase Agreement" shall mean the receivables
purchase agreement between PFR and an Account Owner, pursuant to which the
Account Owner sells Receivables to PFR.
"Accumulation Period" shall mean, with respect to any Series, or
any Class within a Series, a period following the Revolving Period, which
shall be the controlled accumulation period, the principal accumulation
period, the rapid accumulation period, the optional accumulation period,
the limited accumulation period or other accumulation period, in each case
as defined with respect to such Series in the related Supplement.
"Act" shall mean the Securities Act of 1933, as amended.
"Addition Date" shall mean (i) with respect to Aggregate Addition
Accounts, the date from and after which such Aggregate Addition Accounts
are to be included as Accounts pursuant to subsection 2.9(a) or (b), (ii)
with respect to Participation Interests, the date from and after which such
Participation Interests are to be included as assets of the Trust pursuant
to subsection 2.9(a) or (b), and (iii) with respect to New Accounts, the
date on which such New Accounts are activated.
"Additional Account" shall mean each New Account and each
Aggregate Addition Account.
"Additional Cut-Off Date" shall mean (i) with respect to
Aggregate Addition Accounts or Participation Interests, the date specified
as such in the notice delivered with respect thereto pursuant to subsection
2.9(c) and (ii) with respect to New Accounts, the later of the dates on
which such New Accounts are originated or designated pursuant to subsection
2.9(d).
"Adjustment Payment" shall have the meaning specified in
subsection 3.9(a).
"Adjustment Payment Shortfall" shall mean, for any Monthly
Period, the amount by which the Transferor Amount would have been reduced
below zero as a result of adjustments to the aggregate amount of Principal
Receivables pursuant to subsection 3.9 of the Agreement and with respect to
which the Transferor was obligated but failed to make a deposit into the
Special Funding Account on the related Distribution Date.
"Adverse Effect" shall mean, with respect to any action, that
such action will (a) result in the occurrence of a Pay Out Event or a
Reinvestment Event or (b) materially adversely affect the amount or timing
of distributions to be made to the Investor Certificateholders of any
Series or Class pursuant to this Agreement and the related Supplement.
"Affiliate" shall mean, 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" shall
mean 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 Addition" shall mean the designation of additional
Eligible Accounts, other than New Accounts, to be included as Accounts or
of Participation Interests to be included as Trust Assets pursuant to
subsection 2.9(a) or (b).
"Aggregate Addition Account" shall mean each Eligible Account
designated pursuant to subsection 2.9(a) or (b) to be included as an
Account and identified in the computer file or microfiche list delivered to
the Trustee by the Transferor pursuant to Sections 2.1 and 2.9(h).
"Aggregate Invested Amount" shall mean, as of any date of
determination, the aggregate adjusted Invested Amounts of all Series of
Certificates issued and outstanding on such date of determination.
"Agreement" shall mean this Pooling and Servicing Agreement and
all amendments hereof and supplements hereto, including, with respect to
any Series or Class, the related Supplement.
"Amortization Period" shall mean, with respect to any Series, or
any Class within a Series, a period following the Revolving Period, which
shall be the controlled amortization period, the principal amortization
period, the rapid amortization period, the optional amortization period,
the limited amortization period or other amortization period, in each case
as defined with respect to such Series in the related Supplement.
"Annual Membership Fee" shall have the meaning specified in the
Credit Card Agreement applicable to each Account for annual membership fees
or similar terms.
"Applicants" shall have the meaning specified in Section 6.8.
"Appointment Date" shall have the meaning specified in subsection
9.1(a).
"Assignment" shall have the meaning specified in subsection
2.9(h).
"Authorized Newspaper" shall mean any newspaper or newspapers of
general circulation in the Borough of Manhattan, The City of New York,
printed in the English language (and, with respect to any Series or Class,
if and so long as the Investor Certificates of such Series are listed on
the Luxembourg Stock Exchange and such Exchange shall so require, in
Luxembourg, printed in any language satisfying the requirements of such
exchange) and customarily published on each business day at such place,
whether or not published on Saturdays, Sundays or holidays.
"Automatic Addition Commencement Date" shall mean the date
specified in Section 2.9(h) hereof.
"Automatic Addition Suspension Date" shall mean the Business Day
specified in Section 2.9(h) hereof.
"Automatic Addition Termination Date" shall mean the Business Day
specified by the Transferor pursuant to Section 2.9(h) hereof.
"Average Rate" shall mean, as of any date of determination and
with respect to any Group, the percentage equivalent of a decimal equal to
the sum of the amounts for each outstanding Series (or each Class within
any Series consisting of more than one Class) within such Group obtained by
multiplying (a) the Certificate Rate (reduced to take into account the
payments received pursuant to any interest rate agreements net of any
amounts payable under such agreements, or, if such agreements result in a
net amount payable, increased by such net amount payable) for such Series
or Class, by (b) a fraction, the numerator of which is the aggregate unpaid
principal amount of the Investor Certificates of such Series or Class and
the denominator of which is the aggregate unpaid principal amount of all
Investor Certificates within such Group.
"Bearer Certificates" shall have the meaning specified in Section
6.1.
"Benefit Plan" shall have the meaning specified in subsection
6.4(c).
"Book-Entry Certificates" shall mean beneficial interests in the
Investor Certificates, ownership and transfers of which shall be made
through book entries by a Clearing Agency as described in Section 6.10.
"Business Day" shall mean any day other than (a) a Saturday or
Sunday or (b) any other day on which national banking associations or state
banking institutions in Illinois, Massachusetts, New York or any other
State in which the principal executive offices of Holdings or the Trustee,
is located, are authorized or obligated by law, executive order or
governmental decree to be closed or (c) for purposes of any particular
Series, any other day specified in the applicable Series Supplement.
"Cash Advance Fees" shall mean cash advance transaction fees and
cash advance late fees, if any, as specified in the Credit Card Agreement
applicable to each Account.
"Cedel" shall mean Cedel Bank, societe anonyme, a professional
depository incorporated under the laws of Luxembourg, and its successors.
"Certificate" shall mean any one of the Investor Certificates or
the Transferor Certificates.
"Certificateholder" or "Holder" shall mean an Investor
Certificateholder or a Person in whose name any one of the Transferor
Certificates is registered.
"Certificateholders' Interest" shall have the meaning specified
in Section 4.1. For purposes of determining whether Holders of Investor
Certificates evidencing a specified percentage of the Certificateholders'
Interest have approved, consented or otherwise agreed to any action
hereunder, such determination shall be made based on the percentage of the
Invested Amount represented by such Investor Certificates.
"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 as a Clearing
Agency Participant or as an indirect participant, in accordance with the
rules of such Clearing Agency).
"Certificate Rate" shall mean, as of any particular date of
determination and with respect to any Series or Class, the certificate rate
as of such date specified therefor in the related Supplement.
"Certificate Register" shall mean the register maintained
pursuant to Section 6.4, providing for the registration of the Registered
Certificates and transfers and exchanges thereof.
"Class" shall mean, with respect to any Series, any one of the
classes of Investor Certificates of that Series.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended, and serving as clearing agency for a Series or Class of
Book-Entry Certificates.
"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
closing date specified in the related Supplement.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Collection Account" shall have the meaning specified in Section
4.2.
"Collections" shall mean all payments by or on behalf of Obligors
(including Insurance Proceeds) received in respect of the Receivables, in
the form of cash, checks, wire transfers, electronic transfers, ATM
transfers or any other form of payment in accordance with a Credit Card
Agreement in effect from time to time and all other amounts specified by
this Agreement or any Supplement as constituting Collections and shall
include Recoveries, investment earnings on amounts on deposit in the
Collection Account, Special Funding Account and any Series Account to the
extent specified in any Series Supplement and all ancillary fee income
received by the Servicer in respect of the Accounts. As specified in any
Participation Interest Supplement or Series Supplement, Collections shall
include amounts received with respect to Participation Interests. The
aggregate Recoveries received during any Monthly Period not in excess of
the aggregate amount of Principal Receivables (other than Ineligible
Receivables) which became Defaulted Receivables during such Monthly Period
shall be treated as Collections of Principal Receivables. The aggregate
Recoveries received during any Monthly Period in excess of the aggregate
Principal Receivables (other than Ineligible Receivables) which became
Defaulted Receivables during such Monthly Period shall be treated as
Collections of Finance Charge Receivables. Collections with respect to any
Monthly Period shall include a portion, calculated pursuant to subsection
2.7(i), of Interchange paid to the Trust with respect to such Monthly
Period, to be applied as if such amount were Collections of Finance Charge
Receivables for all purposes. Amounts withdrawn from the yield supplement
account or reserve account established with respect to any Series and
deposited in the Collection Account shall, unless otherwise specified in
the related Supplement, be treated as Collections of Finance Charge
Receivables.
"Common Depositary" shall mean, with respect to the Investor
Certificates of any Series or Class, the common depositary for the
respective accounts of any Foreign Clearing Agencies or any successor
thereto.
"Commission" shall mean the Securities and Exchange Commission
and its successors in interest.
"Companion Series" shall mean (i) each Series which has been
paired with another Series (which Series may be prefunded or partially
prefunded), such that the reduction of the Invested Amount of such Series
results in the increase of the Invested Amount of such other Series, as
described in the related Supplements, and (ii) such other Series.
"Corporate Trust Office" shall have the meaning specified in
Section 11.16.
"Coupon" shall have the meaning specified in Section 6.1.
"Credit Card Agreement" shall mean, with respect to a revolving
credit card account, the agreements between an Account Originator and the
Obligor governing the terms and conditions of such account, as such
agreements may be amended, modified or otherwise changed from time to time
and as distributed (including any amendments and revisions thereto) to
holders of such account.
"Credit Card Guidelines" shall mean, with respect to any Account
and the related Receivables, the respective policies and procedures of the
Account Owner (as of any date of determination, as such policies and
procedures may be amended from time to time), or of the Account Originator
(as of the date of origination of the Account), (a) relating to the
operation of its credit card business as of such date, which generally are
applicable to its portfolio of revolving credit card accounts or, in the
case of an Account Owner that has only a portion of its portfolio subject
to a Receivables Purchase Agreement, applicable to such portion of its
portfolio, and in each case which are consistent with prudent practice,
including the policies and procedures for determining the creditworthiness
of credit card customers and the extension of credit to credit card
customers, and (b) relating to the maintenance of credit card accounts and
collection of credit card receivables.
"Date of Processing" shall mean, with respect to any transaction
or receipt of Collections, the date on which such transaction is first
recorded on the Servicer's computer file of revolving credit card accounts
(without regard to the effective date of such recordation).
"Defaulted Amount" shall mean, with respect to any Monthly
Period, an amount (which shall not be less than zero) equal to (a) the
excess, if any, of the amount of Principal Receivables which became
Defaulted Receivables in such Monthly Period over the Recoveries for such
Monthly Period, minus (b) the amount of any Defaulted Receivables of which
the Transferor or the Servicer became obligated to accept reassignment or
assignment in accordance with the terms of this Agreement during such
Monthly Period; provided, however, that, if an Insolvency Event occurs with
respect to the Transferor, the amount of such Defaulted Receivables which
are subject to reassignment to the Transferor in accordance with the terms
of this Agreement shall not be added to the sum so subtracted and, if any
of the events described in subsection 10.1(d) occur with respect to the
Servicer, the amount of such Defaulted Receivables which are subject to
reassignment or assignment to the Servicer in accordance with the terms of
this Agreement shall not be added to the sum so subtracted.
"Defaulted Receivables" shall mean, with respect to any Monthly
Period, all Principal Receivables which are charged off as uncollectible in
such Monthly Period in accordance with the Credit Card Guidelines and the
Servicer's customary and usual servicing procedures for servicing revolving
credit card accounts. A Principal Receivable shall become a Defaulted
Receivable on the day on which such Principal Receivable is recorded as
charged-off on the Servicer's computer file of revolving credit card
accounts.
"Definitive Certificates" shall have the meaning specified in
Section 6.10.
"Definitive Euro-Certificates" shall have the meaning specified
in subsection 6.13(a).
"Deposit Date" shall mean each day on which the Servicer deposits
Collections in the Collection Account.
"Depository Agreement" shall mean, with respect to any Series or
Class of Book-Entry Certificates, the agreement among the Transferor, the
Trustee and the Clearing Agency.
"Determination Date" shall mean, unless otherwise specified in
the Supplement for a particular Series, the third Business Day preceding
the Distribution Date in each Monthly Period.
"Discount Option Date" shall mean each date on which a Discount
Percentage designated by the Transferor pursuant to Section 2.12 takes
effect.
"Discount Option Receivables" shall have the meaning specified in
subsection 2.12(a). The aggregate amount of Discount Option Receivables
outstanding on any Date of Processing occurring on or after the Discount
Option Date shall equal the sum 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 Principal Receivables created
on such Date of Processing (without giving effect to the proviso in the
definition of Principal Receivables) and the Discount Percentage.
"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 the
numerator of which is the Discount Option Receivables and 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 preceding Monthly Period and (b) Collections of Principal
Receivables on such Date of Processing (without giving effect to the
proviso in the definition of Principal Receivables).
"Discount Percentage" shall mean the percentages, if any,
designated by the Transferor pursuant to subsection 2.12(a).
"Distribution Date" shall mean, with respect to any Series, the
date specified in the applicable Supplement.
"Document Delivery Date" shall have the meaning specified in
subsection 2.9(g).
"Dollars", "$" or "U.S. $" shall mean United States dollars.
"Eligible Account" shall mean a consumer revolving credit card
account, which, as of (i) the Initial Issuance Date, in the case of an
Initial Account, or (ii) as of the applicable Additional Cut Off Date, in
the case of an Additional Account:
(a) is a revolving credit card account in existence and
maintained by the applicable Account Owner;
(b) is payable in Dollars;
(c) has a cardholder who has provided, as his most recent
billing address, an address located in the United States or its
territories or possessions or a military address;
(d) except as provided below, has a cardholder who has not been
identified by the Servicer in its computer files as being involved in
a voluntary or involuntary bankruptcy proceeding;
(e) has not been identified by the Servicer in its computer
files as an account with respect to which the related card has been
lost or stolen or has a cardholder who has not been identified by the
Servicer in its computer files as being deceased;
(f) is not sold or pledged to any other party except for any
sale by an Account Originator to an entity that has entered into a
Receivables Purchase Agreement;
(g) does not have outstanding receivables which have been sold
or pledged by the related Account Owner to any party other than PFR or
the Transferor pursuant to a Receivables Purchase Agreement;
(h) except as provided below, does not have any Receivables that
are Defaulted Receivables;
(i) does not have any Receivables that have been identified by
the Servicer or the relevant Obligor as having been incurred as a
result of fraudulent use of any related credit card;
(j) was created in accordance with the Credit Card Guidelines of
the applicable Account Originator at the time of creation of such
account;
(k) with respect to Additional Accounts, may, in lieu of
satisfying the requirements of clauses (a) through (j) above, be an
account which shall have satisfied the Rating Agency Condition.
Eligible Accounts may include Accounts, the Receivables of which have been
written off, the Receivables with respect to which the Servicer believes
the related Obligor is bankrupt as of the Initial Issuance Date, with
respect to the Initial Accounts, and as of the related Additional Cut-Off
Date, with respect to Additional Accounts; provided, that (a) the balance
of all Receivables included in such Accounts is reflected on the books and
records of such Seller (and is treated for purposes of this Agreement) as
"zero" and (b) charging privileges with respect to all such Accounts have
been canceled in accordance with the relevant Credit Card Guidelines.
"Eligible Deposit Account" shall mean either (a) a segregated
account with an Eligible Institution or (b) a segregated trust account with
the corporate trust department of a depository institution which is
authorized to engage in trust activities and which is 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 acts
as a trustee for funds deposited in such account, so long as any of the
unsecured, unguaranteed senior debt securities of such depository
institution shall have a credit rating from the Rating Agency in one of its
generic credit rating categories that signifies investment grade.
"Eligible Institution" shall mean any depository institution
(which may be the 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) is a member of the FDIC and (b) has (i) a long-term unsecured
debt rating acceptable to the Rating Agency or (ii) a certificate of
deposit rating acceptable to the Rating Agency, except that no such rating
will be required with respect to an institution which maintains a trust
fund in a fully segregated trust account with the corporate trust
department of such institution; provided that such institution is a member
of the FDIC and maintains a credit rating in one of the Rating Agency's
generic credit rating categories which signifies investment grade.
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 Investments" shall mean negotiable instruments or
securities represented by instruments in bearer or registered form, or, in
the case of deposits described below, deposit accounts held in the name of
the Trustee in trust for the benefit of the Certificateholders, subject to
the exclusive custody and control of the Trustee and for which the Trustee
has sole signature authority, which evidence:
(a) obligations issued or fully guaranteed, as to timely
payment, by the United States of America or any instrumentality or
agency thereof when such obligations are backed by the full faith and
credit of the United States of America;
(b) demand deposits, time deposits or certificates of deposit
(having original maturities of no more than 365 days) of depository
institutions or trust companies incorporated under the laws of the
United States of America or any state thereof, including the District
of Columbia (or domestic branches of foreign banks) and subject to
supervision and examination by federal or state banking or depository
institution authorities; provided that at the time of the Trust's
investment or contractual commitment to invest therein, the depository
institution or trust company shall have the Highest Rating;
(c) commercial paper or other short-term securities having, at
the time of the Trust's investment or contractual commitment to invest
therein, the Highest Rating;
(d) demand deposits, time deposits and certificates of deposit
which are fully insured by the FDIC having, at the time of the Trust's
investment therein, the Highest Rating;
(e) bankers' acceptances (having original maturities of no more
than 365 days) issued by any depository institution or trust company
referred to in clause (b) above;
(f) money market funds having, at the time of the Trust's
investment therein, the Highest Rating (including funds for which the
Trustee or any of its Affiliates is investment manager or advisor);
(g) time deposits other than as referred to in clause (d) above,
with a Person the commercial paper of which has a credit rating
satisfactory to the Rating Agency;
(h) repurchase agreements transacted with either
(i) an entity subject to the United States federal
bankruptcy code, provided that (A) the repurchase agreement matures
prior to the next Distribution Date or is due on demand, (B) the
Trustee or a third party acting solely as agent for the Trustee has
possession of the collateral, (C) the Trustee on behalf of the Trust
has a perfected first priority security interest in the collateral,
(D) the market value of the collateral is maintained at the requisite
collateral percentage of the obligation in accordance with standards
of the Rating Agencies, (E) the failure to maintain the requisite
collateral level will obligate the Trustee to liquidate the collateral
immediately, (F) the securities subject to the repurchase agreement
are either obligations of, or fully guaranteed as to principal and
interest by, the United States of America or any instrumentality or
agency thereof, certificates of deposit or bankers acceptances and (G)
the securities subject to the repurchase agreement are free and clear
of any third party lien or claim; or
(ii) a financial institution insured by the FDIC, or any
broker-dealer with "retail customers" that is under the jurisdiction
of the Securities Investors Protection Corp. ("SIPC") provided that
(A) the market value of the collateral is maintained at the requisite
collateral percentage of the obligation in accordance with the
standards of the Rating Agencies, (B) the Trustee or a third party
(with a short-term debt rating of P-1 or higher by Moody's) acting
solely as agent for the Trustee has possession of the collateral, (C)
the Trustee on behalf of the Trust has a perfected first priority
security interest in the collateral, (D) the collateral is free and
clear of third party liens and, in the case of an SIPC broker, was not
acquired pursuant to a repurchase or reverse repurchase agreement and
(E) the failure to maintain the requisite collateral percentage will
obligate the Trustee to liquidate the collateral; provided, however,
that at the time of the Trust's investment or contractual commitment
to invest in any repurchase agreement, the short-term deposits or
commercial paper rating of such entity or institution in subsections
(i) and (ii) shall have a credit rating not lower than the Highest
Rating; and
(i) any other investment of a type or rating that satisfies the
Rating Agency Condition.
"Eligible Receivable" shall mean each Receivable, including,
where applicable, the underlying receivable:
(a) which has arisen in an Eligible Account;
(b) which was created in compliance in all material respects
with all Requirements of Law applicable to the related Account
Originator at the time of the creation of such Receivable and which
was created pursuant to a Credit Card Agreement which complies in all
material respects with all Requirements of Law applicable to the
related Account Originator at the time of the creation of such
Receivable and the Requirements of Law applicable to any subsequent
Account Owner with respect to such Receivable;
(c) with respect to which all material consents, licenses,
approvals or authorizations of, or registrations or declarations with,
any Governmental Authority required to be obtained, effected or given
in connection with the creation of such Receivable or the execution,
delivery and performance by the applicable Account Originator and any
subsequent Account Owner of the Credit Card Agreement pursuant to
which such Receivable was created, have been duly obtained, effected
or given and are in full force and effect;
(d) as to which at the time of the transfer of such Receivable
to the Trust, the Transferor or the Trust will have good and
marketable title thereto and which itself is, and the underlying
receivables are, free and clear of all Liens (other than any Lien for
municipal or other local taxes if such taxes are not then due and
payable or if the Transferor is then contesting the validity thereof
in good faith by appropriate proceedings and has set aside on its
books adequate reserves with respect thereto);
(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 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);
(f) which, at the time of transfer to the Trust, is not subject
to any right of rescission, setoff, counterclaim or any other defense
(including defenses arising out of violations of usury laws) of the
Obligor, other than defenses arising out of applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights in general; and
(g) which constitutes either an "account" or a "general
intangible" under and as defined in Article 9 of the UCC as then in
effect in the Relevant UCC State.
"Eligible Servicer" shall mean an entity which, at the time of
its appointment as Servicer, (a) is servicing or has the ability to service
a portfolio of revolving credit card accounts, (b) is legally qualified and
has the capacity to service the Accounts, (c) in the sole determination of
the Trustee, which determination shall be conclusive and binding, 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 or the obligations of such entity have been guaranteed by an
Affiliate thereof which has a net worth of at least $50,000,000 as of the
end of its most recent fiscal quarter.
"Enhancement Agreement" shall mean any agreement, instrument or
document governing the terms of any Series Enhancement or pursuant to which
any Series Enhancement is issued or outstanding.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Euroclear Operator" shall mean Xxxxxx Guaranty Trust Company of
New York, Brussels office, as operator of the Euroclear System.
"Excess Allocation Series" shall mean a Series that, pursuant to
the Supplement therefor, is entitled to receive certain excess Collections
of Finance Charge Receivables, as more specifically set forth in such
Supplement.
"Exchange Date" shall mean, with respect to any Series, any date
that is after the related Closing Date, in the case of Definitive
Euro-Certificates in registered form, or upon presentation of certification
of non-United States beneficial ownership (as described in Section 6.13),
in the case of Definitive Euro-Certificates in bearer form.
"FDIC" shall mean the Federal Deposit Insurance Corporation or
any successor.
"FDR" shall have the meaning specified in Section 8.7.
"Finance Charge Receivables" shall mean all amounts billed to the
Obligors on any Account in respect of (i) all Periodic Rate Finance
Charges, (ii) Cash Advance Fees, (iii) Annual Membership Fees, (iv) Late
Fees, (v) Overlimit Fees, (vi) Returned Check Fees, (vii) Discount Option
Receivables, if any, (viii) Miscellaneous Fees and Charges and (ix) any
other fees with respect to the Accounts designated by the Transferor at any
time and from time to time to be included as Finance Charge Receivables;
provided, however, that after the Premium Option Date, Finance Charge
Receivables on any Date of Processing thereafter shall mean Finance Charge
Receivables as otherwise determined pursuant to this definition minus the
amount of Premium Option Receivables. Finance Charge Receivables shall
also include (a) the interest portion of Participation Interests as shall
be determined pursuant to, and only if so provided in, the applicable
Participation Interest Supplement or Series Supplement, (b) Interchange as
calculated pursuant to the Supplement for any Series, and (c) payments in
respect of Adjustments Payment Shortfalls pursuant to the proviso in the
last sentence of subsection 3.9(a). Collections of Finance Charge
Receivables shall include (i) the aggregate Recoveries received during any
Monthly Period in excess of the aggregate Principal Receivables (other than
Ineligible Receivables) which became Defaulted Receivables during such
Monthly Period and (ii) investment earnings on amounts on deposit in the
Collection Account, Special Funding Account and any Series Account to the
extent specified in any Series Supplement.
"FIRREA" shall mean the Financial Institutions Reform, Recovery
and Enforcement Act of 1989, as amended.
"Fitch" shall mean Fitch IBCA, Inc., or its successors.
"Foreign Clearing Agency" shall mean Cedel and the Euroclear
Operator.
"Global Certificate" shall have the meaning specified in
subsection 6.13(a).
"Global Certificate Exchange Date" shall mean, with respect to
any Series or Class, a date determined by the Manager with respect to such
Series or Class which is at least 40 days after the later of the
commencement of the offering of the related Investor Certificates and the
related Series Issuance Date.
"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.
"Group" shall mean, with respect to any Series, the group of
Series, if any, in which the related Supplement specifies such Series is to
be included.
"Highest Rating" shall mean, with respect to Moody's, P-1 or Aaa,
with respect to Standard & Poor's, A-1+ or AAA, and with respect to Fitch,
F-1+ or AAA or or any rating category that will not cause a Ratings Event.
"Holdings" shall mean Partners First Holdings, LLC, a Delaware
limited liability company.
"Independent Director" shall have the meaning specified in
subsection 2.7(h)(vii).
"Ineligible Receivables" shall have the meaning specified in
subsection 2.5(a).
"Initial Account" shall mean each MasterCard and VISA(1) consumer
revolving credit card account which is identified in the computer file or
microfiche list delivered to the Trustee by the Transferor pursuant to
Section 2.1 on the Initial Issuance Date.
(1) MasterCard and VISA are registered trademarks of MasterCard
International Incorporated and VISA USA, Inc., respectively.
"Initial Issuance Date" shall mean January 29, 1998, the date the
Transferor Certificate is issued by the Trust and delivered to the
Transferor.
"Insolvency Event" shall have the meaning specified in subsection
9.1(a).
"Insolvency Proceeds" shall have the meaning specified in
subsection 9.1(b).
"Institutional Investor" shall mean an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act of 1933, as amended.
"Insurance Proceeds" shall mean 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 or any other credit
insurance policy designated by the Transferor including, without
limitation, credit insurance coverage of Receivables on a pooled basis.
"Interchange" shall mean interchange fees payable to an Account
Owner, as partial compensation for taking credit risk, absorbing fraud
losses, and funding receivables for the period prior to the initial
billing. Any reference in this Agreement or any Supplement to Interchange
shall refer only to the interchange fees that are transferred by the
Account Owner to PFR and by PFR to the Transferor, which shall be an amount
equal to the product of (i) the percentage equivalent of a fraction, the
numerator of which is the amount of cardholder sales charges in the
Accounts of such Account Owner, and the denominator of which is the total
amount of cardholder sales charges for all accounts in the Account Owner's
entire portfolio and (ii) the total interchange fees payable to the Account
Owner in respect of all of the accounts in the Account Owner's entire
portfolio. Interchange for any Series shall be calculated pursuant to the
related Supplement.
"Invested Amount" shall mean, with respect to any Series and for
any date, an amount equal to the invested amount or adjusted invested
amount, as applicable, specified in the related Supplement.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended.
"Investor Certificateholder" shall mean the Person in whose name
a Registered Certificate is registered in the Certificate Register or the
bearer of any Bearer Certificate (or the Global Certificate, as the case
may be) or Coupon.
"Investor Certificates" shall mean any certificated or
uncertificated interest in the Trust designated as, or deemed to be, an
"Investor Certificate" in the related Supplement.
"Investor Exchange" shall have the meaning specified in Section
6.3(b).
"Late Fees" shall have the meaning specified in the Credit Card
Agreement applicable to each Account for late fees or similar terms.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, equity interest,
encumbrance, lien (statutory or other), preference, participation interest,
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 UCC or comparable law of any jurisdiction to evidence
any of the foregoing; provided, however, that any assignment permitted by
subsection 6.3(b) or Section 7.2 and the lien created by this Agreement
shall not be deemed to constitute a Lien.
"Manager" shall mean the lead manager, manager or co-manager or
Person performing a similar function with respect to an offering of
Definitive Euro-Certificates.
"Miscellaneous Fees and Charges" shall mean Receivables created
pursuant to any Credit Card Agreement in respect of any administrative fees
or service charges (including any portion of insurance premiums payable by
the Obligor which the Account Owner is not required to pay to the
applicable insurer) other than Late Fees, Overlimit Fees, Returned Check
Fees, Annual Membership Fees and Cash Advance Fees, including all ancillary
fee income received by the Servicer in respect of the Accounts.
"MasterCard" shall mean MasterCard International Incorporated,
and its successors in interest.
"Monthly Period" shall mean, with respect to each Distribution
Date, unless otherwise provided in a Supplement, the period from and
including the first day of the preceding calendar month to and including
the last day of such calendar month; provided, however, that unless
otherwise specified in the related Supplement, the initial Monthly Period
with respect to any Series will commence on the Closing Date with respect
to such Series.
"Monthly Servicing Fee" shall have the meaning specified in
Section 3.2.
"Moody's" shall mean Xxxxx'x Investors Service, Inc., or its
successor.
"New Account" shall mean each MasterCard and VISA consumer
revolving credit card account established pursuant to a Credit Card
Agreement, which account is designated pursuant to subsection 2.9(d) to be
included as an Account and is identified in the computer file or microfiche
list delivered to the Trustee by the Transferor pursuant to Section 2.1 and
subsection 2.9(h).
"Notices" shall have the meaning specified in subsection 13.5(a).
"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, but excluding any merchant.
"Officer's Certificate" shall mean, unless otherwise specified in
this Agreement, a certificate delivered to the Trustee signed by the
President, any Vice President or the Treasurer of the Transferor or the
Servicer, as the case may be, or by the President, any Vice President or
the financial controller (or an officer holding an office with equivalent
or more senior responsibilities or, in the case of the Servicer, a
Servicing Officer, and, in the case of the Transferor, any executive of the
Transferor designated in writing by a Vice President or more senior officer
of the Transferor for this purpose) of a Successor Servicer.
"Opinion of Counsel" shall mean a written opinion of counsel, who
may be counsel for, or an employee of, the Person providing the opinion and
who shall be reasonably acceptable to the Trustee.
"Overlimit Fees" shall have the meaning specified in the Credit
Card Agreement applicable to each Account for overlimit fees or similar
terms if such fees are provided for with respect to such Account.
"Participation Interest Supplement" shall mean a Supplement
entered into pursuant to subsection 2.9(a)(ii) or (b) in connection with
the conveyance of Participation Interests to the Trust.
"Participation Interests" shall have the meaning specified in
subsection 2.9(a)(ii).
"Paying Agent" shall mean any paying agent appointed pursuant to
Section 6.7 and shall initially be the Trustee; provided, that if the
Supplement for a Series so provides, a separate or additional Paying Agent
may be appointed with respect to such Series.
"Pay Out Event" shall mean, with respect to any Series, any Pay
Out Event specified in the related Supplement.
"Periodic Rate Finance Charges" shall have the meaning specified
in the Credit Card Agreement applicable to each Account for finance charges
(due to periodic rate) or any similar term.
"Person" shall mean any legal person, including any individual,
corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization,
governmental entity or other entity of similar nature.
"PFR" shall mean Partners First Receivables, LLC, a Delaware
limited liability company and a wholly owned subsidiary of Holdings.
"PFRF" shall mean Partners First Receivables Funding, LLC, a
Delaware limited liability company and a wholly owned subsidiary of PFR.
"Portfolio Yield" shall mean with respect to the Trust as a whole
and, with respect to any Monthly Period, the annualized percentage
equivalent of a fraction (a) the numerator of which is the aggregate of the
sum of the Series Allocable Finance Charge Collections for all Series
during the immediately preceding Monthly Period calculated on a cash basis,
after subtracting therefrom the Series Allocable Defaulted Amounts for all
Series with respect to such Monthly Period and (b) the denominator of which
is the total amount of Principal Receivables plus (without duplication) the
then outstanding principal amount of any Participation Interests conveyed
to the Trust, plus the amount of funds on deposit in the Special Funding
Account, in each case, as of the last day of the immediately preceding
Monthly Period; provided that, with respect to any Monthly Period in which
an Aggregate Addition occurs or a removal of Accounts pursuant to Section
2.10 occurs, the amount of Principal Receivables and Participation
Interests referred to in clause (b) shall be the average amount of
Principal Receivables and Participation Interests in the Trust on each
Business Day during such Monthly Period based upon the assumptions that (1)
the aggregate amount of Principal Receivables in the Trust plus the then
outstanding principal amount of any Participation Interests conveyed to the
Trust at the end of the day on the last day of the prior Monthly Period is
the aggregate amount of Principal Receivables and Participation Interests
in the Trust on each Business Day of the period from and including the
first day of such Monthly Period to but excluding the related Addition Date
or Removal Date and (2) the aggregate amount of Principal Receivables in
the Trust plus the then outstanding principal amount of any Participation
Interests conveyed to the Trust at the end of the day on the related
Addition Date or Removal Date is the aggregate amount of Principal
Receivables and Participation Interests in the Trust on each Business Day
of the period from and including the related Addition Date or Removal Date
to and including the last day of such Monthly Period.
"Pre-Funding Account" shall mean, with respect to any Series, the
account, if any, specified in the related Supplement.
"Premium Option Date" shall mean each date on which a Premium
Percentage designated by the Transferor pursuant to Section 2.13 takes
effect.
"Premium Option Receivables" shall have the meaning specified in
Section 2.13. The aggregate amount of Premium Option Receivables
outstanding on any Date of Processing occurring on or after the Premium
Option Date shall equal the sum of (a) the aggregate Premium Option
Receivables at the end of the prior Date of Processing (which amount, prior
to the Premium Option Date, shall be zero) plus (b) any new Premium Option
Receivables created on such Date of Processing minus (c) any Premium Option
Receivables Collections received on such Date of Processing. Premium
Option Receivables created on any Date of Processing shall mean the product
of the amount of any Finance Charge Receivables created on such Date of
Processing and the Premium Percentage.
"Premium Option Receivable Collections" shall mean on any Date of
Processing occurring in any Monthly Period succeeding the Monthly Period in
which the Premium Option Date occurs, the product of (a) a fraction the
numerator of which is the Premium Option Receivables and the denominator of
which is the sum of the Finance Charge Receivables and the Premium Option
Receivables in each case (for both the numerator and the denominator) at
the end of the preceding Monthly Period and (b) Collections of Finance
Charge Receivables on such Date of Processing.
"Premium Percentage" shall mean the percentages, if any,
designated by the Transferor pursuant to Section 2.13.
"Principal Allocation Percentage" shall mean, with respect to any
Series, the percentage specified in the related Supplement.
"Principal Funding Account" shall mean, with respect to any
Series, the account, if any, specified in the related Supplement.
"Principal Receivables" shall mean all Receivables other than
Finance Charge Receivables or Defaulted Receivables. Principal
Receivables shall include the principal portion of Participation Interests
as shall be determined pursuant to, and only if so provided in, the
applicable Participation Interest Supplement or Series Supplement.
Collections of Principal Receivables also shall include the aggregate
Recoveries with respect to each Monthly Period not in excess of the
aggregate amount of Principal Receivables (other than Ineligible
Receivables) which became Defaulted Receivables during such Monthly
Period. 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 the Transferor is unable to transfer as
provided in Section 2.11 shall not be included in calculating the amount of
Principal Receivables.
"Principal Sharing Series" shall mean a Series that, pursuant to
the Supplement therefor, is entitled to receive Shared Principal
Collections.
"Principal Shortfalls" shall have the meaning specified in
Section 4.4.
"Principal Terms" shall mean, with respect to any Series, (i) the
name or designation; (ii) the initial principal amount (or method for
calculating such amount), the Invested Amount, the Series Invested Amount
and the Required Series Transferor Amount, (iii) the Certificate Rate (or
method for the determination thereof); (iv) the payment date or dates and
the date or dates from which interest shall accrue; (v) the method for
allocating Collections to Investor Certificateholders; (vi) the designation
of any Series Accounts and the terms governing the operation of any such
Series Accounts; (vii) the Servicing Fee; (viii) the terms of any form of
Series Enhancements with respect thereto; (ix) the terms on which the
Investor Certificates of such Series may be exchanged for Investor
Certificates of another Series, repurchased by the Transferor or remarketed
to other investors; (x) the Series Termination Date; (xi) the number of
Classes of Investor Certificates of such Series and, if more than one
Class, the rights and priorities of each such Class; (xii) the extent to
which the Investor Certificates of such Series will be issuable in
temporary or permanent global form (and, in such case, the depositary for
such global certificate or certificates, the terms and conditions, if any,
upon which such global certificate may be exchanged, in whole or in part,
for Definitive Certificates, and the manner in which any interest payable
on a temporary or global certificate will be paid); (xiii) whether the
Investor Certificates of such Series may be issued in bearer form and any
limitations imposed thereon; (xiv) the priority of such Series with respect
to any other Series; (xv) whether such Series will be part of a Group;
(xvi) whether such Series will be a Principal Sharing Series, (xvii)
whether such Series will be an Excess Allocation Series, (xviii) the
Distribution Date for such Series, and (xix) any other terms of such
Series.
"Rating Agency" shall mean, with respect to any outstanding
Series or Class, each rating agency, as specified in the applicable
Supplement, selected by the Transferor to rate the Investor Certificates of
such Series or Class.
"Rating Agency Condition" shall mean, with respect to any action,
that the Rating Agency shall have notified the Transferor, the Servicer and
the Trustee in writing that such action will not result in a reduction or
withdrawal of the then existing rating of any outstanding Series or Class
with respect to which it is a Rating Agency.
"Ratings Event" with respect to any Class of any outstanding
Series of Investor Certificates rated by a Rating Agency, shall mean a
reduction or withdrawal of the rating of any such Class by a Rating Agency.
"Reassignment" shall have the meaning specified in Section 2.10.
"Receivables" shall mean all amounts shown on the Servicer's
records as amounts payable by Obligors on any Account from time to time,
including amounts owing for purchases of goods and services, cash advances
and Finance Charge Receivables. Receivables which become Defaulted
Receivables will cease to be included as Receivables as of the day on which
they become Defaulted Receivables. A Receivable shall be deemed to have
been created at the end of the Date of Processing of such Receivable.
"Receivables Purchase Agreement" shall mean, as applicable, (i)
the receivables purchase agreement between PFR and the Transferor, dated as
of January 29, 1998, as amended from time to time in accordance with the
terms thereof, (ii) any Account Owner Purchase Agreement, (iii) any
Account Originator Receivables Purchase Agreement, or (iv) any receivables
purchase agreement entered into by the Transferor and an Account Owner in
the future; provided, that (A) the Rating Agency Condition is satisfied
with respect to such receivables purchase agreement and (B) the Transferor
shall have delivered to the Trustee an Officer's Certificate to the effect
that such officer reasonably believes that the execution and delivery of
such receivables purchase agreement will not have an Adverse Effect.
"Record Date" shall mean, with respect to any Distribution Date,
the last day of the calendar month immediately preceding such Distribution
Date unless otherwise specified for a Series in the applicable Supplement.
"Recoveries" shall mean all amounts received (net of out-of-
pocket costs of collection) including Insurance Proceeds, with respect to
Defaulted Receivables, including the net proceeds of any sale of such
Defaulted Receivables by the Transferor.
"Registered Certificateholder" shall mean the Holder of a
Registered Certificate.
"Registered Certificates" shall have the meaning specified in
Section 6.1.
"Reinvestment Event" shall mean, if applicable with respect to
any Series, any Reinvestment Event specified in the related Supplement.
"Related Account" shall mean an Account with respect to which a
new credit account number has been issued by the applicable Account Owner
or Servicer or the Transferor under circumstances resulting from a lost or
stolen credit card and not requiring standard application and credit
evaluation procedures under the Credit Card Guidelines.
"Relevant UCC State" shall mean each jurisdiction in which the
filing of a UCC financing statement is necessary to evidence the security
interest of the Trustee established under this Agreement.
"Removal Date" shall have the meaning specified in Section 2.10.
"Removed Accounts" shall have the meaning specified in Section
2.10.
"Removed Participation Interests" shall have the meaning
specified in Section 2.10.
"Required Designation Date" shall have the meaning specified in
subsection 2.9(a).
"Required Minimum Principal Balance" shall mean, with respect to
any date, (a) the sum of the numerators used in the Principal Allocation
Percentage for each Series outstanding on such date minus (b) the Special
Funding Amount minus (c) the amount on deposit in the Principal Funding
Account for each Series outstanding on such date minus (d) the amount on
deposit in the Pre-Funding Account for each Series outstanding on such
date.
"Required Transferor Amount" shall mean, with respect to any
date, the sum of the Series Required Transferor Amounts for all Series
outstanding on such date.
"Requirements of Law" shall mean any law, treaty, rule or
regulation, or determination of an arbitrator or Governmental Authority,
whether Federal, state or local (including usury laws, the Federal Truth in
Lending Act and Regulation B and Regulation Z of the Board of Governors of
the Federal Reserve System), and, when used with respect to any Person, the
certificate of formation, certificate of incorporation and by-laws or other
organizational or governing documents of such Person.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the Corporate Trust Office of the Trustee
including any vice president, assistant vice president, assistant
treasurer, assistant secretary, trust officer or any other officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers or to whom any corporate
trust matter is referred at the Corporate Trust Office because of such
officer's knowledge of and familiarity with the particular subject.
"Restart Date" shall mean the date specified in the notice
delivered by the Transferor to the Trustee pursuant to Section 2.9(h)
hereof.
"Returned Check Fees" shall have the meaning specified in the
Credit Card Agreement applicable to each Account for fees for returned
checks or similar terms.
"Revolving Period" shall mean, with respect to any Series, the
period specified in the related Supplement.
"Series" shall mean any series of Investor Certificates issued
pursuant to Section 6.3.
"Series Account" shall mean any deposit, trust, escrow or similar
account maintained for the benefit of the Investor Certificateholders of
any Series or Class, as specified in any Supplement.
"Series Adjusted Invested Amount" shall mean, with respect to any
Series and for any Monthly Period, the Series Invested Amount of such
Series, after subtracting therefrom the excess, if any, of the cumulative
amount (calculated in accordance with the terms of the related Supplement)
of investor charge-offs, subordination of principal collections and funding
the investor default amount or another Series allocable to the Invested
Amount for such Series as of the last day of the immediately preceding
Monthly Period over the aggregate reimbursement of such investor charge-
offs, subordination of principal collections and funding the investor
default amount for any other Class of Investor Certificates of such Series
or another Series as of such last day, or such lesser amount as may be
provided in the Series Supplement for such Series.
"Series Allocable Defaulted Amount" shall mean, with respect to
any Series and for any Monthly Period, the product of the Series Allocation
Percentage and the Defaulted Amount with respect to such Monthly Period.
"Series Allocable Finance Charge Collections" shall mean, with
respect to any Series and for any Monthly Period, the product of the Series
Allocation Percentage and the amount of Collections of Finance Charge
Receivables deposited in the Collection Account for such Monthly Period.
"Series Allocable Principal Collections" shall mean, with respect
to any Series and for any Monthly Period, the product of the Series
Allocation Percentage and the amount of Collections of Principal
Receivables deposited in the Collection Account for such Monthly Period.
"Series Allocation Percentage" shall mean, with respect to any
Series and for any Monthly Period, the percentage equivalent of a fraction,
the numerator of which is the Series Adjusted Invested Amount plus the
Series Required Transferor Amount as of the last day of the immediately
preceding Monthly Period and the denominator of which is the Trust Adjusted
Invested Amount plus the sum of all Series Required Transferor Amounts as
of such last day.
"Series Enhancement" shall mean the rights and benefits provided
to the Trust or the Investor Certificateholders of any Series or Class
pursuant to any letter of credit, surety bond, cash collateral account or
guaranty, collateral invested amount, spread account, yield supplement
account, guaranteed rate agreement, maturity liquidity facility, tax
protection agreement, notional principal contract, options, hedging
agreements, insurance policy 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" shall mean the Person or Persons providing any
Series Enhancement, other than (except to the extent otherwise provided
with respect to any Series in the Supplement for such Series) the Investor
Certificateholders of any Series or Class which is subordinated to another
Series or Class.
"Series Invested Amount" shall have, with respect to any Series,
the meaning specified in the related Supplement.
"Series Issuance Date" shall mean, with respect to any Series,
the date on which the Investor Certificates of such Series are to be
originally issued in accordance with Section 6.3 and the related
Supplement.
"Series Required Transferor Amount" shall have the meaning, with
respect to any Series, specified in the related Supplement.
"Series Termination Date" shall mean, with respect to any Series,
the termination date for such Series specified in the related Supplement.
"Service Transfer" shall have the meaning specified in Section
10.1.
"Servicer" shall mean Holdings, in its capacity as Servicer
pursuant to this Agreement, and, after any Service Transfer, the Successor
Servicer.
"Servicer Default" shall have the meaning specified in Section
10.1.
"Servicer Interchange" shall have the meaning specified in
Section 3.2.
"Servicing Fee" shall have the meaning specified in Section 3.2.
"Servicing Fee Rate" shall mean, with respect to any Series, the
servicing fee rate specified in the related Supplement.
"Servicing Officer" shall mean any officer of the Servicer or an
attorney-in-fact of the Servicer who in either case is involved in, or
responsible for, the administration and servicing of the Receivables and
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.
"Shared Principal Collections" shall have the meaning specified
in Section 4.4.
"Special Funding Account" shall have the meaning set forth in
Section 4.2.
"Special Funding Amount" shall mean the amount on deposit in the
Special Funding Account.
"Standard & Poor's" shall mean Standard & Poor's Ratings Group or
its successor.
"Successor Servicer" shall have the meaning specified in
subsection 10.2(a).
"Supplement" shall mean, with respect to any Series, a supplement
to this Agreement, executed and delivered in connection with the original
issuance of the Investor Certificates of such Series pursuant to Section
6.3, and, with respect to any Participation Interest, an amendment to this
Agreement executed pursuant to Section 13.1, and, in either case, including
all amendments thereof and supplements thereto.
"Supplemental Certificate" shall have the meaning specified in
subsection 6.3(b).
"Tax Opinion" shall mean, 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
Investor Certificates of any outstanding Series or Class that was
characterized as debt at the time of its issuance, (b) following such
action the Trust will not be deemed to be an association (or publicly
traded partnership) taxable as a corporation, (c) such action will not
cause or constitute an event in which gain or loss would be recognized by
any Investor Certificateholder and (d) except as is otherwise provided in a
Supplement, in the case of subsection 6.3(b)(vi), the Investor Certificates
of the Series or class thereof established pursuant to such Supplement will
be properly characterized as debt.
"Termination Notice" shall have the meaning specified in
subsection 10.1(d).
"Termination Proceeds" shall have the meaning specified in
subsection 12.2(c).
"Transfer Agent and Registrar" shall have the meaning specified
in Section 6.4.
"Transfer Date" shall mean the Business Day immediately preceding
each Distribution Date.
"Transfer Restriction Event" shall have the meaning specified in
Section 2.11.
"Transferor" shall mean Partners First Receivables Funding, LLC,
a Delaware limited liability company and a wholly owned special purpose
subsidiary of PFR or its successor under this Agreement.
"Transferor LLC Agreement" shall mean the Limited Liability
Company Agreement of PFRF, dated as of January 26, 1998.
"Transferor Amount" shall mean on any date of determination an
amount equal to the difference between (I) the sum of (A) the aggregate
balance of Principal Receivables at the end of the day immediately prior to
such date of determination and (B) Special Funding Amount at the end of the
day immediately prior to such date of determination and (C) the aggregate
principal amounts on deposit in the Principal Funding Account and Pre-
Funding Account for each Series minus (II) the Aggregate Invested Amount at
the end of such day.
"Transferor Certificate" shall mean the certificate executed by
Partners First Receivables Funding, LLC and authenticated by or on behalf
of the Trustee, substantially in the form of Exhibit A, as the same may be
modified in accordance with Exhibit A.
"Transferor Certificates" shall mean, collectively, the
Transferor Certificate and any outstanding Supplemental Certificates.
"Transferor Percentage" shall have, with respect to each Series,
the meaning specified in the related Supplement
"Transferor's Interest" shall have the meaning specified in
Section 4.1.
"Transferred Account" shall mean each account into which an
Account shall be transferred provided that (i) such transfer was made in
accordance with the Credit Card Guidelines and (ii) such account can be
traced or identified as an account into which an Account has been
transferred.
"Trust" shall mean the Partners First Credit Card Master Trust
created by this Agreement.
"Trust Adjusted Invested Amount" shall mean, with respect to any
Monthly Period, the aggregate Series Adjusted Invested Amounts as adjusted
in any Supplement for all outstanding Series for such Monthly Period.
"Trust Assets" shall have the meaning specified in Section 2.1.
"Trustee" shall mean The Bank of New York, a New York banking
corporation, in its capacity as trustee on behalf of the Trust, or its
successor in interest, or any successor trustee appointed as herein
provided.
"Supplemental Certificate Supplement" shall have the meaning
specified in subsection 6.3(b).
"UCC" shall mean the Uniform Commercial Code, as amended from
time to time, as in effect in any specified jurisdiction.
"VISA" shall mean VISA USA, Inc., and its successors in interest.
Section 2.1 Other Definitional Provisions.
(a) With respect to any Series, all terms used herein and not
otherwise defined herein shall have meanings ascribed to them in the
related Supplement.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles or regulatory accounting principles, as applicable and as in
effect on the date of this Agreement. To the extent that the definitions
of accounting terms in this Agreement or in any such certificate or other
document are inconsistent with the meanings of such terms under generally
accepted accounting principles or regulatory accounting principles in the
United States, the definitions contained in this Agreement or in any such
certificate or other document shall control.
(d) The agreements, representations and warranties of PFRF and
Holdings in this Agreement in each of their respective capacities as
Transferor and Servicer shall be deemed to be the agreements,
representations and warranties of PFRF and Holdings solely in each such
capacity for so long as PFRF and Holdings act in each such capacity under
this Agreement.
(e) Any reference to the Rating Agency shall only apply to any
specific rating agency if such rating agency is then rating any outstanding
Series.
(f) Unless otherwise specified, references to any amount as on
deposit or outstanding on any particular date shall mean such amount at the
close of business on such day.
(g) 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; references
to any subsection, Section, Schedule or Exhibit are references to
subsections, Sections, Schedules and Exhibits in or to this Agreement
unless otherwise specified; and the term "including" means "including
without limitation."
[END OF ARTICLE I]
ARTICLE II
CONVEYANCE OF RECEIVABLES
Section 2.1 Conveyance of Receivables. By execution of this
Agreement, PFRF does hereby transfer, assign, set over, and otherwise
convey to the Trustee, on behalf of the Trust, for the benefit of the
Certificateholders, without recourse except as provided herein, all its
right, title and interest in, to and under (i) the Receivables existing at
the close of business on the Initial Issuance Date, in the case of
Receivables arising in the Initial Accounts, and on each Additional Cut-Off
Date, in the case of Receivables arising in the Additional Accounts, and in
each case thereafter created from time to time until the termination of the
Trust, all Interchange and Recoveries allocable to the Trust as provided
herein, all monies due or to become due and all amounts received with
respect thereto and all proceeds (including "proceeds" as defined in the
UCC) thereof and (ii) each Receivables Purchase Agreement. Such property,
together with the Collection Account, the Series Accounts and the Special
Funding Account and all monies on deposit in any such account, the rights
of the Trustee on behalf of the Trust under this Agreement and any
Supplement, the property conveyed to the Trustee on behalf of the Trust
under any Participation Interest Supplement, any Series Enhancement and the
right to receive Recoveries shall constitute the assets of the Trust (the
"Trust Assets"). The foregoing does not constitute and is not intended to
result in the creation or assumption by the Trust, the Trustee, any
Investor Certificateholder or any Series Enhancer of any obligation of any
Account Owner or the Transferor, 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 clearance systems, VISA, MasterCard or insurers. The
Obligors shall not be notified in connection with the creation of the Trust
of the transfer, assignment, set-over and conveyance of the Receivables to
the Trust. The foregoing transfer, assignment, set-over and conveyance to
the Trust shall be made to the Trustee, on behalf of the Trust, and each
reference in this Agreement to such transfer, assignment, set-over and
conveyance shall be construed accordingly.
The Transferor agrees to record and file, at its own expense,
financing statements (and continuation statements when applicable) with
respect to the Receivables conveyed by the Transferor now existing and
hereafter created meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect, and maintain
the perfection of, the transfer and assignment of its interest in such
Receivables to the Trust, and to deliver a file stamped copy of each such
financing statement or other evidence of such filing to the Trustee as soon
as practicable after the first Closing Date, in the case of Receivables
arising in the Initial Accounts, and (if any additional filing is so
necessary) as soon as practicable after the applicable Addition Date, in
the case of Receivables arising in Additional Accounts. The Trustee shall
be under no obligation whatsoever to file such financing or continuation
statements or to make any other filing under the UCC in connection with
such transfer and assignment.
The Transferor further agrees, at its own expense, (a) on or
prior to (x) the first Closing Date, in the case of the Initial Accounts,
(y) the applicable Addition Date, in the case of Additional Accounts, and
(z) the applicable Removal Date, in the case of Removed Accounts, 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 Trust pursuant to this Agreement for the
benefit of the Certificateholders (or conveyed to the Transferor or its
designee in accordance with Section 2.10, in the case of Removed Accounts)
by including (or deleting in the case of Removed Accounts) in such computer
files the code identifying each such Account and (b) on or prior to (w) the
first Closing Date, in the case of the Initial Accounts, (x) the date that
is five Business Days after the applicable Addition Date, in the case of
Aggregate Additions, (y) the date that is 30 days after the applicable
Addition Date, in the case of New Accounts, and (z) the date that is five
Business Days after the applicable Removal Date, in the case of Removed
Accounts, to deliver, or cause to be delivered, to the Trustee, a copy of
the computer file or microfiche list delivered to the Transferor pursuant
to the related Receivables Purchase Agreement, containing a true and
complete list of all such Accounts specifying for each such Account, as of
the Initial Issuance Date, in the case of the Initial Accounts, the
applicable Additional Cut-Off Date in the case of Additional Accounts, and
the applicable Removal Date in the case of Removed Accounts, its account
number and, other than in the case of New Accounts, 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. The Transferor
further agrees not to alter the code referenced in this paragraph with
respect to any Account during the term of this Agreement unless and until
such Account becomes a Removed Account.
The Transferor hereby grants and transfers to the Trust, for the
benefit of the Certificateholders, a security interest in all of the
Transferor's right, title and interest in, to and under the Receivables and
all other Trust Assets, to secure a loan in an amount equal to the unpaid
principal amount of the Investor Certificates issued hereunder or to be
issued pursuant to this Agreement and the interest accrued at the related
Certificate Rate, and agrees that this Agreement shall constitute a
security agreement under applicable law.
Section 2.2 Acceptance by Trustee.
(a) The Trustee hereby acknowledges its acceptance on behalf of
the Trust of all right, title and interest to the property, now existing
and hereafter created, conveyed to the Trust pursuant to 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 simultaneously with the
execution and delivery of this Agreement, the Transferor delivered to the
Trustee the computer file or microfiche list relating to the Initial
Accounts described in the penultimate paragraph of Section 2.1. The
Trustee shall maintain a copy of Schedule 1, as delivered from time to
time, at the Corporate Trust Office.
(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 marked as Schedule 1 and delivered to the Trustee, from
time to time, except (i) to a Successor Servicer or as required by a
Requirement of Law applicable to the Trustee, (ii) in connection with the
performance of the Trustee's duties hereunder, (iii) in enforcing the
rights of Certificateholders or (iv) to bona fide creditors or potential
creditors of any Account Originator, Account Owner, PFR or the Transferor
for the limited purpose of enabling any such creditor to identify
Receivables or Accounts subject to this Agreement or any Receivables
Purchase Agreement. The Trustee agrees to take such measures as shall be
reasonably requested by the Transferor to protect and maintain the security
and confidentiality of such information and, in connection therewith, shall
allow the Transferor or its duly authorized representatives to inspect the
Trustee's security and confidentiality arrangements as they specifically
relate to the administration of the Trust from time to time during normal
business hours upon prior written notice. The Trustee shall provide the
Transferor with notice five Business Days prior to disclosure of any
information of the type described in 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.
Section 2.3 Representations and Warranties of the Transferor.
The Transferor hereby severally represents and warrants to the Trustee (and
agrees that the Trustee may conclusively rely on each such representation
and warranty in accepting the Receivables in trust and in authenticating
the Certificates) that:
(a) Organization and Good Standing. The Transferor is a limited
liability company validly existing under the laws of the jurisdiction of
its organization and has, in all material respects, full power and
authority to own its properties and conduct its business as presently owned
or conducted, and to execute, deliver and perform its obligations under
this Agreement, each Receivables Purchase Agreement and each applicable
Supplement and to execute and deliver to the Trustee the Certificates.
(b) Due Qualification. The Transferor is duly qualified to do
business and is in good standing as a foreign limited liability company and
has obtained all necessary licenses and approvals, in each jurisdiction in
which failure to so qualify or to obtain such licenses and approvals would
(i) render any Credit Card Agreement relating to an Account or any
Receivable conveyed to the Trust by the Transferor unenforceable by the
Transferor or the Trust or (ii) have a material adverse effect on the
Investor Certificateholders.
(c) Due Authorization. The execution and delivery of this
Agreement, each Receivables Purchase Agreement and each Supplement by the
Transferor and the execution and delivery to the Trustee of the
Certificates and the consummation by the Transferor of the transactions
provided for in this Agreement, each Receivables Purchase Agreement and
each Supplement have been duly authorized by the Transferor by all
necessary corporate action on the part of the Transferor.
(d) No Conflict. The execution and delivery by the Transferor
of this Agreement, each Receivables Purchase Agreement, each Supplement,
and the Certificates, the performance of the transactions contemplated by
this Agreement, each Receivables Purchase Agreement and each Supplement and
the fulfillment of the terms hereof and thereof applicable to the
Transferor, will not conflict with or violate any Requirements of Law
applicable to the Transferor 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 Transferor is a party or by which it or its properties are bound.
(e) No Proceedings. There are no proceedings or investigations,
pending or, to the best knowledge of the Transferor, threatened against the
Transferor before any Governmental Authority (i) asserting the invalidity
of this Agreement, each Receivables Purchase Agreement, each Supplement or
the Certificates, (ii) seeking to prevent the issuance of any of the
Certificates or the consummation of any of the transactions contemplated by
this Agreement, each Receivables Purchase Agreement, each Supplement or the
Certificates, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Transferor, would materially and adversely
affect the performance by the Transferor of its obligations under this
Agreement, each Receivables Purchase Agreement or each Supplement, (iv)
seeking any determination or ruling that would materially and adversely
affect the validity or enforceability of this Agreement, each Receivables
Purchase Agreement, each Supplement or the Certificates or (v) seeking to
affect adversely the income or franchise tax attributes of the Trust under
the United States Federal or any State income or franchise tax systems.
(f) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the Transferor in
connection with the execution and delivery by the Transferor of this
Agreement, each Receivables Purchase Agreement, each Supplement and the
Certificates and the performance of the transactions contemplated by this
Agreement and each Supplement by the Transferor have been duly obtained,
effected or given and are in full force and effect.
Section 2.4 Representations and Warranties of the Transferor
Relating to the Agreement and Any Supplement and the Receivables.
(a) Representations and Warranties. The Transferor hereby
severally represents and warrants to the Trustee as of the Initial Issuance
Date, each Closing Date and, with respect to Additional Accounts, as of the
related Addition Date that:
(i) this Agreement, each Receivables Purchase Agreement, each
Supplement and, in the case of Additional Accounts, the related
Assignment, each 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
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally from time to time in effect
or general principles of equity;
(ii) as of the Initial Issuance Date and as of the related
Additional Cut-Off Date with respect to Additional Accounts, Schedule
1 to this Agreement, as supplemented to such date, is an accurate and
complete listing in all material respects of all the Accounts the
Receivables in which were transferred by the Transferor as of the
Initial Issuance Date or such Additional Cut-Off Date, as the case may
be, 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 Initial Issuance Date or
such Additional Cut-Off Date, as the case may be;
(iii) each Receivable conveyed to the Trust by the Transferor
has been conveyed to the Trust free and clear of any Lien of any
Person claiming through or under the Transferor or any of its
Affiliates (other than Liens permitted under subsection 2.7(b)).
(iv) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required
to be obtained, effected or given by the Transferor in connection with
the conveyance by the Transferor of Receivables to the Trust have been
duly obtained, effected or given and are in full force and effect;
(v) either this Agreement or, in the case of Additional
Accounts, the related Assignment constitutes a valid sale, transfer
and assignment to the Trust of all right, title and interest of the
Transferor in the Receivables conveyed to the Trust and the proceeds
thereof and Recoveries and Interchange identified as relating to the
Receivables conveyed to the Trust or a grant of a first priority
perfected "security interest" (as defined in the UCC) in such property
to the Trust, which, in the case of existing Receivables and the
proceeds thereof and said Recoveries and Interchange, is enforceable
upon execution and delivery of this Agreement, or, with respect to
then existing Receivables in Additional Accounts, as of the applicable
Addition Date, and which will be enforceable with respect to such
Receivables hereafter and thereafter created and the proceeds thereof
upon such creation. Upon the filing of the financing statements and,
in the case of Receivables hereafter created and the proceeds thereof,
upon the creation thereof, the Trust shall have a first priority
perfected security or ownership interest in such property and
proceeds;
(vi) on the Initial Issuance Date, each Initial Account
specified in Schedule 1 is an Eligible Account and, on the applicable
Additional Cut-Off Date, each related Additional Account specified in
Schedule 1 is an Eligible Account;
(vii) on the Initial Issuance Date, each Receivable then
existing and conveyed to the Trust is an Eligible Receivable and, on
the applicable Additional Cut-Off Date, each Receivable contained in
the related Additional Accounts and conveyed to the Trust is an
Eligible Receivable; and
(viii) as of the date of the creation of any new Receivable in
an Account specified in a Receivables Purchase Agreement, such
Receivable is an Eligible Receivable.
(b) Notice of Breach. The representations and warranties set
forth in Section 2.3, this Section 2.4 and subsection 2.9(f) shall survive
the transfers and assignments of the Receivables to the Trust and the
issuance of the Certificates. Upon discovery by the Transferor, the
Servicer or the Trustee of a breach of any of the representations and
warranties set forth in Section 2.3, this Section 2.4 or subsection 2.9(f),
the party discovering such breach shall give notice to the other parties
and to each Series Enhancer within three Business Days following such
discovery; provided that the failure to give notice within three Business
Days does not preclude subsequent notice.
Section 2.5 Reassignment of Ineligible Receivables.
(a) Reassignment of Receivables. In the event (i) any
representation or warranty contained in subsection 2.4(a)(ii), (iii), (iv),
(vi), (vii) or (viii) is not true and correct in any material respect as of
the date specified therein with respect to any Receivable or the related
Account and such breach has a material adverse effect on the
Certificateholders' Interest in any Receivable (which determination shall
be made without regard to whether funds are then available pursuant to any
Series Enhancement) unless cured within 60 days (or such longer period, not
in excess of 120 days, as may be agreed to by the Trustee and the Servicer)
after the earlier to occur of the discovery thereof by the Transferor which
conveyed such Receivables to the Trust or receipt by the Transferor of
written notice thereof given by the Trustee or the Servicer, or (ii) it is
so provided in subsection 2.7(a) or 2.9(d)(iii) with respect to any
Receivables conveyed to the Trust by the Transferor, then the Transferor
shall accept reassignment of the Certificateholders' Interest in all
Receivables in the related Account ("Ineligible Receivables") on the terms
and conditions set forth in paragraph (b) below.
(b) Price of Reassignment. The Servicer shall deduct the
portion of such Ineligible Receivables reassigned to the Transferor which
are Principal Receivables from the aggregate amount of the Principal
Receivables used to calculate the Transferor Amount. In the event that,
following the exclusion of such Principal Receivables from the calculation
of the Transferor Amount, the Transferor Amount would be less than the
Required Transferor Amount, not later than 1:00 P.M., New York City time,
on the first Distribution Date following the Monthly Period in which such
reassignment obligation arises, the Transferor shall make a deposit into
the Special Funding Account in immediately available funds in an amount
equal to the amount by which the Transferor Amount would be below the
Required Transferor Amount (up to the amount of such Principal
Receivables).
Upon reassignment of any Ineligible Receivable, the Trustee, on
behalf of the Trust, shall automatically and without further action be
deemed to transfer, assign, set over and otherwise convey to the Transferor
or its designee, without recourse, representation or warranty, all the
right, title and interest of the Trust in and to such Ineligible
Receivable, all monies due or to become due and all proceeds thereof and
such reassigned Ineligible Receivable shall be treated by the Trust as
collected in full as of the date on which it was transferred. The
obligation of the Transferor to accept reassignment of any Ineligible
Receivables conveyed to the Trust by the Transferor, and to make the
deposits, if any, required to be made to the Special Funding Account as
provided in this Section, shall constitute the sole remedy respecting the
event giving rise to such obligation available to Certificateholders (or
the Trustee on behalf of the Certificateholders) or any Series Enhancer.
Notwithstanding any other provision of this subsection 2.5(b), a
reassignment of an Ineligible Receivable in excess of the amount that would
cause the Transferor Amount to be less than the Required Transferor Amount
shall not occur if the Transferor fails to make any deposit required by
this subsection 2.5(b) with respect to such Ineligible Receivable. The
Trustee shall execute such documents and instruments of transfer or
assignment and take such other actions as shall reasonably be requested and
provided by the Transferor to effect the conveyance of such Ineligible
Receivables pursuant to this subsection 2.5(b), but only upon receipt of an
Officer's Certificate from the Transferor that states that all conditions
set forth in this Section 2.5 have been satisfied.
Section 2.6 Reassignment of Certificateholders' Interest in
Trust Portfolio. In the event any representation or warranty of the
Transferor set forth in subsection 2.3(a) or (c) or subsection 2.4(a)(i) or
(v) is not true and correct in any material respect and such breach has a
material adverse effect on the Certificateholders' Interest in Receivables
conveyed to the Trust by the Transferor or the availability of the proceeds
thereof to the Trust (which determination shall be made without regard to
whether funds are then available pursuant to any Series Enhancement), then
either the Trustee or the Holders of Investor Certificates evidencing not
less than 50% of the aggregate unpaid principal amount of all outstanding
Investor Certificates, by notice then given to the Transferor and the
Servicer (and to the Trustee if given by the Investor Certificateholders),
may direct the Transferor to accept a reassignment of the
Certificateholders' Interest in the Receivables and any Participation
Interests conveyed to the Trust by the Transferor if such breach and any
material adverse effect caused by such breach is not cured within 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 the Transferor
shall be obligated to accept such reassignment on the terms set forth
below; provided, however, that such Receivables will not be reassigned to
the Transferor if, on any day prior to the end of such 60-day or longer
period (i) the relevant representation and warranty shall be true and
correct in all material respects as if made on such day and (ii) the
Transferor shall have delivered to the 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.
The Transferor shall deposit in the Collection Account in
immediately available funds not later than 1:00 P.M., New York City time,
on the first Transfer Date following the Monthly Period in which such
reassignment obligation arises, in payment for such reassignment, an amount
equal to the sum of the amounts specified therefor with respect to each
outstanding Series in the related Supplement. Notwithstanding anything to
the contrary in this Agreement, such amounts shall be distributed to the
Investor Certificateholders on such Distribution Date in accordance with
the terms of each Supplement. If the Trustee or the Investor
Certificateholders give notice directing the Transferor to accept a
reassignment of the Certificateholders' Interest in the Receivables as
provided above, the obligation of the Transferor to accept such
reassignment pursuant to this Section 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 available to the Certificateholders (or the
Trustee on behalf of the Certificateholders) or any Series Enhancer.
Section 2.7 Covenants of the Transferor. The Transferor hereby
covenants that:
(a) Receivables Not To Be Evidenced by Promissory Notes. Except
in connection with its enforcement or collection of an Account, the
Transferor will take no action to cause any Receivable conveyed by it to
the Trust to be evidenced by any instrument (as defined in the UCC) and if
any such Receivable (or any underlying receivable) is so evidenced as a
result of any action of the Transferor it shall be deemed to be an
Ineligible Receivable in accordance with Section 2.5(a) and shall be
reassigned to the Transferor in accordance with Section 2.5(b).
(b) Security Interests. Except for the conveyances hereunder,
the Transferor 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 or Participation Interest conveyed by it to the Trust, whether
now existing or hereafter created, or any interest therein, and the
Transferor shall defend the right, title and interest of the Trust in, to
and under the Receivables and any Participation Interest, whether now
existing or hereafter created, against all claims of third parties claiming
through or under the Transferor; provided, however, that nothing in this
Section 2.7(b) shall prevent or be deemed to prohibit the Transferor from
suffering to exist upon any of the Receivables or Participation Interests
any Liens for taxes if such taxes shall not at the time be due and payable
or if the Transferor 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. Notwithstanding the foregoing,
nothing in this Section 2.7(b) shall be construed to prevent or be deemed
to prohibit the transfer of the Transferor Certificate and certain other
rights of the Transferor in accordance with the terms of this Agreement and
any related Supplement.
(c) Transferor's Interest. Except for the conveyances
hereunder, in connection with any transaction permitted by Section 7.2 and
Section 6.3 or any other transaction in connection with which the Rating
Agency Condition has been satisfied and the Transferor has delivered to the
Trustee a Tax Opinion, the Transferor agrees not to transfer, sell, assign,
exchange, participate or pledge, hypothecate or otherwise convey or grant a
security interest in the Transferor's Interest represented by the
Transferor Certificate and any such attempted transfer, assignment,
exchange, conveyance, pledge, hypothecation, grant or sale shall be void.
(d) Delivery of Collections or Recoveries. In the event that
the Transferor receives Collections or Recoveries, the Transferor agrees to
pay the Servicer all such Collections and Recoveries as soon as practicable
after receipt thereof.
(e) Notice of Liens. The Transferor shall notify the Trustee and
each Series Enhancer promptly after becoming aware of any Lien on any
Receivable (or on the underlying receivable) or Participation Interest
conveyed by it to the Trust other than the conveyances hereunder and under
each Receivables Purchase Agreement.
(f) Amendment of the Certificate of Formation. The Transferor
will not amend in any material respect the Transferor LLC Agreement or its
certificate of formation without providing the Rating Agency with notice no
later than the fifth Business Day prior to such amendment (unless the right
to such notice is waived by the Rating Agency) and satisfying the Rating
Agency Condition.
(g) Other Indebtedness. The Transferor shall not incur any
additional debt, unless the Rating Agency is provided with notice no later
than the fifth Business Day prior to the incurrence of such additional debt
(unless the right to such notice is waived by the Rating Agency) and the
Rating Agency Condition is satisfied with respect to the incurrence of such
debt.
(h) Separate Corporate Existence. The Transferor shall:
(i) maintain its corporate existence and remain in good standing
under the laws of the State of Delaware;
(ii) observe all procedures required by its certificate of
formation, the Transferor LLC Agreement and the laws of the State of
Delaware;
(iii) ensure that (x) the business and affairs of the Transferor
are at all times managed by or under the direction of its Board of
Directors, (y) its Board of Directors shall have duly authorized all
corporate actions requiring such authorization and, (z) when
necessary, the Transferor shall have obtained proper authorization for
corporate action from its stockholder;
(iv) at all times includes at least two Independent Managers (as
such term is defined in the Transferor LLC Agreement);
(v) maintain separate corporate records and books of account
from those of any Affiliate and keep correct and complete books and
records of account and minutes of the meetings and other proceedings
of its stockholder and Board of Directors;
(vi) pay the fair market rent for any office space located in
the office of any Affiliate and a fair share of any overhead costs;
(vii) maintain separate bank accounts and books of account from
those of its Affiliates and ensure that its funds and other assets
shall at all times be readily distinguishable from the funds and other
assets of its Affiliates and not be commingled with the funds or other
assets of its Affiliates;
(viii) pay from its own separate funds all material liabilities
incurred by it, including material operating and administrative
expenses; provided that the organizational expenses of the Transferor
and expenses relating to the preparation, negotiation, execution and
delivery of the documentation with respect to the issuance of the
Certificates or notes that it may issue from time to time may be paid
by an Affiliate. No general overhead or administrative expenses of
any Affiliate shall be charged or otherwise allocated to the
Transferor unless such general overhead or administrative expenses are
directly attributable to services provided to or for the account of
the Transferor.
(ix) conduct its business solely in its own name so as not to
mislead others as to its identity or the identity of any Affiliate.
All oral and written communications of the Transferor, including
without limitation letters, invoices, purchase orders, contracts,
statements, and applications shall be made solely in the name of the
Transferor;
(x) not make any guaranty with respect to the obligations of any
Affiliate and no Affiliate shall make any guaranty with respect to the
obligations of the Transferor;
(xi) ensure that there will be no intercompany debt between the
Transferor and any Affiliate; provided, that the stockholder of the
Transferor may contribute capital to the Transferor in such amounts as
are necessary to assure that such Transfer has adequate capital for
its business and the Transferor may issue subordinated notes in the
amount and manner specified in the Receivables Purchase Agreement;
(xii) act solely in its own name and through its duly authorized
officers or agents in the conduct of its business and at all times
maintain an arm's length relationship with its Affiliates. The
Transferor shall not: (v) hold itself out as having agreed to pay or
become liable for the debts of any Affiliate; (w) fail to correct any
known misrepresentation with respect to the Transferor's agreement to
pay or become liable for the debts of any Affiliate; (x) operate or
purport to operate as an integrated, single economic unit with any
Affiliate in its dealings with any other Person; (y) seek or obtain
credit or incur any obligation to any Person based upon the assets of
an Affiliate or unaffiliated entity; or (z) induce any Person
reasonably to rely on the creditworthiness of any Affiliate in its
dealings with the Transferor;
(xiii) disclose in any financial statements the effects of the
transactions contemplated herein and in each Receivables Purchase
Agreement in accordance with generally accepted accounting principles.
Such financial statements shall (x) clearly indicate the separate
existence of the Transferor and its Affiliates, (y) reflect the
Transferor's separate assets and liabilities and (z) record the
purchase of the Receivables pursuant to the applicable Receivables
Purchase Agreement as a purchase under generally accepted accounting
principles;
(xiv) on or before December 31 of each year, commencing December
31, 1998, deliver to the Rating Agency an Officer's Certificate
certifying that the Transferor has complied with all of the
requirements of the foregoing clauses (i) through (xiii) during the
preceding year, or in the case of the first such Officer's
Certificate, during the period commencing on the Initial Series
Issuance Date; provided, however, that the Transferor shall not be
required to deliver such Officer's Certificate with respect to any
year, if the Transferor shall otherwise have delivered to the Rating
Agency an Officer's Certificate to the same effect on or after June 30
of the applicable year.
(i) Interchange. With respect to any Distribution Date, on or
prior to the immediately preceding Determination Date, the Servicer shall
notify the Transferor of the amount of Interchange required to be included
as Collections of Finance Charge Receivables with respect to such Monthly
Period, which amount for any Series shall be specified in the related
Supplement. Not later than 1:00 p.m., New York City time, on the related
Transfer Date, the Transferor shall deposit into the Collection Account, in
immediately available funds, the amount of Interchange to be so included as
Collections of Finance Charge Receivables with respect to such Monthly
Period.
Section 2.8 Covenants of the Transferor with Respect to
Receivables Purchase Agreement. The Transferor, in its capacity as
purchaser of Receivables from PFR or an Account Owner pursuant to a
Receivables Purchase Agreement, hereby covenants that the Transferor will
at all times enforce the covenants and agreements of PFR, or such Account
Owner, as applicable, in such Receivables Purchase Agreement, including,
without limitation, the covenants to the effect set forth below:
(a) Periodic Rate Finance Charges. (i) Except (x) as otherwise
required by any Requirements of Law or (y) as is deemed by the related
Account Owner to be necessary in order for it to maintain its credit card
business or a program operated by such credit card business on a
competitive basis based on a good faith assessment by it of the nature of
the competition with respect to the credit card business or such program,
it shall not at any time take any action which would have the effect of
reducing the Portfolio Yield to a level that could be reasonably expected
to cause any Series to experience any Pay Out Event or Reinvestment Event
based on the insufficiency of the Portfolio Yield or any similar test and
(ii) except as otherwise required by any Requirements of Law, it shall not
take any action which would have the effect of reducing the Portfolio Yield
to less than the highest current Average Rate for any Group.
(b) Credit Card Agreements and Guidelines. Subject to
compliance with all Requirements of Law and paragraph (a) above any Account
Owner may change the terms and provisions of the applicable Credit Card
Agreements or the applicable Credit Card Guidelines in any respect
(including the calculation of the amount or the timing of charge-offs and
the Periodic Rate Finance Charges to be assessed thereon). Notwithstanding
the above, unless required by Requirements of Law or as permitted by
Section 2.8(a), no Account Owner will take any action with respect to the
applicable Credit Card Agreements or the applicable Credit Card Guidelines,
which, at the time of such action, the Account Owner reasonably believes
will have a material adverse effect on the Investor Certificateholders.
The Transferor further covenants that it will not enter into any
amendments to a Receivables Purchase Agreement or enter into a new
Receivables Purchase Agreement unless the Rating Agency Condition has been
satisfied.
Section 2.9 Addition of Accounts.
(a) Required Additional Accounts. (i) If, as of the close of
business on the last Business Day of any calendar month, (a) the total
amount of Principal Receivables is less than the Required Minimum Principal
Balance on such date or (b) the Transferor Amount is less than the Required
Transferor Amount on such date, the Transferor shall on or prior to the
close of business on the tenth Business Day of the next succeeding calendar
month (the "Required Designation Date"), cause to be designated additional
Eligible Accounts to be included as Accounts as of the Required Designation
Date or any earlier date in a sufficient amount (or such lesser amount as
shall represent all Eligible Accounts constituting VISA and MasterCard
consumer revolving credit card accounts then available to the Transferor
under the Receivables Purchase Agreements) such that, after giving effect
to such addition the aggregate principal balance of Principal Receivables,
conveyed to the Trust as of the close of business on the Addition Date is
at least equal to the Required Minimum Principal Balance on such date and
the Transferor Amount is at least equal to the Required Transferor Amount
on such date.
(ii) In lieu of, or in addition to, causing the designation of
Additional Accounts pursuant to clause (i) above, the Transferor may (but
shall not be required), subject to the conditions specified in paragraph
(c) below, convey to the Trust participations (including 100%
participations) representing undivided interests in a pool of assets
primarily consisting of revolving credit card receivables, consumer loan
receivables (secured and unsecured), charge card receivables, and any
interests in any of the foregoing, including securities representing or
backed by such receivables, and other self-liquidating financial assets
including any "Eligible Assets" as such term is defined in Rule 3a-7 under
the Investment Company Act (or any successor to such Rule) and collections,
together with all earnings, revenue, dividends, distributions, income,
issues and profits thereon ("Participation Interests"). Receivables shall
not be treated as a Participation Interest for purposes of this Agreement.
The addition of Participation Interests in the Trust pursuant to this
paragraph (a) or paragraph (b) below shall be effected by a Participation
Interest Supplement, dated the applicable Addition Date and entered into
pursuant to Section 13.1(a).
(iii) Any Additional Accounts or Participation Interests
designated to be included as Trust Assets pursuant to clauses (i) or (ii)
above may only be so included if (x) Standard & Poor's shall have notified
the Transferor, the Servicer and the Trustee in writing that such addition
will not result in a reduction or withdrawal of the then existing rating of
any outstanding Series or Class with respect to which Standard & Poor's is
a Rating Agency, (y) the applicable conditions specified in paragraph (c)
below have been satisfied and (z) Moody's shall have received prior written
notice of any such designation of Additional Accounts or Participation
Interests pursuant to clauses (i) or (ii) above..
(b) Permitted Aggregate Additions. The Transferor may from time
to time, at its sole discretion, subject to the conditions specified in
paragraph (c) below, voluntarily cause the designation of additional
Eligible Accounts to be included as Accounts or Participation Interests to
be included as Trust Assets, in either case as of a specified Additional
Cut-Off Date.
(c) Conditions to Aggregate Additions. On the Addition Date
with respect to any Aggregate Additions, the transfer of the Receivables in
Aggregate Addition Accounts (and such Aggregate Addition Accounts shall be
deemed to be Accounts for purposes of this Agreement) or Participation
Interests as of the close of business on the applicable Additional Cut-Off
Date, shall be subject to the satisfaction of the following conditions:
(i) on or before the eighth Business Day immediately preceding
the Addition Date, the Transferor shall have given the Trustee, the
Servicer and the Rating Agency notice (unless such notice requirement
is otherwise waived) that the Aggregate Addition Accounts or
Participation Interests will be included and specifying the applicable
Addition Date and Additional Cut-Off Date;
(ii) all Aggregate Addition Accounts shall be Eligible Accounts;
(iii) the Transferor shall have delivered to the Trustee copies
of UCC-1 financing statements covering such Aggregate Addition
Accounts, if necessary to perfect the Trust's interest in the
Receivables arising therein;
(iv) to the extent required by Section 4.3, the Transferor shall
have deposited in the Collection Account all Collections with respect
to such Aggregate Addition Accounts since the Additional Cut-Off Date;
(v) as of each of the Additional Cut-Off Date and the Addition
Date, no Insolvency Event with respect to the related Account Owner,
the Servicer, PFR or the Transferor shall have occurred nor shall the
transfer to the Trust of the Receivables arising in the Aggregate
Addition Accounts or of the Participation Interests have been made in
contemplation of the occurrence thereof;
(vi) solely with respect to Aggregate Additions designated
pursuant to subsection 2.9(b), the Rating Agency Condition shall have
been satisfied;
(vii) the Transferor shall have delivered to the Trustee an
Officer's Certificate, dated the Addition Date, confirming, to the
extent applicable, the items set forth in clauses (ii) through (vi)
above;
(viii) the addition to the Trust of the Receivables arising in
the Aggregate Addition Accounts or of the Participation Interests will
not result in an Adverse Effect and, in the case of Aggregate
Additions, the Transferor shall have delivered to the Trustee an
Officer's Certificate, dated the Addition Date, stating that the
Transferor reasonably believes that the addition to the Trust of the
Receivables arising in the Aggregate Addition Accounts or of the
Participation Interests will not have an Adverse Effect; and
(ix) the Transferor shall have delivered to the Trustee and the
Rating Agency an Opinion of Counsel, dated the Addition Date, in
accordance with subsection 13.2(d)(ii) or (iv), as applicable.
(d) New Accounts.
(i) The Transferor may from time to time, in its sole
discretion, subject to and in compliance with the limitations
specified in clause (ii) below and the conditions specified in
paragraph (e) below, voluntarily designate newly originated Eligible
Accounts to be included as New Accounts. For purposes of this
paragraph, Eligible Accounts shall be deemed to include only
MasterCard and VISA revolving credit card accounts of the same nature
as those included as Initial Accounts or which have previously been
included in any Aggregate Addition if the Assignment related to such
Aggregate Addition expressly provides that such type of revolving
credit card account is permitted to be designated as a New Account.
(ii) Unless and until the Rating Agency otherwise consents in
writing, the Transferor shall not be permitted to designate New
Accounts and, upon obtaining such consent, the number and balance of
New Accounts designated with respect to any period designated by the
Rating Agency shall not exceed the amounts designated by the Rating
Agency.
(e) Conditions to Addition of New Accounts. On the Addition
Date with respect to any New Accounts, the transfer of the Receivables in
such New Accounts as of the close of business on the applicable Additional
Cut-Off Date and the designation of such New Accounts as Accounts shall be
subject to the satisfaction of the following conditions:
(i) the New Accounts shall all be Eligible Accounts;
(ii) the Transferor shall have delivered to the Trustee copies
of UCC-1 financing statements covering such New Accounts, if necessary
to perfect the Trust's interest in the Receivables arising therein;
(iii) to the extent required by Section 4.3, the Transferor
shall have deposited in the Collection Account all Collections with
respect to such New Accounts since the Additional Cut-Off Date;
(iv) as of each of the Additional Cut-Off Date and the Addition
Date, no Insolvency Event with respect to the related Account Owner,
the Servicer, PFR or the Transferor, shall have occurred nor shall the
transfer to the Trust of the Receivables arising in the New Accounts
have been made in contemplation of the occurrence thereof; and
(v) the addition of the Receivables arising in the New Accounts
to the Trust will not result in the occurrence of a Pay Out Event or
Reinvestment Event.
(f) Representations and Warranties. The Transferor conveying
Additional Accounts or Participation Interests hereby represents and
warrants to the Trust as of the related Addition Date as to the matters set
forth in clauses (v) and (viii) of subsection 2.9(c) above and that, in the
case of Additional Accounts, the list delivered pursuant to paragraph (h)
below is, as of the applicable Additional Cut-Off Date, true and complete
in all material respects.
(g) Delivery of Documents. In the case of the designation of
Additional Accounts, the Transferor designating such Accounts shall deliver
to the Trustee (i) the computer file or microfiche list required to be
delivered pursuant to Section 2.1 with respect to such Additional Accounts
on the date such file or list is required to be delivered pursuant to
Section 2.1 (the "Document Delivery Date") and (ii) a duly executed,
written Assignment (including an acceptance by the Trustee for the benefit
of the Certificateholders), substantially in the form of Exhibit B (the
"Assignment"), on the Document Delivery Date. In addition, in the case of
the designation of New Accounts, the Transferor shall deliver to the
Trustee on the Document Delivery Date an Officer's Certificate confirming,
to the extent applicable, the items set forth in clauses (i) through (v) of
subsection 2.9(e) above.
(h) The Transferor may determine, in its sole discretion, that
commencing on a specified date (the "Automatic Addition Commencement Date")
it shall designate that all Eligible Accounts shall be included as Accounts
subject to satisfaction of the following conditions: the number of
Accounts the Receivables of which are designated to be included in the
Trust pursuant to this subsection 2.9(h) since (i) the first day of the
eleventh preceding Monthly Period (or, in the case of any date on which
Additional Accounts are to be added to the Trust which occurs on or before
the last day of the eleventh Monthly Period following the Automatic
Addition Commencement Date, the Automatic Addition Commencement Date) minus
the number of Accounts of the type described in clause (k) of the
definition of "Eligible Account" which have been added on the initial day
of the addition of such type of Account pursuant to such clause (k) since
the first day of such eleventh preceding Monthly Period (or Automatic
Addition Commencement Date, as the case may be) minus any Removed Accounts
removed since the first day of such eleventh preceding Monthly Period (or
Automatic Addition Commencement Date, as the case may be) shall not exceed
20% (or such other percentage as the Rating Agency may require) of the
number of Accounts on the first day of such eleventh preceding Monthly
Period (or Automatic Addition Commencement Date, as the case may be), and
(ii) the first day of the second preceding Monthly Period (or, in the case
of any date on which Additional Accounts are to be added to the Trust which
occurs on or before the last day of the second Monthly Period following the
Automatic Addition Commencement Date, the Automatic Addition Commencement
Date) minus the number of Accounts of the type described in clause (k) of
the definition of "Eligible Accounts" which have been added on the initial
day of the addition of such type of Account pursuant to such clause (k)
since the first day of such second preceding Monthly Period (or Automatic
Addition Commencement Date, as the case may be) minus any Removed Accounts
removed since the first day of such second preceding Monthly Period (or
Automatic Addition Commencement Date, as the case may be) shall not exceed
15% (or such other percentage as the Rating Agency may require) of the
number of Accounts on the first day of such second preceding Monthly Period
(or Automatic Addition Commencement Date, as the case may be).
For all purposes of this Agreement, all receivables of such
Additional Accounts shall be treated as Receivables upon their creation and
shall be subject to the eligibility criteria specified in the definitions
of "Eligible Receivable" and "Eligible Account." Notwithstanding the
foregoing, the Transferor may elect at any time, or may be required if the
percentages described above are exceeded, to suspend the automatic
inclusion in Accounts of new accounts which would otherwise be Additional
Accounts as of any Business Day (the "Automatic Addition Suspension Date"),
or terminate any such inclusion as of any Business Day (an "Automatic
Addition Termination Date") until a date (the "Restart Date") to be
identified in writing by the Transferor to the Trustee, the Servicer and
the Rating Agency at least 10 days prior to such Restart Date. Promptly
after an Automatic Addition Suspension Date or any Automatic Addition
Termination Date, or a Restart Date, the Transferor and the Trustee agree
to execute and the Transferor agrees to record and file at its own expense
an amendment to the financing statements referred to in Section 2.1 hereof
to specify the accounts then subject to this Agreement (which specification
may incorporate a list of accounts by reference) and may, except in
connection with any such filing made after a Restart Date, release any
security interest in any accounts created after the Automatic Addition
Suspension Date or any Automatic Addition Termination Date.
Section 2.10 Removal of Accounts and Participation Interests.
On any day of any Monthly Period the Transferor shall have the right to
require the reassignment to it or its designee of all the Trust's right,
title and interest in, to and under the Receivables then existing and
thereafter created, all monies due or to become due and all amounts
received thereafter with respect thereto and all proceeds thereof in or
with respect to the Accounts specified in a Receivables Purchase Agreement
(the "Removed Accounts") or Participation Interests conveyed to the Trust
by the Transferor (the "Removed Participation Interests") (unless otherwise
set forth in the applicable Participation Interest Supplement or Series
Supplement) and designated for removal by the Transferor, upon satisfaction
of the conditions in clauses (i), (iii), (iv) and (v) below:
(i) on or before the eighth Business Day immediately preceding
the Removal Date, the Transferor shall have given the Trustee, the
Servicer, the Rating Agency and each Series Enhancer notice (unless
such notice requirement is otherwise waived) of such removal and
specifying the date for removal of the Removed Accounts and removed
Participation Interests (the "Removal Date");
(ii) on or prior to the date that is five Business Days after
the Removal Date, the Transferor shall amend Schedule 1 by delivering
to the Trustee a computer file or microfiche list containing a true
and complete list of the Removed Accounts specifying for each such
Account, as of the date notice of the Removal Date is given, its
account number, the aggregate amount outstanding in such Account and
the aggregate amount of Principal Receivables outstanding in such
Account;
(iii) the Transferor shall have represented and warranted as of
the Removal Date that the list of Removed Accounts delivered pursuant
to paragraph (ii) above, as of the Removal Date, is true and complete
in all material respects;
(iv) the Rating Agency Condition shall have been satisfied with
respect to the removal of the Removed Accounts and removed
Participation Interests; and
(v) the Transferor shall have delivered to the Trustee an
Officer's Certificate, dated the Removal Date, to the effect that the
Transferor reasonably believes that (a) such removal will not have an
Adverse Effect, and (b) (I) no selection procedures believed by the
Transferor to be materially adverse to the interests of the Investor
Certificateholders have been used in selecting the Removed Accounts or
(II) a random selection procedure was used by the Transferor in
selecting the Removed Accounts.
Upon satisfaction of the above conditions, the Trustee shall
execute and deliver to the Transferor a written reassignment in
substantially the form of Exhibit C (the "Reassignment") and shall, without
further action, be deemed to sell, transfer, assign, set over and otherwise
convey to the Transferor or its designee, effective as of the Removal Date,
without recourse, representation or warranty, all the right, title and
interest of the Trust in and to the Receivables arising in the Removed
Accounts and Removed Participation Interests, all monies due and to become
due and all amounts received with respect thereto and all proceeds thereof
and any Insurance Proceeds relating thereto. The Trustee may conclusively
rely on the Officer's Certificate delivered pursuant to this Section 2.10
and shall have no duty to make inquiries with regard to the matters set
forth therein and shall incur no liability in so relying.
In addition to the foregoing, on the date when any Receivable in
an Account becomes a Defaulted Receivable, the Trust shall automatically
and without further action or consideration be deemed to transfer, set over
and otherwise convey to the Transferor, without recourse, representation or
warranty, all right, title and interest of the Trust in and to the
Defaulted Receivables in such Account, all monies due or to become due with
respect thereto, all proceeds thereof and any Insurance Proceeds relating
thereto; provided, that Recoveries of such Account shall be applied as
provided herein.
The foregoing conditions may be amended with the consent of the
Rating Agency but without the consent of Certificateholders if such
amendment is required to comply with any accounting or regulatory
restrictions to which the Trust, Holdings, the Transferor, PFR, any Account
Originator or any Account Owner may become subject.
Section 2.11 Account Allocations. In the event that the
Transferor is unable for any reason to transfer Receivables to the Trust in
accordance with the provisions of this Agreement, including by reason of
the application of the provisions of Section 9.1 or any order of any
Governmental Authority (a "Transfer Restriction Event"), then, in any such
event, (a) the Transferor and the Servicer agree (except as prohibited by
any such order) to allocate and pay to the Trust, after the date of such
inability, all Collections, including Collections of Receivables
transferred to the Trust prior to the occurrence of such event, and all
amounts which would have constituted Collections but for the Transferor's
inability to transfer Receivables (up to an aggregate amount equal to the
amount of Receivables transferred to the Trust by the Transferor in the
Trust on such date), (b) the Transferor and the Servicer agree that such
amounts will be applied as Collections in accordance with Article IV and
the terms of each Supplement and (c) for so long as the allocation and
application of all Collections and all amounts that would have constituted
Collections are made in accordance with clauses (a) and (b) above,
Principal Receivables and all amounts which would have constituted
Principal Receivables but for the Transferor's inability to transfer
Receivables to the Trust which are written off as uncollectible in
accordance with this Agreement shall continue to be allocated in accordance
with Article IV and the terms of each Supplement. For the purpose of the
immediately preceding sentence, the Transferor and the Servicer shall treat
the first received Collections with respect to the Accounts as allocable to
the Trust until the Trust shall have been allocated and paid Collections in
an amount equal to the aggregate amount of Principal Receivables in the
Trust as of the date of the occurrence of such event. If the Transferor
and the Servicer are unable pursuant to any Requirements of Law to allocate
Collections as described above, the Transferor and the Servicer agree that,
after the occurrence of such event, payments on each Account with respect
to the principal balance of such Account shall be allocated first to the
oldest principal balance of such Account and shall have such payments
applied as Collections in accordance with Article IV and the terms of each
Supplement. The parties hereto agree that Finance Charge Receivables,
whenever created, accrued in respect of Principal Receivables which have
been conveyed 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 and the
terms of each Supplement.
Section 2.12 Discount Option.
(a) The Transferor 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 Transferor 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;
provided, however, such reduction or withdrawal shall occur only if the
Transferor delivers to the Trustee and, in connection with certain Series,
the applicable Series Enhancers, a certificate of an authorized
representative to the effect that, in the reasonable belief of the
Transferor, such reduction or withdrawal would not have adverse regulatory
or other accounting implications for the Transferor. The Transferor 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 only if (a) the Transferor has
delivered to the Trustee and any such Series Enhancer a certificate of an
authorized representative to the effect that, based on the facts known to
such representative at the time, the Transferor reasonably believes that
such designation or reduction or withdrawal will not at the time of its
occurrence cause a Pay Out Event or Reinvestment Event or an event that,
with notice or the lapse of time or both, would constitute a Pay Out Event
or Reinvestment Event, to occur with respect to any Series and (b) the
Transferor has received written notice from the Rating Agency that such
designation, reduction or withdrawal will satisfy the Rating Agency
Condition .
(b) After the Discount Option Date, Discount Option Receivable
Collections shall be treated as Collections of Finance Charge Receivables.
Section 2.13 Premium Option.
(a) The Transferor 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 "Premium
Percentage"), of all or any specified portion of Finance Charge Receivables
created after the Premium Option Date to be treated as Principal
Receivables ("Premium Option Receivables"). The Transferor shall also have
the option of reducing or withdrawing the Premium Percentage, at any time
and from time to time, on and after such Premium Option Date; provided,
however, that such reduction or withdrawal may occur only if the Transferor
delivers to the Trustee and, in connection with certain Series, the
applicable Series Enhancers, a certificate of an authorized representative
to the effect that, in the reasonable belief of the Transferor, such
reduction or withdrawal would not have adverse regulatory or other
accounting implications for the Transferor. The Transferor shall provide
to the Servicer, the Trustee and any Rating Agency 30 days' prior written
notice of the Premium Option Date, and such designation shall become
effective on the Premium Option Date only if (a) the Transferor has
delivered to the Trustee and any such Series Enhancer a certificate of an
authorized representative to the effect that, based on the facts known to
such representative at the time, the Transferor reasonably believes that
such designation, reduction or withdrawal will not at the time of its
occurrence cause a Pay Out Event or Reinvestment Event or an event that,
with notice or the lapse of time or both, would constitute a Pay Out Event
or Reinvestment Event, to occur with respect to any Series, (b) the
Transferor has received written notice from the Rating Agency that such
designation, reduction or withdrawal will satisfy the Rating Agency
Condition and (c) the Transferor has delivered a Tax Opinion to the Trustee
and the Rating Agency
(b) After the Premium Option Date, Premium Option Receivables
Collections shall be treated as Collections of Principal Receivables.
[END OF ARTICLE II]
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.1 Acceptance of Appointment and Other Matters Relating
to the Servicer.
(a) Holdings agrees to act as the Servicer under this Agreement
and the Certificateholders by their acceptance of Certificates consent to
Holdings acting as Servicer. Notwithstanding the foregoing or any other
provisions of this Agreement or any Supplement, the Investor
Certificateholders consent to any Account Owner acting as Servicer
hereunder, in full substitution for Holdings; provided that such Account
Owner acting as Servicer shall (i) be an Eligible Servicer and (ii)
expressly assume in writing (unless such assumption occurs by operation of
law), by an agreement supplemental hereto, executed and delivered to the
Trustee, the performance of every covenant and obligation of the Servicer,
as applicable hereunder, and shall in all respects be designated the
Servicer under this Agreement.
(b) As agent for the Transferor and the Trust, the Servicer
shall service and administer the Receivables and any Participation
Interests, shall collect and deposit into the Collection Account payments
due under the Receivables and any Participation Interests and shall charge-
off as uncollectible Receivables, all in accordance with its customary and
usual servicing procedures for servicing credit card receivables comparable
to the Receivables and in accordance with the Credit Card Guidelines. As
agent for the Transferor and the Trust, the Servicer 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; provided, however,
that subject to the rights of the Trustee and the Certificateholders
hereunder, PFRF shall have the absolute right to direct the Servicer with
respect to any power conferred on the Servicer hereunder in accordance with
any such direction. Without limiting the generality of the foregoing and
subject to Section 10.1, the Servicer or its designee is hereby authorized
and empowered, unless such power is revoked by the Trustee on account of
the occurrence of a Servicer Default pursuant to Section 10.1, (i) to
instruct the Trustee to make withdrawals and payments from the Collection
Account, the Special Funding Account and any Series Account, as set forth
in this Agreement or any Supplement, (ii) to take any action required or
permitted under any Series Enhancement, as set forth in this Agreement or
any Supplement, (iii) 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 Requirements of Law, to commence
collection proceedings with respect to such Receivables and (iv) to make
any filings, reports, notices, applications and registrations with, and to
seek any consents or authorizations from, the 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 or other laws or regulations. The Trustee shall furnish the
Servicer with any documents necessary or appropriate to enable the Servicer
to carry out its servicing and administrative duties hereunder.
(c) The Servicer shall not, and no Successor Servicer shall, 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 or such Successor Servicer, as
the case may be, in connection with servicing other credit card
receivables.
(d) The Servicer shall comply with and perform its servicing
obligations with respect to the Accounts and Receivables in accordance with
the Credit Card Agreements relating to the Accounts and the Credit Card
Guidelines and all applicable rules and regulations of MasterCard and VISA,
except insofar as any failure to so comply or perform would not materially
and adversely affect the Trust or the Investor Certificateholders.
(e) The Servicer shall pay out of its own funds, without
reimbursement, all expenses incurred in connection with the Trust and the
servicing activities hereunder including expenses related to enforcement of
the Receivables, fees and disbursements of the Trustee (including the
reasonable fees and expenses of its outside counsel) and independent
accountants and all other fees and expenses, including the costs of filing
UCC continuation statements, the costs and expenses relating to obtaining
and maintaining the listing of any Investor Certificates on any stock
exchange and any stamp, documentary, excise, property (whether on real,
personal or intangible property) or any similar tax levied on the Trust or
the Trust's assets that are not expressly stated in this Agreement to be
payable by the Trust or the Transferor (other than federal, state, local
and foreign income and franchise taxes, if any, or any interest or
penalties with respect thereto, assessed on the Trust).
Section 3.2 Servicing Compensation. As full compensation for
its servicing activities hereunder and as reimbursement for any expense
incurred by it in connection therewith, the Servicer shall be entitled to
receive a servicing fee (the "Servicing Fee") with respect to each Monthly
Period, payable monthly on the related Distribution Date, in an amount
equal to one-twelfth of the product of (a) the weighted average of the
Servicing Fee Rates with respect to each outstanding Series (based upon the
Servicing Fee Rate for each Series and the Invested Amount (or such other
amount as specified in the related Supplement) of such Series, in each case
as of the last day of the prior Monthly Period) and (b) the amount of
Principal Receivables on the last day of the prior Monthly Period. The
share of the Servicing Fee allocable to the Certificateholders' Interest of
a particular Series with respect to any Monthly Period (the "Monthly
Servicing Fee") will be determined in accordance with the relevant
Supplement. For any Monthly Period, the portion of the Monthly Servicing
Fee with respect to any Series payable from Interchange shall be an amount
equal to the portion of collections of Finance Charge Receivables allocated
to the Certificateholders' Interest of such Series with respect to such
Monthly Period that is attributable to Interchange (the "Servicer
Interchange"); provided, however, that Servicer Interchange for a Monthly
Period may not exceed one-twelfth of the product of the Series Adjusted
Investor Amount, as of the last day of such Monthly Period and the
percentage specified in the related Supplement. The portion of the
Servicing Fee with respect to any Monthly Period not so allocated to the
Certificateholders' Interest of any particular Series shall be paid by the
Holders of the Transferor Certificates on the related Distribution Date and
in no event shall the Trust, the Trustee, the Investor Certificateholders
of any Series or any Series Enhancer be liable for the share of the
Servicing Fee with respect to any Monthly Period to be paid by the Holders
of the Transferor Certificates.
Section 3.3 Representations, Warranties and Covenants of the
Servicer. Holdings, as initial Servicer, hereby makes, and any Successor
Servicer by its appointment hereunder shall make, with respect to itself,
on each Closing Date (and on the date of any such appointment), the
following representations, warranties and covenants on which the Trustee
shall be deemed to have relied in accepting the Receivables in trust and in
authenticating the Certificates:
(a) Organization and Good Standing. The Servicer is a limited
liability company, corporation or other legal entity validly existing under
the applicable law of the jurisdiction of its organization or incorporation
and has, in all material respects, full power and authority to own its
properties and conduct its credit card servicing business as presently
owned or conducted, and to execute, deliver and perform its obligations
under this Agreement and each Supplement.
(b) Due Qualification. The Servicer is duly qualified to do
business and is in good standing as a foreign limited liability company or
other foreign entity (or is exempt from such requirements) and has obtained
all licenses and approvals required under the laws of each jurisdiction in
which the ownership or lease of its property or the conduct of its business
(other than the performance of its obligations hereunder) requires such
qualification, standing, license or approval, except to the extent that the
failure to so qualify, maintain such standing or be so licensed or approved
would not, in the aggregate, adversely effect the enforceability of the
Receivables. Either the Servicer is qualified to do business as a foreign
limited liability company, corporation or other foreign entity, is in good
standing, and has obtained all licenses and approvals as required under the
laws of all jurisdictions in which the performance of its obligations
pursuant to this Agreement requires such qualification, standing, license
or approval or the Servicer will have delegated its duties hereunder (in
accordance with subsection 8.7) to subservicers which, when taken together
with the Servicer are, in the aggregate, qualified to do business as a
foreign limited liability company, corporation or other foreign entity, are
in good standing, and have obtained all licenses and approvals as required
under the laws of all jurisdictions in which the performance by the
Servicer of its obligations pursuant to this Agreement requires such
qualification, standing, license or approval, except to the extent that the
failure to so qualify, maintain such standing or be so licensed or approved
would not, in the aggregate, materially and adversely affect the ability of
the Servicer to comply with this Agreement or to perform its obligations
hereunder or adversely effect the enforceability of the Receivables.
(c) Due Authorization. The execution, delivery, and performance
of this Agreement and each Supplement, and the other agreements and
instruments executed or to be executed by the Servicer as contemplated
hereby, have been duly authorized by the Servicer by all necessary action
on the part of the Servicer.
(d) Binding Obligation. This Agreement and each Supplement
constitutes a legal, valid and binding obligation of the Servicer,
enforceable in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally from time to
time in effect or by general principles of equity.
(e) No Conflict. The execution and delivery of this Agreement
and each Supplement by the Servicer, and the performance of the
transactions contemplated by this Agreement and each Supplement and the
fulfillment of the terms hereof and thereof applicable to the Servicer,
will not conflict with, violate or 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 the Servicer is a party or by
which it or its properties are bound which would have an Adverse Effect.
(f) No Violation. The execution and delivery of this Agreement
and each Supplement by the Servicer, the performance of the transactions
contemplated by this Agreement and each Supplement and the fulfillment of
the terms hereof and thereof applicable to the Servicer will not conflict
with or violate any Requirements of Law applicable to the Servicer in a
manner which would have an Adverse Effect.
(g) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Servicer, threatened against the
Servicer before any Governmental Authority seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or
any Supplement or 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
any Supplement.
(h) Compliance with Requirements of Law. The Servicer shall
duly satisfy all obligations on its part to be fulfilled under or in
connection with each Receivable (and the underlying receivable) and the
related Account, if any, will maintain in effect all qualifications
required under Requirements of Law in order to service properly each
Receivable and the related Account, if any, and will comply in all material
respects with all other Requirements of Law in connection with servicing
each Receivable and the related Account the failure to comply with which
would have an Adverse Effect.
(i) No Rescission or Cancellation. The Servicer shall not
permit any rescission or cancellation of any Receivable (or the underlying
receivable) except in accordance with the Credit Card Guidelines or as
ordered by a court of competent jurisdiction or other Governmental
Authority.
(j) Protection of Certificateholders' Rights. The Servicer shall
take no action which, nor omit to take any action the omission of which,
would impair the rights of Certificateholders in any Receivable (or the
underlying receivable) or the related Account, if any, nor shall it
reschedule, revise or defer payments due on any Receivable except in
accordance with the Credit Card Guidelines.
(k) Receivables Not To Be Evidenced by Promissory Notes. Except
in connection with its enforcement or collection of an Account, the
Servicer will take no action to cause any Receivable to be evidenced by any
instrument, other than an instrument that, taken together with one or more
other writings, constitutes chattel paper (as such terms are defined in the
UCC) and if any Receivable is so evidenced it shall be reassigned or
assigned to the Servicer as provided in this Section.
(l) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the Servicer in
connection with the execution and delivery of this Agreement and each
Supplement by the Servicer and the performance of the transactions
contemplated by this Agreement and each Supplement by the Servicer, have
been duly obtained, effected or given and are in full force and effect;
provided, however, that the Servicer makes no representation or warranty
regarding state securities or "blue sky" laws in connection with the
distribution of the Certificates.
(m) Computer Records. The Servicer shall update its computer
files with respect the Accounts on a daily basis.
In the event (x) any of the representations, warranties or
covenants of the Servicer contained in subsection 3.3 (h), (i), (j) or (l)
with respect to any Receivable or the related Account is breached, and such
breach has a material adverse effect on the Certificateholders' Interest in
such Receivable (which determination shall be made without regard to
whether funds are then available to any Investor Certificateholders
pursuant to any Series Enhancement) and is not cured within 60 days (or
such longer period, not in excess of 150 days, as may be agreed to by the
Trustee and the Transferor) of the earlier to occur of the discovery of
such event by the Servicer, or receipt by the Servicer of notice of such
event given by the Trustee or the Transferor, or (y) as provided in
subsection 3.3(k) with respect to any Receivable, all Receivables in the
Account or Accounts to which such event relates shall be assigned and
transferred to the Servicer on the terms and conditions set forth below.
The Servicer shall effect such assignment by making a deposit
into the Collection Account in immediately available funds on the Transfer
Date following the Monthly Period in which such assignment obligation
arises in an amount equal to the amount of such Receivables.
Upon each such reassignment or assignment to the Servicer, the
Trustee, on behalf of the Trust, shall automatically and without further
action be deemed to transfer, assign, set over and otherwise convey to the
Servicer, without recourse, representation or warranty, all right, title
and interest of the Trust in and to such Receivables, all monies due or to
become due and all amounts received with respect thereto and all proceeds
thereof. The Trustee shall execute such documents and instruments of
transfer or assignment and take such other actions as shall be reasonably
requested by the Servicer to effect the conveyance of any such Receivables
pursuant to this Section but only upon receipt of an Officer's Certificate
of the Servicer that states that all conditions set forth in this section
have been satisfied. The obligation of the Servicer to accept reassignment
or assignment of such Receivables, and to make the deposits, if any,
required to be made to the Collection Account as provided in the preceding
paragraph, shall constitute the sole remedy respecting the event giving
rise to such obligation available to Certificateholders (or the Trustee on
behalf of Certificateholders) or any Series Enhancer, except as provided in
Section 8.4.
Section 3.4 Reports and Records for the Trustee.
(a) Daily Records. On each Business Day, the Servicer shall
make or cause to be made available at the office of the Servicer for
inspection by the Trustee upon request a record setting forth (i) the
Collections in respect of Principal Receivables and in respect of Finance
Charge Receivables processed by the Servicer on the second preceding
Business Day in respect of each Account and (ii) the amount of Receivables
as of the close of business on the second preceding Business Day in each
Account. The Servicer shall, at all times, maintain its computer files
with respect to the Accounts in such a manner so that the Accounts may be
specifically identified and shall make available to the Trustee at the
office of the Servicer on any Business Day any computer programs necessary
to make such identification. The Trustee shall enter into such reasonable
confidentiality agreements as the Servicer shall deem necessary to protect
its interests and as are reasonably acceptable in form and substance to the
Trustee.
(b) Monthly Servicer's Certificate. Not later than the second
Business Day preceding each Distribution Date, the Servicer shall, with
respect to each outstanding Series, deliver to the Trustee and the Rating
Agency a certificate of a Servicing Officer in substantially the form set
forth in the related Supplement.
Section 3.5 Annual Certificate of Servicer. The Servicer shall
deliver to the Trustee and the Rating Agency on or before March 31 of each
calendar year, beginning with March 31, 1998, an Officer's Certificate
substantially in the form of Exhibit D.
Section 3.6 Annual Servicing Report of Independent Public
Accountants; Copies of Reports Available.
(a) On or before June 30 of each calendar year, beginning with
June 30, 1999, the Servicer shall cause a firm of nationally recognized
independent public accountants (who may also render other services to the
Servicer or the Transferor) to furnish a report (addressed to the Trustee)
to the Trustee, the Servicer and the Rating Agency to the effect such
accounting firm has made a study and evaluation of the Servicer's internal
accounting controls relative to the servicing of the Accounts and that, on
the basis of such examination, such firm is of the opinion that, assuming
the accuracy of reports by the Servicer's third party agents, the system of
internal accounting controls in effect on the date of such statement
relating to servicing procedures performed by the Servicer, taken as a
whole, was sufficient for the prevention and detection of errors and
irregularities in amounts that would be material to the financial
statements of the Servicer and that such servicing was conducted in
compliance with the sections of this Agreement during the period covered by
such report (which shall be the period from July 1) or for the initial
period, the relevant Closing Date) of the preceding calendar year to and
including June 30 of such calendar year), except for such exceptions or
errors as such firm shall believe to be immaterial and such other
exceptions as shall be set forth in such statement.
(b) On or before June 30 of each calendar year, beginning with
June 30, 1999, the Servicer shall cause a firm of nationally recognized
independent public accountants (who may also render other services to the
Servicer or the Transferor) to furnish a report to the Trustee, the
Servicer and each Rating Agency, to the effect that they have randomly
selected three of the 12 monthly certificates forwarded by the Servicer
pursuant to subsection 3.4(b) during the period covered by such report
(which shall be the 12-month period ending on December 31 of the preceding
calendar year) and have compared the amounts set forth therein with the
Servicer's computer reports which were the source of such amounts and found
them to be in agreement or shall disclose any exceptions noted and that
they have recalculated the mathematical accuracy of amounts derived in such
monthly certificates; provided, however, that the Servicer shall cause such
accountants to furnish such report with respect to a larger number of
months within such 12 month period if so requested in writing by the Rating
Agency; provided, further, that upon the occurrence of a charge-off with
respect to any Investor Certificate, the Servicer shall cause such
accountants to furnish such report with respect to all 12 of the monthly
certificates forwarded by the Servicer during such 12-month period.
(c) A copy of each certificate and report provided pursuant to
subsection 3.4(b), or Section 3.5 or 3.6 may be obtained by any Investor
Certificateholder or Certificate Owner by a request in writing to the
Trustee addressed to the Corporate Trust Office.
Section 3.7 Tax Treatment. The Transferor has entered into this
Agreement, and the Certificates will be issued with the intention that,
unless otherwise specified in any Supplement, for Federal, state and local
income and franchise tax purposes, the Investor Certificates (except any
Certificates held by the Transferor) of each Series will qualify as debt
secured by the Receivables. The Transferor, by entering into this
Agreement, each Certificateholder, by the acceptance of its Certificate
(and each Certificate Owner, by its acceptance of an interest in the
applicable Certificate), agree to treat the Investor Certificates for
Federal, state and local income and franchise tax purposes as debt. Each
Holder of an Investor Certificate agrees that it will cause any Certificate
Owner acquiring an interest in an Investor Certificate through it to comply
with this Agreement as to treatment as debt under applicable tax law, as
described in this Section 3.7. Furthermore, subject to Section 11.11 or
unless the Transferor shall determine that the filing of returns is
appropriate, the Trustee shall treat the Trust as a security device only
and shall not file tax returns or obtain an employer identification number
on behalf of the Trust and none of the parties hereto shall make the
election provided for in Treasury Regulation Section 301.7701-3(c).
Section 3.8 Notices to Holdings. In the event that Holdings is
no longer acting as Servicer, any Successor Servicer shall deliver or make
available to Holdings each certificate and report required to be provided
thereafter pursuant to subsection 3.4(b) and Sections 3.5 and 3.6.
Section 3.9 Adjustments.
(a) If the Servicer adjusts downward the amount of any
Receivable because of a rebate, refund, unauthorized charge or billing
error to a cardholder, because such Receivable was created in respect of
merchandise which was refused or returned by a cardholder, or if the
Servicer otherwise adjusts downward the amount of any Receivable without
receiving Collections therefor or charging off such amount as
uncollectible, then, in any such case, the amount of Principal Receivables
used to calculate the Transferor Amount, the Transferor's Interest, and
(unless otherwise specified) any other amount required herein or in any
Supplement to be calculated by reference to the amount of Principal
Receivables, will be reduced by the amount of the adjustment. Similarly,
the amount of Principal Receivables used to calculate the Transferor Amount
and (unless otherwise specified) any other amount required herein or in any
Supplement to be calculated by reference to the amount of Principal
Receivables will be reduced by the principal amount of any Receivable which
was discovered as having been created through a fraudulent or counterfeit
charge or with respect to which the covenant contained in subsection 2.7(b)
was breached. Any adjustment required pursuant to either of the two
preceding sentences shall be made on or prior to the end of the Monthly
Period in which such adjustment obligation arises. In the event that,
following the exclusion of such Principal Receivables from the calculation
of the Transferor Amount, the Transferor Amount would be less than the
Required Transferor Amount, not later than 1:00 P.M., New York City time,
on the Distribution Date following the Monthly Period in which such
adjustment obligation arises, the Transferor shall make a deposit into the
Special Funding Account in immediately available funds in an amount equal
to the amount by which the Transferor Amount would be less than the
Required Transferor Amount, due to adjustments with respect to Receivables
conveyed by such the Transferor (up to the amount of such Principal
Receivables) (any such payment, an "Adjustment Payment"). Any amount
deposited into the Special Funding Account pursuant to the preceding
sentence shall be considered Collections of Principal Receivables and shall
be applied in accordance with Article IV and the terms of each Supplement;
provided, however, that any such amounts paid by the Transferor after the
time period specified in the preceding sentence, to the extent of any
related Adjustment Payment Shortfall, shall not be deposited in the Special
Funding Account but shall be considered Collections of Finance Charge
Receivables and shall be applied in accordance with Article IV and the
Supplement.
(b) If (i) the Servicer makes a deposit into the Collection
Account in respect of a Collection of a Receivable and such Collection was
received by the Servicer in the form of a check which is not honored for
any reason or (ii) the Servicer makes a mistake with respect to the amount
of any Collection and deposits an amount that is less than or more than the
actual amount of such Collection, the Servicer shall appropriately adjust
the amount subsequently deposited into the Collection Account to reflect
such dishonored check or mistake. Any Receivable in respect of which a
dishonored check is received shall be deemed not to have been paid.
Notwithstanding the first two sentences of this paragraph, adjustments made
pursuant to this Section shall not require any change in any report
previously delivered pursuant to subsection 3.4(a).
Section 3.10 Reports to the Commission. The Servicer shall, on
behalf of the Trust, cause to be filed with the Commission any periodic
reports required to be filed under the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder. The Transferor shall, at the expense of the
Servicer, cooperate in any reasonable request of the Servicer in connection
with such filings.
[END OF ARTICLE III]
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.1 Rights of Certificateholders. The Investor
Certificates shall represent undivided interests in the Trust, which, with
respect to each Series, shall consist of the right to receive, to the
extent necessary to make the required payments with respect to the Investor
Certificates of such Series at the times and in the amounts specified in
the related Supplement, the portion of Collections allocable to Investor
Certificateholders of such Series pursuant to this Agreement and such
Supplement, funds on deposit in the Collection Account and the Special
Funding Account allocable to Certificateholders of such Series pursuant to
this Agreement and such Supplement, funds on deposit in any related Series
Account and funds available pursuant to any related Series Enhancement
(collectively, with respect to all Series, the "Certificateholders'
Interest"), it being understood that, except as specifically set forth in
the Supplement with respect thereto, the Investor Certificates of any
Series or Class shall not represent any interest in any Series Account or
Series Enhancement for the benefit of any other Series or Class. The
Transferor Certificates shall represent the ownership interest in the Trust
Assets not allocated pursuant to this Agreement or any Supplement to the
Certificateholders' Interest, and the right to receive Collections with
respect to the Receivables and other amounts at the times and in the
amounts specified in any Supplement to be paid to the Transferor on behalf
of all Holders of the Transferor Certificates (the "Transferor's
Interest"); provided, however, that the Transferor Certificates shall not
represent any interest in the Collection Account, any Series Account or any
Series Enhancement, except as specifically provided in this Agreement or
any Supplement.
Section 4.2 Establishment of Collection Account and Special
Funding Account. The Servicer, for the benefit of the Certificateholders,
shall establish and maintain in the name of the Trustee, on behalf of the
Trust, an Eligible Deposit Account bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the
Certificateholders (the "Collection Account"). The Trustee shall possess
all right, title and interest in all monies, instruments, securities,
documents, certificates of deposit and other property on deposit from time
to time in the Collection Account and in all proceeds, earnings, income,
revenue, dividends and distributions thereof for the benefit of the
Certificateholders.
The Collection Account shall be under the sole dominion and
control of the Trustee for the benefit of the Certificateholders. Except
as expressly provided in this 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 Trustee, the Trust, any Certificateholder or any Series
Enhancer. If, at any time, the Collection Account ceases to be an Eligible
Deposit Account, the Servicer shall provide written notice thereof to the
Rating Agency, and the Trustee (or the Servicer on its behalf) shall
within 10 Business Days (or such longer period, not to exceed 30 calendar
days, as to which the Rating Agency may consent) establish a new Collection
Account meeting the conditions specified above, transfer any monies,
documents, instruments, securities, 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 subsection 3.1(b), the
Servicer shall have the power, revocable by the Trustee, to make
withdrawals and payments from the Collection Account and to instruct the
Trustee to make withdrawals and payments from the Collection Account for
the purposes of carrying out the Servicer's or the Trustee's duties
hereunder. The Servicer shall reduce deposits into the Collection Account
payable by the Transferor on any Deposit Date to the extent the Transferor
is entitled to receive funds from the Collection Account on such Deposit
Date, but only to the extent such reduction would not reduce the Transferor
Amount to an amount less than the Required Transferor Amount.
Funds on deposit in the Collection Account (other than investment
earnings and amounts deposited pursuant to Sections 2.6, 9.1, 10.1 or 12.2)
shall at the written direction of the Servicer be invested by the Trustee
in Eligible Investments selected by the Servicer. All such Eligible
Investments shall be held by the Trustee for the benefit of the
Certificateholders. The Trustee shall maintain for the benefit of the
Certificateholders possession of the instruments, documents, certificates
of deposit or securities, if any, evidencing such Eligible Investments.
Investments of funds representing Collections collected during any Monthly
Period shall be invested in Eligible 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. No such Eligible
Investment shall be disposed of prior to its maturity; provided, however,
that the Trustee may sell, liquidate or dispose of any such Eligible
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 Eligible Investment or if, prior to
the maturity of such Eligible Investment, a default occurs in the payment
of principal, interest or any other amount with respect to such Eligible
Investment. Unless directed by the Servicer, 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 Supplement. The Trustee shall bear no responsibility or
liability for any losses resulting from investment or reinvestment of any
funds in accordance with this Section 4.2 nor for the selection of Eligible
Investments in accordance with the provisions of this Agreement.
The Servicer, for the benefit of the Certificateholders, shall
establish and maintain in the name of the Trustee, on behalf of the Trust,
an Eligible Deposit Account bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the
Certificateholders (the "Special Funding Account"). The Trustee shall
possess all right, title and interest in all monies, instruments,
securities, documents, certificates of deposit and other property on
deposit from time to time in the Special Funding Account and in all
proceeds, dividends, distributions, earnings, income and revenue thereof
for the benefit of the Certificateholders. The Special Funding Account
shall be under the sole dominion and control of the Trustee for the benefit
of the Certificateholders. Except as expressly provided in this 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
Special Funding Account for any amount owed to it by the Trustee, the
Trust, any Certificateholder or any Series Enhancer. If, at any time, the
Special Funding Account ceases to be an Eligible Deposit Account, the
Trustee (or the Servicer on its behalf) shall within 10 Business Days (or
such longer period, not to exceed 30 calendar days, as to which the Rating
Agency may consent) establish a new Special Funding Account meeting the
conditions specified above, transfer any monies, documents, instruments,
securities, certificates of deposit and other property to such new Special
Funding Account and from the date such new Special Funding Account is
established, it shall be the "Special Funding Account."
Funds on deposit in the Special Funding Account shall at the
written direction of the Servicer (who may be directed by the Transferor,
at its option) be invested by the Trustee in Eligible Investments selected
by the Servicer. All such Eligible Investments shall be held by the
Trustee for the benefit of the Certificateholders. The Trustee shall
maintain for the benefit of the Certificateholders possession of the
instruments, documents, certificates of deposit or securities, if any,
evidencing such Eligible Investments. Funds on deposit in the Special
Funding Account on any Distribution Date will be invested in Eligible
Investments that will mature so that such funds will be available no later
than the next succeeding Business Day. No such Eligible Investment shall
be disposed of prior to its maturity; provided, however, that the Trustee
may sell, liquidate or dispose of an Eligible Investment before its
maturity, at the written direction of the Servicer (who may be directed by
the Transferor, at its option) or if, prior to the maturity of such
Eligible Investment, a default occurs in the payment of principal, interest
or any other amount with respect to such Eligible Investment. Unless
directed by the Servicer, funds deposited in the Special 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 Special Funding 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 the
related Supplement. On each Business Day on which funds are on deposit in
the Special Funding Account and on which no Series is in an Accumulation
Period or Amortization Period, the Servicer shall determine the amount (if
any) by which the Transferor Amount exceeds the Required Transferor Amount
on such date and shall instruct the Trustee to withdraw any such excess
from the Special Funding Account and pay such amount to the Holders of the
Transferor Certificates; provided, however, that, if an Accumulation Period
or Amortization Period has commenced and is continuing with respect to one
or more outstanding Series, any funds on deposit in the Special Funding
Account shall be treated as Shared Principal Collections and shall be
allocated and distributed in accordance with Section 4.4 and the terms of
each Supplement.
Section 4.3 Collections and Allocations.
(a) The Servicer will apply or will instruct the Trustee to
apply all funds on deposit in the Collection Account as described in this
Article IV and in each 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 Supplement, but notwithstanding
anything else in this Agreement to the contrary, for so long as either (i)
Holdings remains the Servicer and Holdings or an Affiliate of Holdings
acceptable to the Rating Agencies maintains a short-term rating of not less
than A-1 by Standard & Poor and P-1 by Moody's and a certificate of deposit
rating of not less than A-1 by Standard & Poor's and P-1 by Moody's and no
Pay Out Event or Reinvestment Event shall have occurred or (ii) Holdings
shall have otherwise made arrangements which satisfy the Rating Agency
Condition, 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 not later than 1:00 P.M., New York City time, on the Transfer Date
following the Monthly Period with respect to which such deposit relates.
In the event that neither of the foregoing conditions is satisfied, then
Holdings shall commence making daily deposits of Collections into the
Collection Account as provided above, within five Business Days of the date
on which neither of such conditions shall have been satisfied. Subject to
the first proviso in Section 4.4, but notwithstanding anything else in this
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
Investor Certificateholders or to any Series Enhancer pursuant to the terms
of any Supplement or Enhancement Agreement 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. 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) Collections of Finance Charge Receivables and Principal
Receivables and Defaulted Amounts will be allocated to each Series on the
basis of the Series Allocable Finance Charge Collections of such Series,
Series Allocable Principal Collections of such Series and Series Allocable
Defaulted Amount of such Series and amounts so allocated to any Series will
not, except as specified in the related Supplement, be available to the
Investor Certificateholders of any other Series. Allocations of the
foregoing amounts between the Certificateholders' Interest and the
Transferor's Interest, among the Series and among the Classes in any
Series, shall be set forth in the related Supplement or Supplements.
Section 4.4 Shared Principal Collections. 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, if any, with respect to each such Series and
(b) the Servicer shall withdraw from the Collection Account and pay to the
Holders of the Transferor Certificates an amount equal to the excess, if
any, of (x) the aggregate amount for all outstanding Series of Collections
of Principal Receivables which the related Supplements specify are to be
treated as "Shared Principal Collections" for such Distribution Date over
(y) the aggregate amount for all outstanding Series which the related
Supplements specify are "Principal Shortfalls" for such Series and for such
Distribution Date; provided, however, that if the Transferor Amount as of
such Distribution Date (determined after giving effect to the Principal
Receivables or Participation Interests transferred to the Trust on such
date) is less than the Required Transferor Amount, the Servicer will not
distribute to the Holders of the Transferor Certificates any such amounts
that otherwise would be distributed to the Holders of the Transferor
Certificates, but shall deposit such funds in the Special Funding Account.
The Transferor may, at its option, instruct the Trustee to deposit Shared
Principal Collections which are otherwise payable to the Holders of the
Transferor Certificates pursuant to the provisions set forth above into the
Special Funding Account.
Section 4.5 Additional Withdrawals from the Collection Account.
On or before the Determination Date with respect to any Monthly Period, the
Servicer shall determine the amounts payable to each Account Owner with
respect to such Monthly Period under the applicable Receivables Purchase
Agreement in respect of amounts on deposit in the Collection Account that
were not transferred to the Trust hereunder, and the Servicer shall
withdraw such amounts from the Collection Account and pay such amount to
the applicable Account Owner.
Section 4.6 Allocation of Trust Assets to Series or Groups. To
the extent so provided in the Supplement for any Series or in an amendment
to this Agreement executed pursuant to subsection 13.1(a), Receivables
conveyed to the Trust pursuant to Section 2.1 and Receivables or
Participation Interests conveyed to the Trust pursuant to Section 2.9 or
any Participation Interest Supplement, and all Collections received with
respect to thereto may be allocated or applied in whole or in part to one
or more Series or Groups as may be provided in such Supplement or
amendment, provided, however, that any such allocation or application shall
be effective only upon satisfaction of the following conditions:
(i) on or before the fifth Business Day immediately preceding
such allocation, the Servicer shall have given the Trustee and the
Rating Agency written notice of such allocation;
(ii) the Rating Agency Condition shall have been satisfied with
respect to such allocation; and
(iii) the Servicer shall have delivered to the 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 Supplement or amendment 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 Supplement or amendment.
[END OF ARTICLE IV]
ARTICLE V
DISTRIBUTIONS AND REPORTS TO
CERTIFICATEHOLDERS
Distributions shall be made to, and reports shall be provided to,
Certificateholders as set forth in the applicable Supplement. The identity
of the Certificateholders with respect to distributions and reports shall
be determined according to the immediately preceding Record Date.
[END OF ARTICLE V]
ARTICLE VI
THE CERTIFICATES
Section 6.1 The Certificates. The Investor Certificates of any
Series or Class shall be issued in fully registered form (including any
uncertificated Series or Class which is registered in the Certificate
Register, the "Registered Certificates") unless the applicable Supplement
provides, in accordance with then applicable laws, that such Certificates
be issued in bearer form ("Bearer Certificates") with attached interest
coupons and a special coupon (collectively the "Coupons"). Such Registered
Certificates or Bearer Certificates, as the case may be, shall be
substantially in the form of the exhibits with respect thereto attached to
the applicable Supplement. The Transferor Certificate will be issued in
registered form, substantially in the form of Exhibit A, and shall upon
issue, be executed and delivered by the Transferor to the Trustee for
authentication and redelivery as provided in Section 6.2. If specified in
any Supplement, the Investor Certificates of any Series or Class shall be
issued upon initial issuance as one or more certificates evidencing the
aggregate original principal amount of such Series or Class as described in
Section 6.10. The Transferor Certificate shall be issued as a single
certificate. Each Certificate shall be executed by manual or facsimile
signature on behalf of the Transferor by its President or any Vice
President or by any attorney-in-fact duly authorized to execute such
Certificate on behalf of any such officer. Certificates 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 Transferor shall
not be rendered invalid, notwithstanding that such individual 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
Certificates 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 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. Bearer Certificates shall be
dated the Series Issuance Date. All Registered Certificates and
Transferor's Certificates shall be dated the date of their authentication.
Section 6.2 Authentication of Certificates. The Trustee shall,
at the written direction of the Transferor, authenticate and deliver the
Investor Certificates of each Series and Class that are issued upon
original issuance to or upon the order of the Transferor against payment to
the Transferor of the purchase price therefor. The Trustee shall
authenticate and deliver the Transferor Certificate to the Transferor
simultaneously with the execution of this Agreement. If specified in the
related Supplement for any Series or Class, the Trustee shall authenticate
and deliver outside the United States the Global Certificate that is issued
upon original issuance thereof.
Section 6.3 New Issuances.
(a) The Transferor may from time to time direct the Trustee, on
behalf of the Trust, to issue one or more new Series of Investor
Certificates. The Investor Certificates of all outstanding Series shall be
equally and ratably entitled as provided herein to the benefits of this
Agreement without preference, priority or distinction, all in accordance
with the terms and provisions of this Agreement and the applicable
Supplement except, with respect to any Series or Class, as provided in the
related Supplement.
(b) On or before the Series Issuance Date relating to any new
Series, the parties hereto will execute and deliver a Supplement which will
specify the Principal Terms of such new Series. The Trustee shall execute
the Supplement and the Transferor shall execute the Investor Certificates
of such Series and deliver such Investor Certificates to the Trustee for
authentication. In connection with the issuance of a new Series of
Investor Certificates or at any other time, a Transferor may surrender its
Transferor Certificate to the Trustee in exchange for a newly issued
Transferor Certificate and a second certificate (a "Supplemental
Certificate"), the terms of which shall be defined in a supplement (a
"Supplemental Certificate Supplement") to this Agreement (which
Supplemental Certificate Supplement shall be subject to Section 13.1 to the
extent that it amends any of the terms of this Agreement) to be delivered
to or upon the order of the Transferor. 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 and the Transferor may tender the
Transferor Certificate to the Trustee pursuant to the terms and conditions
set forth in such Supplement in exchange for (i) one or more newly issued
Series of Investor Certificates and (ii) a reissued Transferor Certificate
(an "Investor Exchange"). The issuance of any such Investor Certificates
or Supplemental Certificate shall be subject to satisfaction of the
following conditions:
(i) on or before the fifth day immediately preceding the Series
Issuance Date or Transferor Certificate surrender and exchange, as the
case may be, the Transferor shall have given the Trustee, the Servicer
and the Rating Agency notice (unless such notice requirement is
otherwise waived) of such issuance and the Series Issuance Date or the
Transferor Certificate surrender and exchange, as the case may be;
(ii) the Transferor shall have delivered to the Trustee the
related Supplement or Supplemental Certificate Supplement, as
applicable, in form satisfactory to the Trustee, executed by each
party hereto (other than the Trustee and the Holder of the
Supplemental Certificate, if any);
(iii) the Transferor shall have delivered to the Trustee any
related Enhancement Agreement executed by each of the parties thereto,
other than the Trustee;
(iv) the Trustee shall have received confirmation from the
Rating Agency that the Rating Agency Condition shall have been
satisfied with respect to such issuance or the Transferor Certificate
surrender and exchange, as the case may be;
(v) such issuance or surrender and exchange, as the case may be,
will not result in any Adverse Effect and the Transferor shall have
delivered to the Trustee an Officer's Certificate, dated the Series
Issuance Date or the date of such surrender and exchange, as the case
may be, to the effect that the Transferor reasonably believes that
such issuance or such surrender and exchange, as the case may be, will
not, based on the facts known to such officer at the time of such
certification, have an Adverse Effect;
(vi) the Transferor shall have delivered to the Trustee (with a
copy to the Rating Agency) a Tax Opinion, dated the Series Issuance
Date or the date of such surrender and exchange, as the case may be,
with respect to such issuance or surrender and exchange, respectively;
and
(vii) the aggregate amount of Principal Receivables theretofore
conveyed to the Trust as of the Series Issuance Date or the date of
such surrender and exchange, as the case may be, shall be greater than
the Required Minimum Principal Balance as of the Series Issuance Date
or the date of such surrender and exchange, as the case may be, and
after giving effect to such issuance or such surrender and exchange,
respectively and the Transferor Amount shall be greater than or equal
to the Required Transferor Amount.
Any Supplemental Certificate held by any Person, and any Investor
Certificate held by the Transferor at any time after the date of its
initial issuance, may be transferred or exchanged only upon the delivery to
the 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.
Section 6.4 Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall cause to be kept at the Corporate Trust
Office a register (the "Certificate Register") in which, subject to such
reasonable regulations as it may prescribe, a transfer agent and registrar
(which may be the Trustee) (the "Transfer Agent and Registrar") shall
provide for the registration of the Registered Certificates and of
transfers and exchanges of the Registered Certificates as herein provided.
The Transfer Agent and Registrar shall initially be the Trustee and any
co-transfer agent and co-registrar chosen by the Transferor and acceptable
to the Trustee, including, if and so long as any Series or Class is listed
on the Luxembourg Stock Exchange and such exchange shall so require, a
co-transfer agent and co-registrar in Luxembourg. Any reference in this
Agreement to the Transfer Agent and Registrar shall include any co-transfer
agent and registrar unless the context requires otherwise.
The Trustee may revoke such appointment and remove any Transfer
Agent and Registrar if the Trustee determines in its sole discretion that
such transfer Agent and Registrar failed to perform its obligations under
this Agreement in any material respect. Any Transfer Agent and Registrar
shall be permitted to resign as Transfer Agent and Registrar upon 30 days'
notice to the Transferor, the Trustee and the Servicer; provided, however,
that such resignation shall not be effective and such Transfer Agent and
Registrar shall continue to perform its duties as Transfer Agent and
Registrar until the Trustee has appointed a successor Transfer Agent and
Registrar reasonably acceptable to the Transferor.
Subject to subsection (c) below, upon surrender for registration
of transfer or exchange of any Registered Certificate at any office or
agency of the Transfer Agent and Registrar maintained for such purpose, one
or more new Registered Certificates (of the same Series and Class) in
authorized denominations of like aggregate fractional undivided interests
in the Certificateholders' Interest shall be executed, authenticated and
delivered, in the name of the designated transferee or transferees.
At the option of a Registered Certificateholder, subject to
subsection (c) below and subject to the provisions of any Supplement or
other agreement establishing the terms of an instrument, Registered
Certificates (of the same Series and Class) may be exchanged for other
Registered Certificates of authorized denominations of like aggregate
fractional undivided interests in the Certificateholders' Interest, upon
surrender of the Registered Certificates to be exchanged at any such office
or agency; Registered Certificates, including Registered Certificates
received in exchange for Bearer Certificates, may not be exchanged for
Bearer Certificates. At the option of the Holder of a Bearer Certificate,
subject to applicable laws and regulations, Bearer Certificates may be
exchanged for other Bearer Certificates or Registered Certificates (of the
same Series and Class) of authorized denominations of like aggregate
fractional undivided interests in the Certificateholders' Interest, upon
surrender of the Bearer Certificates to be exchanged at an office or agency
of the Transfer Agent and Registrar located outside the United States.
Each Bearer Certificate surrendered pursuant to this Section shall have
attached thereto all unmatured Coupons; provided that any Bearer
Certificate so surrendered after the close of business on the Record Date
preceding the relevant payment date or distribution date after the expected
final payment date need not have attached the Coupon relating to such
payment date or distribution date (in each case, as specified in the
applicable Supplement).
The preceding provisions of this Section notwithstanding, the
Trustee or the Transfer Agent and Registrar, as the case may be, shall not
be required to register the transfer of or exchange any Certificate for a
period of 15 days preceding the due date for any payment with respect to
the Certificate.
Whenever any Investor Certificates are so surrendered for
exchange, the Transferor shall execute, the Trustee shall authenticate and
the Transfer Agent and Registrar shall deliver (in the case of Bearer
Certificates, outside the United States) the Investor Certificates which
the Investor 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 or the Transfer Agent and
Registrar duly executed by the Investor Certificateholder or the attorney-
in-fact thereof 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 such transfer or
exchange.
All Investor Certificates (together with any Coupons) surrendered
for registration of transfer and exchange or for payment shall be canceled
and disposed of in a manner satisfactory to the Trustee. The Trustee shall
cancel and destroy any Global Certificate upon its exchange in full for
Definitive Euro-Certificates and shall deliver a certificate of destruction
to the Transferor. Such certificate shall also state that a certificate or
certificates of a Foreign Clearing Agency to the effect referred to in
Section 6.13 was received with respect to each portion of the Global
Certificate exchanged for Definitive Euro-Certificates.
The Transferor shall execute and deliver to the Trustee Bearer
Certificates and Registered Certificates in such amounts and at such times
as are necessary to enable the Trustee to fulfill its responsibilities
under this Agreement, each Supplement and the Certificates.
The interest of any Investor Certificateholder in any Receivable
shall not be transferable other than through the transfer of an Investor
Certificate, and except as provided in this Article VI, a Certificate shall
not be transferable or divisible.
(b) The Transfer Agent and Registrar will maintain at its
expense in the Borough of Manhattan, The City of New York, and, if and so
long as any Series or Class is listed on the Luxembourg Stock Exchange,
Luxembourg, an office or agency where Investor Certificates may be
surrendered for registration of transfer or exchange (except that Bearer
Certificates may not be surrendered for exchange at any such office or
agency in the United States or its territories and possessions).
(c) (i) Registration of transfer of Investor Certificates
containing a legend substantially to the effect set forth on Exhibit
G-1 shall be effected only if such transfer (x) is made pursuant to an
effective registration statement under the Act, or is exempt from the
registration requirements under the Act, and (y) is made to a Person
which is not an employee benefit plan, trust or account, including an
individual retirement account, that is subject to ERISA or that is
described in Section 4975(e)(1) of the Code or an entity whose
underlying assets include plan assets by reason of a plan's investment
in such entity (a "Benefit Plan"). In the event that registration of
a transfer is to be made in reliance upon an exemption from the
registration requirements under the Act, the transferor or the
transferee shall deliver, at its expense, to the Transferor, the
Servicer and the Trustee, an investment letter from the transferee,
substantially in the form of the investment and ERISA representation
letter attached hereto as Exhibit G-2, and no registration of transfer
shall be made until such letter is so delivered.
Investor Certificates issued upon registration or transfer of, or
Investor Certificates issued in exchange for, Investor Certificates
bearing the legend referred to above shall also bear such legend
unless the Transferor, the Servicer, the Trustee and the Transfer
Agent and Registrar receive an Opinion of Counsel, satisfactory to
each of them, to the effect that such legend may be removed.
Whenever an Investor Certificate containing the legend referred
to above is presented to the Transfer Agent and Registrar for
registration of transfer, the Transfer Agent and Registrar shall
promptly seek instructions from the Servicer regarding such transfer
and shall be entitled to receive instructions signed by a Servicing
Officer prior to registering any such transfer. The Transferor hereby
agrees to indemnify the Transfer Agent and Registrar and the Trustee
and to hold each of them harmless against any loss, liability or
expense incurred without negligence or bad faith on their part arising
out of or in connection with actions taken or omitted by them in
relation to any such instructions furnished pursuant to this clause
(i).
(ii) Registration of transfer of Investor Certificates
containing a legend to the effect set forth on Exhibit G-3 shall be
effected only if such transfer is made to a Person which is not a
Benefit Plan. By accepting and holding any such Investor Certificate,
an Investor Certificateholder shall be deemed to have represented and
warranted that it is not a Benefit Plan. By acquiring any interest in
a Book-Entry Certificate which contains such legend, a Certificate
Owner shall be deemed to have represented and warranted that it is not
a Benefit Plan.
(iii) If so requested by the Transferor, the Trustee will make
available to any prospective purchaser of Investor Certificates who so
requests, a copy of a letter provided to the Trustee by or on behalf
of the Transferor relating to the transferability of any Series or
Class to a Benefit Plan.
Section 6.5 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate (together, in the case of Bearer
Certificates, with all unmatured Coupons (if any) appertaining thereto) is
surrendered to the Transfer Agent and Registrar, or 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 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 Transferor shall execute, the Trustee shall authenticate and
the Transfer Agent and Registrar shall deliver (in the case of Bearer
Certificates, outside the United States), in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like tenor and aggregate fractional undivided interest. In connection with
the issuance of any new Certificate under this Section, the Trustee or the
Transfer Agent and Registrar may require the payment by the
Certificateholder 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 Transfer Agent
and Registrar) connected therewith. Any duplicate Certificate issued
pursuant to this Section 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 6.6 Persons Deemed Owners. The Trustee, the Paying
Agent, the Transfer Agent and Registrar, the Transferor, the Servicer and
any agent of any of them may (a) prior to due presentation of a Registered
Certificate for registration of transfer, treat the Person in whose name
any Registered Certificate is registered as the owner of such Registered
Certificate for the purpose of receiving distributions pursuant to the
terms of the applicable Supplement and for all other purposes whatsoever,
and (b) treat the bearer of a Bearer Certificate or Coupon as the owner of
such Bearer Certificate or Coupon for the purpose of receiving
distributions pursuant to the terms of the applicable Supplement and for
all other purposes whatsoever; and, in any such case, neither the Trustee,
the Paying Agent, the Transfer Agent and Registrar, the Transferor, the
Servicer nor any agent of any of them shall be affected by any notice to
the contrary. Notwithstanding the foregoing, in determining whether the
Holders of the requisite Investor Certificates have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Certificates owned by any of the Transferor, the Servicer, any other Holder
of the Transferor Certificate 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
Certificates which a Responsible Officer of the Trustee actually knows to
be so owned shall be so disregarded. 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 Certificates and that
the pledgee is not the Transferor, the Servicer, any other Holder of the
Transferor Certificate or any Affiliate thereof. None of the Transferor,
the Servicer, the Trustee, the Registrar or the Paying Agent will have any
responsibility or liability for any of the records relating to or on
account of beneficial ownership in Book-Entry Certificates or for
maintaining, supervising or reviewing records relating thereto.
Section 6.7 Appointment of Paying Agent. The Paying Agent shall
make distributions to Investor Certificateholders from the Collection
Account or applicable Series Account pursuant to the provisions of the
applicable Supplement and shall report the amounts of such distributions to
the Trustee. Any Paying Agent shall have the revocable power to withdraw
funds from the Collection Account or applicable Series Account for the
purpose of making the distributions referred to above. The Trustee may
revoke such power and remove the Paying Agent if the Trustee determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement or any Supplement in any material respect.
The Paying Agent shall initially be the Trustee and any co-paying agent
chosen by the Transferor and acceptable to the Trustee, including, if and
so long as any Series or Class is listed on the Luxembourg Stock Exchange
and such exchange so requires, a co-paying agent in Luxembourg or another
western European city. In the event that any Paying Agent shall resign,
the Trustee shall appoint a successor to act as Paying Agent. The Trustee
shall act as Paying Agent until a successor is appointed. The Trustee
shall cause each successor or additional Paying Agent to execute and
deliver to the Trustee an instrument in which such successor or additional
Paying Agent shall agree with the Trustee that it 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 Investor Certificateholders. The Paying Agent
shall return all unclaimed funds to the Trustee and upon removal shall also
return all funds in its possession to the Trustee. The provisions of
Sections 11.1, 11.2, 11.3 and 11.5 shall apply to the Trustee also in its
role as Paying Agent, for so long as the Trustee shall act as Paying Agent.
Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
Section 6.8 Access to List of Registered 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, a list in such form as the Servicer or the Paying Agent may
reasonably require, of the names and addresses of the Registered
Certificateholders. If any Holder or group of Holders of Investor
Certificates of any Series or all outstanding Series, as the case may be,
evidencing not less than 10% of the aggregate unpaid principal amount of
such Series or all outstanding Series, as applicable (the "Applicants"),
apply to the Trustee, and such application states that the Applicants
desire to communicate with other Investor Certificateholders with respect
to their rights under this Agreement or any Supplement 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 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
Registered Certificateholders of such Series or all outstanding Series, as
applicable, held by the Trustee, 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.
With respect to any Series of Registered Certificates, every
Registered Certificateholder, by receiving and holding a Registered
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 Registered Certificateholders hereunder,
regardless of the sources from which such information was derived.
Section 6.9 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 the
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 certificate of
authentication executed on behalf of the Trustee by an authenticating
agent. Each authenticating agent must be acceptable to the Transferor 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 power or any further act on the part
of the Trustee or such authenticating agent. An authenticating agent may
at any time resign by giving notice of resignation to the Trustee and to
the Transferor. The Trustee may at any time terminate the agency of an
authenticating agent by giving notice of termination to such authenticating
agent and to the Transferor. 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 the Transferor, 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 and the Transferor. The Transferor agrees to pay
to each authenticating agent from time to time reasonable compensation for
its services under this Section. The provisions of Sections 11.1, 11.2 and
11.3 shall be applicable to any authenticating agent.
(c) Pursuant to an appointment made under this Section, 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 6.10 Book-Entry Certificates. Unless otherwise
specified in the related Supplement for any Series or Class, the Investor
Certificates, upon original issuance, shall be issued in the form of one or
more master Investor Certificates representing the Book-Entry Certificates,
to be delivered to the Clearing Agency, by, or on behalf of, the
Transferor. The Investor Certificates shall initially be registered on the
Certificate Register in the name of the Clearing Agency or its nominee, and
no Certificate Owner will receive a definitive certificate representing
such Certificate Owner's interest in the Investor Certificates, except as
provided in Section 6.12. Unless and until definitive, fully registered
Investor Certificates ("Definitive Certificates") have been issued to the
applicable Certificate Owners pursuant to Section 6.12 or as otherwise
specified in any such Supplement:
(a) the provisions of this Section shall be in full force and
effect;
(b) the Transferor, the Servicer and the Trustee may deal with
the Clearing Agency and the Clearing Agency Participants for all purposes
(including the making of distributions) as the authorized representatives
of the respective Certificate Owners;
(c) to the extent that the provisions of this Section conflict
with any other provisions of this Agreement, the provisions of this Section
shall control; and
(d) the rights of the respective Certificate Owners shall be
exercised only through the Clearing Agency and the 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,
unless and until Definitive Certificates are issued pursuant to Section
6.12, the Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit distributions of principal and
interest on the related Investor Certificates to such Clearing Agency
Participants.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Investor
Certificateholders evidencing a specified percentage of the aggregate
unpaid principal amount of Investor Certificates, such direction or consent
may be given by Certificate Owners (acting through the Clearing Agency and
the Clearing Agency Participants) owning Investor Certificates evidencing
the requisite percentage of principal amount of Investor Certificates.
Section 6.11 Notices to Clearing Agency. Whenever any notice or
other communication is required to be given to Investor Certificateholders
of any Series or Class with respect to which Book-Entry Certificates have
been issued, unless and until Definitive Certificates shall have been
issued to the related Certificate Owners, the Trustee shall give all such
notices and communications to the applicable Clearing Agency.
Section 6.12 Definitive Certificates. If Book-Entry
Certificates have been issued with respect to any Series or Class and (a)
the Transferor advises the Trustee that the Clearing Agency is no longer
willing or able to discharge properly its responsibilities under the
Depository Agreement with respect to such Series or Class and the Trustee
or the Transferor is unable to locate a qualified successor, (b) the
Transferor, at its option, advises the Trustee that it elects to terminate
the book-entry system with respect to such Series or Class through the
Clearing Agency or (c) after the occurrence of a Servicer Default,
Certificate Owners of such Series or Class evidencing not less than 50% of
the aggregate unpaid principal amount of such Series or Class advise the
Trustee and the Clearing Agency through the Clearing Agency Participants
that the continuation of a book-entry system with respect to the Investor
Certificates of such Series or Class through the Clearing Agency is no
longer in the best interests of the Certificate Owners with respect to such
Certificates, then the Trustee shall notify all Certificate Owners of such
Certificates, through the 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 any such
Certificates by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency for registration, the Trustee shall
authenticate and deliver such Definitive Certificates. Neither the
Transferor 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 such Definitive
Certificates 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 such
Definitive Certificates as Investor Certificateholders hereunder.
Section 6.13 Global Certificate; Exchange Date.
(a) If specified in the related Supplement for any Series or
Class, the Investor Certificates for such Series or Class initially will be
issued in the form of a single temporary global certificate (the "Global
Certificate") in bearer form, without interest coupons, in the denomination
of the entire aggregate principal amount of such Series or Class and
substantially in the form set forth in the exhibit with respect thereto
attached to the related Supplement. The Global Certificate will be
executed by the Transferor and authenticated and delivered by the Trustee
or its agent to the Common Depositary outside the United States for credit
to the respective accounts of the Foreign Clearing Agencies and may be
exchanged as described in this Section 6.13 for Definitive Euro-
Certificates in definitive form substantially in the form set forth in the
exhibit with respect thereto attached to the related Supplement (the
"Definitive Euro-Certificates"). The "Definitive-Euro-Certificates" shall
be Bearer Certificates for all purposes of this Agreement and the
provisions of this Agreement and the related Supplement relating to
Definitive Euro-Certificates shall apply to the Definitive Euro-
Certificates in all respects. The Definitive Euro-Certificates shall be
issued in the minimum denominations specified in the related Supplement.
(b) No interest will be paid in respect of any beneficial
interest in the Global Certificates and no exchange of an interest in the
Global Certificates for a Definitive Euro- Certificate may occur until the
person entitled to receive such Definitive Euro- Certificate provides
certification as to non-U.S. beneficial ownership as provided in this
Section 6.13. Until the Global Certificate with respect to a Series or
Class is exchanged for a Definitive Euro-Certificate for such Series or
Class, any holder thereof shall be entitled to receive payments of interest
thereon only to the extent that the person appearing in the records of the
Foreign Clearing Agency as the beneficial owner thereof or a portion
thereof has delivered to such Foreign Clearing Agency a certification and
the Foreign Clearing Agency has delivered to the Trustee a certification,
in each case pursuant to this Section 6.13 hereof on or prior to the date
of distribution.
(c) The Manager shall, upon its determination of the Global
Certificate Exchange Date, so advise the Trustee, the Transferor, the
Common Depositary and each Foreign Clearing Agency forthwith. Without
unnecessary delay, but in any event not later than the Global Certificate
Exchange Date, the Transferor will execute and deliver to the Trustee at
its London office or its designated office outside the United States
Definitive Euro-Certificates in an aggregate principal amount equal to the
entire Initial Invested Amount of such Series or Class. All Definitive
Euro- Certificates so issued and delivered will have Coupons attached. The
Global Certificate may be exchanged for an equal aggregate amount of Bearer
Certificates only on or after the Global Certificate Exchange Date.
Notwithstanding the foregoing, no holder of an interest in a Global
Certificate will have any right to receive a Bearer Certificate in exchange
for such interest prior to the Global Certificate Exchange Date and prior
to certification (in the manner provided in this Section 6.13) that either
such holder is not a United States person or is otherwise a permitted
holder.
(d) The Bearer Certificates shall be authenticated and delivered
by the Trustee or its agent in exchange for only that portion of the Global
Certificate, in respect of which there shall have been presented to the
Trustee by the applicable Foreign Clearing Agency, a certificate,
substantially in the form set forth in the exhibit with respect thereto
attached to the related Supplement, that the Trustee does not know to be
false, to the effect that such Foreign Clearing Agency has received from or
in respect of a person entitled to a particular principal amount of the
Investor Certificates of the applicable Series or Class (as shown by its
records), a certificate from such person in or substantially in the form
set forth in the exhibit with respect thereto attached to the related
Supplement. Upon receipt of such certification, the Trustee shall cause
the Global Certificates to be endorsed in accordance with subsection
6.13(d) below.
(e) On an exchange of the whole of a Global Certificate, such
Global Certificate shall be surrendered to the Trustee or its agent at its
office in London, England for cancellation and shall be returned by the
Trustee or its agent to the Transferor. On an exchange of only part of a
Global Certificate, details of such exchange shall be entered by the Paying
Agent with respect to the Series on behalf of the Trust, and further
exchanges may be effected, without the issue of a new Global Certificate,
by the Trust or its agent endorsing the schedule attached to the Global
Certificate previously issued to reflect a decrease in the aggregate
principal amount of the Global Certificate.
(f) Upon any such exchange of all or a portion of a Global
Certificate for a Bearer Certificate or Bearer Certificates, such Global
Certificate shall be endorsed by or on behalf of the Trustee to reflect the
reduction in the principal amount by an amount equal to the aggregate
principal amount of such Bearer Certificate or Bearer Certificates. Until
so exchanged in full, the Global Certificates will in all respects be
entitled to the same benefits under this Agreement and the related
Supplement as Bearer Certificates authenticated and delivered pursuant to
this Agreement and the related Supplement except that the beneficial owners
of such Global Certificate will not be entitled to receive payments of
interest until they have exchanged their beneficial interests in such
Global Certificate for Bearer Certificates.
(g) The delivery to the Trustee by a Foreign Clearing Agency of
any written statement referred to above may be relied upon by the
Transferor and the Trustee as conclusive evidence that a corresponding
certification or certifications has or have been delivered to such Foreign
Clearing Agency pursuant to the terms of the related Supplement.
(h) The Bearer Certificates to be delivered in exchange for the
Global Certificates shall be delivered only outside the United States.
(i) Any exchange as provided for in this Section shall be made
free of charge to the holders and the beneficial owners of the Global
Certificates and to the beneficial owners of the Bearer Certificates issued
in exchange, except that a person receiving a Bearer Certificate must bear
the cost of insurance, postage, transportation and the like in the event
that such person does not receive such Bearer Certificate in person at the
offices of the applicable Foreign Clearing Agency.
(j) Until the exchange of the Global Certificates as aforesaid,
the bearer thereof shall in all respects be entitled to the same benefits
as if it were the bearer of Bearer Certificates and the Coupons attached
thereto.
Section 6.14 Meetings of Certificateholders.
(a) If at the time any Bearer Certificates are issued and
outstanding with respect to any Series or Class to which any meeting
described below relates, the Servicer or the Trustee may at any time call a
meeting of Investor Certificateholders of any Series or Class or of all
Series, to be held at such time and at such place as the Servicer or the
Trustee, as the case may be, shall determine, for the purpose of approving
a modification of or amendment to, or obtaining a waiver of any covenant or
condition set forth in, this Agreement, any Supplement or the Investor
Certificates or of taking any other action permitted to be taken by
Investor Certificateholders hereunder or under any Supplement. Notice of
any meeting of Investor Certificateholders, setting forth the time and
place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be given in accordance with Section 13.5, the first
mailing and publication to be not less than 20 nor more than 180 days prior
to the date fixed for the meeting. To be entitled to vote at any meeting
of Investor Certificateholders a Person shall be (i) a Holder of one or
more Investor Certificates of the applicable Series or Class or (ii) a
person appointed by an instrument in writing as proxy by the Holder of one
or more such Investor Certificates. The only persons who shall be entitled
to be present or to speak at any meeting of Investor Certificateholders
shall be the persons entitled to vote at such meeting and their counsel and
any representatives of the Transferor, the Servicer and the Trustee and
their respective counsel.
(b) At a meeting of Investor Certificateholders, persons
entitled to vote Investor Certificates evidencing a majority of the
aggregate unpaid principal amount of the applicable Series or Class or all
outstanding Series, as the case may be, shall constitute a quorum. No
business shall be transacted in the absence of a quorum, unless a quorum is
present when the meeting is called to order. In the absence of a quorum at
any such meeting, the meeting may be adjourned for a period of not less
than 10 days; in the absence of a quorum at any such meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days; at the reconvening of any meeting further adjourned for lack of a
quorum, the persons entitled to vote Investor Certificates evidencing at
least 25% of the aggregate unpaid principal amount of the applicable Series
or Class or all outstanding Series, as the case may be, shall constitute a
quorum for the taking of any action set forth in the notice of the original
meeting. Notice of the reconvening of any adjourned meeting shall be given
as provided above except that such notice must be given not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage of the aggregate principal amount of the outstanding applicable
Investor Certificates which shall constitute a quorum.
(c) Any Investor Certificateholder who has executed an
instrument in writing appointing a person as proxy shall be deemed to be
present for the purposes of determining a quorum and be deemed to have
voted; provided that such Investor Certificateholder shall be considered as
present or voting only with respect to the matters covered by such
instrument in writing. Subject to the provisions of Section 13.1, any
resolution passed or decision taken at any meeting of Investor
Certificateholders duly held in accordance with this Section shall be
binding on all Investor Certificateholders whether or not present or
represented at the meeting.
(d) The holding of Bearer Certificates shall be proved by the
production of such Bearer Certificates or by a certificate, satisfactory to
the Servicer, executed by any bank, trust company or recognized securities
dealer, wherever situated, satisfactory to the Servicer. Each such
certificate shall be dated and shall state that on the date thereof a
Bearer Certificate bearing a specified serial number was deposited with or
exhibited to such bank, trust company or recognized securities dealer by
the Person named in such certificate. Any such certificate may be issued
in respect of one or more Bearer Certificates specified therein. The
holding by the Person named in any such certificate of any Bearer
Certificate specified therein shall be presumed to continue for a period of
one year from the date of such certificate unless at the time of any
determination of such holding (i) another certificate bearing a later date
issued in respect of the same Bearer Certificate shall be produced, (ii)
the Bearer Certificate specified in such certificate shall be produced by
some other Person or (iii) the Bearer Certificate specified in such
certificate shall have ceased to be outstanding. The appointment of any
proxy shall be proved by having the signature of the Person executing the
proxy guaranteed by any bank, trust company or recognized securities dealer
satisfactory to the Trustee.
(e) The Trustee shall appoint a temporary chair of the meeting.
A permanent chair and a permanent secretary of the meeting shall be elected
by vote of the Holders of Investor Certificates evidencing a majority of
the aggregate unpaid principal amount of Investor Certificates of the
applicable Series or Class or all outstanding Series, as the case may be,
represented at the meeting. No vote shall be cast or counted at any
meeting in respect of any Investor Certificate challenged as not
outstanding and ruled by the chair of the meeting to be not outstanding.
The chair of the meeting shall have no right to vote except as an Investor
Certificateholder or proxy. Any meeting of Investor Certificateholders
duly called at which a quorum is present may be adjourned from time to
time, and the meeting may be held as so adjourned without further notice.
(f) The vote upon any resolution submitted to any meeting of
Investor Certificateholders shall be by written ballot on which shall be
subscribed the signatures of Investor Certificateholders or proxies and on
which shall be inscribed the serial number or numbers of the Investor
Certificates held or represented by them. The permanent chair of the
meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and
file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Investor Certificateholders shall be
prepared by the secretary of the meeting and there shall be attached to
said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more persons having knowledge
of the facts setting forth a copy of the notice of the meeting and showing
that said notice was published as provided above. The record shall be
signed and verified by the permanent chair and secretary of the meeting and
one of the duplicates shall be delivered to the Servicer and the other to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
Section 6.15 Uncertificated Classes. Notwithstanding anything
to the contrary contained in this Article VI or in Article XII, unless
otherwise specified in any Supplement any provisions contained in this
Article VI and in Article XII relating to the registration, form,
execution, authentication, delivery, presentation, cancellation and
surrender of Certificates shall not be applicable to any uncertificated
Certificates.
[END OF ARTICLE VI]
ARTICLE VII
OTHER MATTERS RELATING TO THE TRANSFEROR
Section 7.1 Liability of the Transferor. The Transferor shall
be severally, and not jointly, liable for all obligations, covenants,
representations and warranties of the Transferor arising under or related
to this Agreement or any Supplement. Except as provided in the preceding
sentence, the Transferor shall be liable only to the extent of the
obligations specifically undertaken by it in its capacity as the
Transferor.
Section 7.2 Merger or Consolidation of, or Assumption of the
Obligations of, the Transferor.
(a) The Transferor shall not dissolve, liquidate, consolidate
with or merge into any other entity or convey, transfer or sell its
properties and assets substantially as an entirety to any Person unless:
(i) (x) the entity formed by such consolidation or into which the
Transferor is merged or the Person which acquires by conveyance,
transfer or sale the properties and assets of the Transferor
substantially as an entirety shall be, if the Transferor 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 savings association, a national banking association, a bank or
other entity which is not eligible to be a debtor in a case under
Title 11 of the United States Code or is a special purpose entity
whose powers and activities are limited to substantially the same
degree as provided in the Transferor LLC Agreement and, if the
Transferor is not the surviving entity, shall expressly assume, by an
agreement supplemental hereto, executed and delivered to the Trustee,
in form reasonably satisfactory to the Trustee, the performance of
every covenant and obligation of the Transferor hereunder; and (y) the
Transferor or the surviving entity, as the case may be, has delivered
to the Trustee (with a copy to the Rating Agency) an Officer's
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or sale and such
supplemental agreement comply with this Section, that such
supplemental agreement is a valid and binding obligation of such
surviving entity enforceable against such surviving entity in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
from time to time in effect or general principles of equity, and that
all conditions precedent herein provided for relating to such
transaction have been complied with; and
(ii) the Rating Agency Condition shall have been satisfied with
respect to such consolidation, merger, conveyance or transfer.
(b) Except as permitted by subsection 2.7(c) and subsection
6.3(b), the obligations, rights or any part thereof of the Transferor
hereunder shall not be assignable nor shall any Person succeed to such
obligations or rights of the Transferor hereunder except (i) for
conveyances, mergers, consolidations, assumptions, sales or transfers in
accordance with the provisions of the foregoing paragraph and (ii) for
conveyances, mergers, consolidations, assumptions, sales or transfers to
other entities (1) which the Transferor and the Servicer determine will not
result in an Adverse Effect, (2) which meet the requirements of clause (ii)
of the preceding paragraph and (3) for which such purchaser, transferee,
pledgee or entity shall expressly assume, in an agreement supplemental
hereto, executed and delivered to the Trustee in writing in form
satisfactory to the Trustee, the performance of every covenant and
obligation of the Transferor thereby conveyed.
Section 7.3 Limitations on Liability of the Transferor. Subject
to Section 7.1, neither the Transferor nor any of the directors, officers,
employees, incorporators or agents of the Transferor acting in such
capacities shall be under any liability to the Trust, the Trustee, the
Certificateholders, any Series Enhancer or any other Person for any action
taken or for refraining from the taking of any action in good faith in such
capacities pursuant to this Agreement, it being expressly understood that
such liability is expressly waived and released as a condition of, and
consideration for, the execution of this Agreement and any Supplement and
the issuance of the Certificate; provided, however, that this provision
shall not protect the Transferor 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
reckless disregard of obligations and duties hereunder. The Transferor and
any director, officer, employee or agent of the Transferor may rely in good
faith on any document of any kind prima facie properly executed and
submitted by any Person (other than the Transferor) respecting any matters
arising hereunder.
Section 7.4 Transferor Authorized to Execute Registration
Statements and Reports on Behalf of the Trust. The Trustee hereby
authorizes the Transferor to execute, on behalf of the Trust and file or
cause to be filed with the Securities and Exchange Commission any
registration statements prepared in connection with the issuance of
Investor Certificates and any periodic or annual reports prepared in
connection with the issuance of Investor Certificates or the delivery of
the monthly servicer's certificates required by Section 3.4.
[END OF ARTICLE VII]
ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER
Section 8.1 Liability of the Servicer. The Servicer shall be
liable under this Article only to the extent of the obligations
specifically undertaken by the Servicer in its capacity as Servicer.
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 entity or, except as provided herein, convey, transfer
or sell its properties and assets substantially as an entirety to any
Person, unless:
(a) the entity formed by such consolidation or into which the
Servicer is merged or the Person which acquires by conveyance,
transfer or sale the properties and assets of the Servicer
substantially as an entirety shall be, if the Servicer is not the
surviving entity, an entity 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, such 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;
(b) the Servicer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or sale comply with this
Section and that all conditions precedent herein provided for relating
to such transaction have been complied with;
(c) the Servicer shall have given the Rating Agencies
notice of such consolidation, merger or transfer or assets; and
(d) the entity 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 an Eligible Servicer.
Section 8.3 Limitation on Liability of the Servicer and Others.
Except as provided in Section 8.4 and Section 11.5, neither the Servicer
nor any of the managers, directors, officers, employees or agents of the
Servicer in its capacity as Servicer shall be under any liability to the
Trust, the Trustee, the Certificateholders, any Series Enhancer or any
other Person for any action taken or for refraining from the taking of any
action in good faith 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 reckless disregard of obligations
and duties hereunder. The Servicer and any member, director, officer,
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 (other
than the Servicer) respecting any matters arising hereunder. The Servicer
shall not be under any obligation to appear in, prosecute or defend any
legal action which is not incidental to its duties as Servicer in
accordance with this Agreement and which in its reasonable judgment may
involve it in any expense or liability. The Servicer may, in its sole
discretion, undertake any such legal action which it may deem necessary or
desirable for the benefit of the Certificateholders with respect to this
Agreement and the rights and duties of the parties hereto and the interests
of the Certificateholders hereunder.
Section 8.4 Servicer Indemnification of the Trust and the
Trustee. The Servicer shall indemnify and hold harmless the Trust and the
Trustee (including the Trustee in its capacity as Transfer Agent and
Registrar or as Paying Agent) and its directors, officers, employees and
agents from and against any loss, liability, expense, damage or injury
suffered or sustained by reason of (a) any acts or omissions of the
Servicer with respect to the Trust pursuant to this Agreement or (b) the
administration by the Trustee of the Trust (in the case of clause (a) or
(b), other than any such loss, liability, expense, damage, or injury as may
arise from the negligence or wilful misconduct of the Trustee), including
any judgment, award, settlement, reasonable attorneys' fees and other costs
or expenses incurred in connection with the defense of any action,
proceeding or claim. Indemnification pursuant to this Section shall not be
payable from the Trust Assets. The Servicer's obligations under this
Section 8.4 shall survive the termination of this Agreement or the Trust or
the earlier removal or resignation of the Trustee.
Section 8.5 Resignation of the Servicer. The Servicer shall not
resign from the obligations and duties hereby imposed on it except (a) upon
determination that (i) the performance of its duties hereunder is no longer
permissible 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 or (b) upon the assumption, by
an agreement supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, of the obligations and duties of the
Servicer hereunder by any of its Affiliates or by any other entity the
appointment of which shall have satisfied the Rating Agency Condition and,
in either case, qualifies as an Eligible Servicer. Any determination
permitting the resignation of the Servicer shall be evidenced (i) as to
clause (a) above, by an Opinion of Counsel to such effect delivered to the
Trustee and (ii) as to clause (b) above, by an Officer's Certificate and an
Opinion of Counsel delivered to the Trustee (with a copy to the Rating
Agency) each stating that such assignment by Holdings and assumption by
such Affiliate and such supplemental agreement comply with this Section,
that such supplemental agreement is a valid and binding obligation of such
Affiliate enforceable against it in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally from time to time in effect or general principles of
equity, and that all conditions precedent herein relating to such
transaction have been complied with. No 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 hereof. If within 120 days of the date of the determination that the
Servicer may no longer act as Servicer under clause (a) above the Trustee
is unable to appoint a Successor Servicer, the Trustee shall serve as
Successor Servicer. Notwithstanding the foregoing, the Trustee shall, if
it is legally unable so to act, petition a court of competent jurisdiction
to appoint any established institution qualifying as an Eligible Servicer
as the Successor Servicer hereunder. The Trustee shall give prompt notice
to the Rating Agency and each Series Enhancer upon the appointment of a
Successor 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 Certificateholders or by applicable statutes or
regulations to review such documentation, such access being afforded
without charge but only (a) upon reasonable request, (b) during normal
business hours, (c) subject to the Servicer's normal security and
confidentiality procedures and (d) at reasonably accessible offices in the
continental United States designated by the Servicer. Nothing in this
Section shall derogate from the obligation of the Transferor, the Trustee
and 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 as a result of such obligation
shall not constitute a breach of this Section.
Section 8.7 Delegation of Duties. The Servicer may enter into
servicing agreements with one or more subservicers (including any Affiliate
of the Servicer and any Account Originator) to perform all or a portion of
the servicing functions on behalf of the Servicer with respect to the
Accounts and the Receivables in accordance with the Credit Card Guidelines
and this Agreement; provided that the Servicer shall remain obligated and
be liable to the Trustee for the benefit of the Certificateholders for
servicing and administering the Accounts and the Receivables in accordance
with the provisions of this Agreement without diminution of such obligation
and liability by virtue of the appointment of such subservicer, to the same
extent and under the same terms and conditions as if the Servicer alone
were servicing and administering such Receivables. The fees and expenses
of the subservicer (if any) will be as agreed between the Servicer and its
subservicer and neither the Trustee nor the Certificateholders will have
any responsibility therefor. All actions of a subservicer taken pursuant
to such a subservicer agreement will be taken as an agent of the Servicer
with the same force and effect as though performed by the Servicer. Any
delegation of duties by the Servicer permitted hereunder shall not relieve
the Servicer of its liability and responsibility with respect to such
duties, and shall not constitute a resignation of the Servicer within the
meaning of subsection 8.5. It is understood and agreed by the parties
hereto that the Servicer may delegate certain of its duties hereunder to
First Data Resources, Inc. ("FDR").
Section 8.8 Examination of Records. The Transferor and the
Servicer shall indicate generally in their computer files or other records
that the Receivables arising in the Accounts have been conveyed to the
Trustee, on behalf of the Trust, pursuant to this Agreement for the benefit
of the Certificateholders. The Transferor and the Servicer shall, prior to
the sale or transfer to a third party of any receivable held in its
custody, examine its computer records and other records to determine that
such receivable is not, and does not include, a Receivable.
[END OF ARTICLE VIII]
ARTICLE IX
INSOLVENCY EVENTS
Section 9.1 Rights upon the Occurrence of an Insolvency Event.
(a) If either PFR or PFRF 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,
marshalling of assets and liabilities or similar proceedings of or relating
to PFR or PFRF, as applicable, of or relating to all or substantially all
of PFR's or PFRF's property, as applicable, 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, marshalling 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 PFR or PFRF, as
applicable, any such action shall have remained undischarged or unstayed
for a period of 60 days; or PFR or PFRF, as applicable, 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 60 days of such filing) to the filing of, a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization,
receivership or conservatorship statute, make an assignment for the benefit
of its creditors or voluntarily suspend payment of its obligations (any
such act or occurrence with respect to any Person being an "Insolvency
Event"), the Transferor shall on the day any such Insolvency Event occurs
(the "Appointment Date"), immediately cease to transfer Principal
Receivables to the Trust and shall promptly give notice to the Trustee
thereof. Notwithstanding any cessation of the transfer to the Trust of
additional Principal Receivables, Principal Receivables transferred to the
Trust prior to the occurrence of such Insolvency Event, Collections in
respect of such Principal Receivables and Finance Charge Receivables
(whenever created) accrued in respect of such Principal Receivables shall
continue to be a part of the Trust Assets. Upon the Appointment Date, this
Agreement and the Trust shall terminate, subject to the liquidation,
winding-up, insolvency, bankruptcy, reorganization and dissolution
procedures described below. Within 15 days of the Appointment Date, the
Trustee shall (i) publish a notice in an Authorized Newspaper that an
Insolvency Event has occurred, that the Trust has terminated and that the
Trustee intends to sell, dispose of or otherwise liquidate the Receivables
on commercially reasonable terms and in a commercially reasonable manner
and (ii) give notice to Certificateholders describing the provisions of
this Section and requesting instructions from such Holders. Unless the
Trustee shall have received instructions within 90 days from the date
notice pursuant to clause (i) above is first published from (x) Holders of
Investor Certificates evidencing more than 50% of the aggregate unpaid
principal amount of each Series or, with respect to any Series with two or
more Classes, of each Class, (y) the Transferor, and any Holder of a
Supplemental Certificate and any permitted assignee or successor under
Section 7.2, and (z) any other Person specified in any related Supplement
to the effect that such Persons disapprove of the liquidation of the
Receivables and wish to reconstitute the Trust pursuant to the terms of
this Agreement (as amended in connection with such reconstitution), the
Trustee shall promptly sell, dispose of or otherwise liquidate the
Receivables in a commercially reasonable manner and on commercially
reasonable terms, which may include the solicitation of competitive bids.
The Trustee may obtain a prior determination from any such conservator,
receiver or liquidator of the Transferor that the terms and manner of any
proposed sale, disposition or liquidation are commercially reasonable. The
provisions of this Section 9.1 and any provisions in a Supplement regarding
an Insolvency Event shall not be deemed to be mutually exclusive.
(b) The proceeds from the sale, disposition or liquidation of
the Receivables and any Participation Interests pursuant to paragraph (a)
("Insolvency Proceeds") shall be immediately deposited in the Collection
Account. The Trustee shall determine conclusively the amount of the
Insolvency Proceeds which are deemed to be Finance Charge Receivables and
Principal Receivables, allocating Insolvency Proceeds to Finance Charge
Receivables and Principal Receivables in the same proportion as the amount
of Finance Charge Receivables and Principal Receivables bear to one another
on the prior Determination Date. The Insolvency Proceeds shall be
allocated and distributed to Investor Certificateholders in accordance with
the terms of each Supplement.
[END OF ARTICLE IX]
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 to give notice to the Trustee to make
such payment, transfer or deposit on or before the date occurring five
Business Days after the date such payment, transfer or deposit or such
instruction or notice is required to be made or given, as the case may be,
under the terms of this Agreement or any Supplement;
(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 or any Supplement which has an Adverse
Effect and which continues unremedied for a period of 60 days after the
date on which 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 Holders of Investor Certificates evidencing not less
than 10% of the aggregate unpaid principal amount of all Investor
Certificates (or, with respect to any such failure that does not relate to
all Series, 10% of the aggregate unpaid principal amount of all Series to
which such failure relates); or the Servicer shall assign or delegate its
duties under this Agreement, except as permitted by Sections 3.1(a), 8.2,
8.5 or 8.7;
(c) any representation, warranty or certification made by the
Servicer in this Agreement or any Supplement or in any certificate
delivered pursuant to this Agreement or any Supplement shall prove to have
been incorrect when made, which has an Adverse Effect on the rights of the
Investor Certificateholders of any Series (which determination shall be
made without regard to whether funds are then available pursuant to any
Series Enhancement) and which Adverse Effect continues for a period of 60
days after the date on which notice thereof, 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
not less than 10% of the aggregate unpaid principal amount of all Investor
Certificates (or, with respect to any such representation, warranty or
certification that does not relate to all Series, 10% of the aggregate
unpaid principal amount of all Series to which such representation,
warranty or certification relates); or
(d) the Servicer shall consent to the appointment of a
bankruptcy trustee or conservator or receiver or liquidator in any
bankruptcy proceeding or other insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating
to the Servicer or of or relating to all or substantially all its property,
or 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
a conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings, or the
winding-up or liquidation of its affairs, shall have been entered against
the Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or the Servicer shall
admit in writing its inability to pay its debts generally as they become
due, file a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, make any assignment for the benefit
of its creditors or voluntarily suspend payment of its obligations;
then, in the event of any Servicer Default, so long as the Servicer Default
shall not have been remedied, either the Trustee, or the Holders of
Investor Certificates evidencing more than 50% of the aggregate unpaid
principal amount of all Investor Certificates, by notice then given to the
Servicer (and to the Trustee if given by the Investor Certificateholders)
(a "Termination Notice"), may terminate all but not less than all the
rights and obligations of the Servicer as Servicer under this Agreement;
provided, however, if within 60 days of receipt of a Termination Notice the
Trustee does not receive any bids from Eligible Servicers in accordance
with subsection 10.2(c) to act as a Successor Servicer and receives an
Officer's Certificate of the Transferor to the effect that the Servicer
cannot in good faith cure the Servicer Default which gave rise to the
Termination Notice, the Trustee shall grant a right of first refusal to the
Transferor which would permit the Transferor at its option to purchase the
Certificateholders' Interest on the Distribution Date in the next calendar
month.
The purchase price for the Certificateholders' Interest shall be
equal to the sum of the amounts specified therefor with respect to each
outstanding Series in the related Supplement. The Transferor shall notify
the Trustee and the Rating Agency prior to the Record Date for the
Distribution Date of the purchase if it is exercising such right of first
refusal. If the Transferor exercises such right of first refusal, the
Transferor shall deposit the purchase price into the Collection Account not
later than 1:00 P.M., New York City time, on such Distribution Date in
immediately available funds. The purchase price shall be allocated and
distributed to Investor Certificateholders in accordance with the terms of
each Supplement. The Transferor shall provide notice to the Rating Agency
of the exercise by it of such right of first refusal.
After receipt by the Servicer of a Termination Notice, and on the
date that a Successor Servicer is 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 the Successor Servicer (a "Service
Transfer"); 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 Service Transfer. The Servicer agrees to cooperate with the 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 the Collection Account, or which shall thereafter be
received with respect to the Receivables, and in assisting the Successor
Servicer. The Servicer shall within 20 Business Days 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 shall
require the Servicer to disclose to the Successor Servicer information of
any kind which the Servicer deems to be confidential, the Successor
Servicer shall be required to enter into such customary licensing and
confidentiality agreements as the Servicer shall deem reasonably necessary
to protect its interests.
Notwithstanding the foregoing, a delay in or failure of
performance referred to in paragraph (a) above for a period of 10 Business
Days after the applicable grace period or under paragraph (b) or (c) above
for a period of 60 Business Days after the applicable grace period, shall
not constitute a Servicer Default if such delay or failure could not be
prevented by the exercise of reasonable diligence by the Servicer and such
delay or failure was caused by an act of God or the public enemy, acts of
declared or undeclared war, public disorder, rebellion or sabotage,
epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or
similar causes. The preceding sentence shall not relieve the Servicer from
using its reasonable best efforts to perform its obligations in a timely
manner in accordance with the terms of this Agreement and the Servicer
shall provide the Trustee, the Transferor and any Series Enhancer with an
Officer's Certificate giving prompt notice of such failure or delay by it,
together with a description of its efforts so to perform its obligations.
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 or 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 an
Eligible Servicer as 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. In the event that a
Successor Servicer has not been appointed or 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. The Trustee may delegate any of its servicing
obligations to an Affiliate or agent in accordance with Sections 3.1(b) and
8.7. Notwithstanding the foregoing, the Trustee shall, if it is legally
unable so to act, petition a court of competent jurisdiction to appoint any
established institution qualifying as an Eligible Servicer as the Successor
Servicer hereunder. The Trustee shall give prompt notice to the Rating
Agency and each Series Enhancer upon the appointment of a Successor
Servicer.
(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.
(c) In connection with any Termination Notice, the 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 not in excess of the
aggregate Servicing Fees for all Series plus the sum of the amounts with
respect to each Series and with respect to each Distribution Date equal to
any Collections of Finance Charge Receivables allocable to Investor
Certificateholders of such Series which are payable to the Holders of the
Transferor Certificates after payment of all amounts owing to the Investor
Certificateholders of such Series with respect to such Distribution Date or
required to be deposited in the applicable Series Accounts with respect to
such Distribution Date and any amounts required to be paid to any Series
Enhancer for such Series with respect to such Distribution Date pursuant to
the terms of any Enhancement Agreement; provided, however, that the Holders
of the Transferor Certificates shall be responsible for payment of their
portion of such aggregate Servicing Fees and all other such amounts in
excess of such aggregate Servicing Fees. Each holder of any of the
Transferor's Certificates agrees that, if Holdings (or any Successor
Servicer) is terminated as Servicer hereunder, the portion of the
Collections in respect of Finance Charge Receivables that the Transferor is
entitled to receive pursuant to this Agreement or any Supplement shall be
reduced by an amount sufficient to pay the Transferor's share of the
compensation of the Successor Servicer.
(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 the Transferor and, without limitation, the Transferor 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 the Transferor in effecting
the termination of the responsibilities and rights of the Successor
Servicer to conduct servicing of the Receivables. The Successor Servicer
shall transfer its electronic records relating to the Receivables to
Holdings or its designee in such electronic form as it may reasonably
request and shall transfer all other records, correspondence and documents
to it in the manner and at such times as it shall reasonably request. To
the extent that compliance with this Section shall require the Successor
Servicer to disclose to Holdings information of any kind which the
Successor Servicer deems to be confidential, Holdings 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. Within five
Business Days after the Servicer becomes aware of any Servicer Default, the
Servicer shall give notice thereof to the Trustee, the Rating Agency and
each Series Enhancer and the Trustee shall give notice to the Investor
Certificateholders. Upon any termination or appointment of a Successor
Servicer pursuant to this Article, the Trustee shall give prompt notice
thereof to the Investor Certificateholders.
[END OF ARTICLE X]
ARTICLE XI
THE TRUSTEE
Section 11.1 Duties of Trustee.
(a) The Trustee, prior to the occurrence of a Servicer Default
of which a Responsible Officer of the Trustee has actual knowledge 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 and no implied duties or covenants by the
Trustee shall be read into this Agreement. If a Servicer Default to the
actual knowledge of a Responsible Officer of the Trustee 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 their exercise as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(b) The Trustee may conclusively rely on and shall be fully
protected in acting on, or in refraining from acting in accord with, any
resolution, certificate, statement, instrument, Officer's Certificate,
opinion, report, notice, request, consent, order, appraisal, approval, bond
or other paper or document furnished to the Trustee pursuant to this
Agreement and 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.
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
substantially conform to the requirements of this Agreement. The Trustee
shall give prompt written notice to the Transferor and the Servicer 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 Investor Certificateholders to take any
action pursuant to this Agreement. If within 5 Business Days the
Transferor or the Servicer shall not have cured such material lack of
conformity, the Trustee shall provide notice of such material lack of
conformity to the Investor Certificateholders.
(c) Subject to paragraph (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 willful
misconduct. Consistent with the foregoing and for purposes of
clarification, it is understood and agreed by the parties hereto that:
(i) the Trustee shall not be 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 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 more than 50% of the aggregate unpaid principal amount of
all Investor Certificates (or, with respect to any such action that
does not relate to all Series, 50% of the aggregate unpaid principal
amount of the Investor Certificates of all Series to which such action
relates) 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
(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 subsection 10.1 (a) or (b) nor with knowledge of a Pay
Out Event or Reinvestment Event unless a Responsible Officer of the
Trustee obtains actual knowledge of such failure or event or the
Trustee receives written notice of such failure or event from the
Servicer or any Holders of Investor Certificates evidencing not less
than 10% of the aggregate unpaid principal amount of all Investor
Certificates (or, with respect to any such failure that does not
relate to all Series, 10% of the aggregate unpaid principal amount of
the Investor Certificates of all Series to which such failure
relates).
(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 the 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 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 actions reasonably likely to impair the interests
of the Trust in any Receivable now existing or hereafter created or to
impair the value of any Receivable now existing or hereafter created.
(f) Except as expressly provided in this Agreement, the Trustee
shall have no power to vary the corpus of the Trust including by (i)
accepting any substitute obligation for a Receivable initially assigned to
the Trust under Section 2.1 or 2.9, (ii) adding any other investment,
obligation or security to the Trust or (iii) withdrawing from the Trust any
Receivables.
(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 upon its knowledge thereof to perform
such obligation, duty or agreement in the manner so required.
Section 11.2 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 11.1:
(a) the Trustee may consult with counsel and any written advice
of counsel or an 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 written
advice of counsel or an Opinion of Counsel;
(b) 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;
provided, however, that nothing contained herein shall relieve the Trustee
of the obligations, upon the occurrence of a Servicer Default (which has
not been cured or waived) 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 his or her own affairs;
(c) 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;
(d) 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, appraisal,
approval, bond or other paper or document believed by it to be genuine,
unless requested in writing so to do by Holders of Investor Certificates
evidencing more than 25% of the aggregate unpaid principal amount of all
Investor Certificates (or, with respect to any such matters that do not
relate to all Series, 25% of the aggregate unpaid principal amount of the
Investor Certificates of all Series to which such matters relate);
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses, or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such cost, expense, or liability as a condition to so proceed;
(e) 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, nominee and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent,
attorney, custodian or nominee appointed with due care by it hereunder;
(f) 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 the Transferor with its representations and warranties or for any other
purpose;
(g) whether or not therein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 11.2;
(h) the Trustee shall have no liability with respect to the acts
or omissions of the Servicer (except and to the extent the Servicer is the
Trustee), including, acts or omissions in connection with the servicing,
management or administration of Receivables; calculations made by the
Servicer whether or not reported to the Trustee; and deposits into or
withdrawals from any accounts or funds established pursuant to the terms of
this Agreement; and
(i) in the event that the Trustee is also acting as Paying Agent
or Transfer Agent and Registrar hereunder, the rights and protections
afforded to the Trustee pursuant to this Article XI shall also be afforded
to such Paying Agent, Transfer Agent and Registrar.
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 any Supplement or of the Certificates (other than the
certificate of authentication on the Certificates) or of any Receivable or
related document or as to the perfection or priority of any security
interest therein or as to the efficacy of the Trust. The Trustee shall not
be accountable for the use or application by the Transferor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Transferor in respect of the
Receivables or deposited in or withdrawn from the Collection Account, any
Series Accounts or any other accounts hereafter established to effectuate
the transactions contemplated by this Agreement and in accordance with the
terms of this Agreement.
Section 11.4 Trustee May Own Certificates. Subject to any
restrictions that may otherwise be imposed by Section 406 of ERISA or
Section 4975(e) of the Code, 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 The Servicer To Pay Trustee's Fees and Expenses.
The 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
the Servicer will pay or reimburse the Trustee upon its request for all
reasonable expenses (including, without limitation, expenses incurred in
connection with notices or other communications to Certificateholders),
disbursements and advances incurred or made by the Trustee in accordance
with any of the provisions of this Agreement or any Enhancement Agreement
(including the reasonable fees and expenses of its agents, any co-trustee
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 shall not apply to expenses,
disbursements and advances made or incurred by the Trustee in its capacity
as Successor Servicer, which shall be paid out of the Servicing Fee. The
Servicer's covenant to pay the expenses, disbursements and advances
provided for in this Section shall survive the termination of this
Agreement or the earlier 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 or any state thereof authorized under
such laws to exercise corporate trust powers, have a net worth of at least
$50,000,000, be subject to supervision or examination by Federal or state
authority and maintain any credit or deposit rating required by any Rating
Agency (which shall be Baa3, in the case of Xxxxx'x unless otherwise
notified, BBB- in the case of Standard & Poor's unless otherwise notified
and BBB- in the case of Fitch unless otherwise notified) or any higher
credit or deposit rating required in connection with the issuance of a
particular Series. 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,
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 case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, 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 the Transferor
and the Servicer. Upon receiving such notice of resignation, the
Transferor 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
appointment 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 request therefor by the Servicer, or if at any time the Trustee shall
be legally unable to act, or shall be adjudged a bankrupt or insolvent, or
if 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 the Servicer may 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.
(c) Any resignation or removal of the Trustee and appointment of
successor trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor
trustee as provided in Section 11.8.
(d) No Trustee under this Agreement shall be personally liable
for any action or omission of any successor trustee.
Section 11.8 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 11.7
shall execute, acknowledge and deliver to the Transferor, to the Servicer
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, at the expense of the Servicer, to the successor
trustee all documents or copies thereof and statements held by it
hereunder; and the Transferor 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 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 11.6.
(c) Notwithstanding any other provisions herein, the appointment
of a successor trustee shall not be effective unless the Rating Agency
Condition shall have been satisfied.
(d) Upon acceptance of appointment by a successor trustee as
provided in this Section, such successor trustee shall provide notice of
such succession hereunder to all Certificateholders and the Servicer shall
provide such notice to the Rating Agency and each Series Enhancer.
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 Requirements of Law of any
jurisdiction in which any 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, 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 law of any
jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as Successor Servicer) 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. 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 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 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 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 Servicer shall prepare or shall cause to
be prepared any tax returns required to be filed by the Trust and shall
remit such returns to the Trustee for signature (if it is determined that
the Trustee is required to sign such returns) at least five days before
such returns are due to be filed; the Trustee shall promptly sign such
returns and deliver such returns after signature to the Servicer and such
returns shall be filed by the Servicer. The Servicer in accordance with
the terms of each Supplement shall also prepare or shall cause to be
prepared all tax information required by law to be distributed to Investor
Certificateholders. The Trustee upon request, will furnish the Servicer
with all such information known to the Trustee 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 (except as provided
in Section 8.4) be liable for any liabilities, costs or expenses of the
Trust or the Holders of Investor Certificates arising under any tax law,
including without limitation Federal, state, local or foreign income or
excise taxes or any other tax imposed or measured by income (or any
interest or penalty with respect thereto or arising from a failure to
comply therewith).
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.
Section 11.13 Suits for Enforcement.
(a) If a Servicer Default shall occur and be continuing, the
Trustee, in its discretion may, subject to the provisions of Sections 11.1
and 11.14, proceed to protect and enforce its rights and the rights of the
Certificateholders under this Agreement by 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 in aid of the
execution of any power granted in this Agreement 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.
(b) Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Certificateholder any plan of reorganization, arrangement, adjustment or
composition affecting the Investor Certificates or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Certificateholder in any such proceeding.
Section 11.14 Rights of Certificateholders To Direct Trustee.
Except as otherwise provided in the applicable Supplement, holders of
Investor Certificates evidencing more than 50% of the aggregate unpaid
principal amount of all Investor Certificates (or, with respect to any
remedy, trust or power that does not relate to all Series, 50% of the
aggregate unpaid principal amount of the Investor Certificates of all
Series to which such remedy, trust or power relates) 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 after being advised by counsel determines that the action so
directed may not lawfully be taken, or if a Responsible Officer or Officers
of the Trustee in good faith shall determine that the proceedings so
directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Investor 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 of the Investor
Certificateholders.
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 State of New York;
(ii) the Trustee has full power, authority and right to
execute, deliver and perform this Agreement and each Supplement, and
has taken all necessary action to authorize the execution, delivery
and performance by it of this Agreement and each Supplement;
(iii) this Agreement and each Supplement has been duly executed
and delivered by the Trustee;
(iv) the Trustee meets the eligibility requirements set forth in
Section 11.6; and
(v) the Trustee will not use any office, place of business,
agents or employees of the Trustee in the State of Florida to act for, or
on behalf of, the Trust or the Trustee (in its capacity as Trustee of the
Trust), except to the extent that the Trustee first provides an opinion (at
the sole expense of the Transferor) of counsel satisfactory to the Servicer
stating that any such activities proposed to be carried on in Florida will
not cause the Trust to be subject to any Florida income or franchise tax.
Section 11.16 Maintenance of Office or Agency. The Trustee will
maintain at its expense an office or agency (the "Corporate Trust Office")
where notices and demands to or upon the Trustee in respect of the
Certificates and this Agreement may be served in the State of New York.
The Trustee maintains its Corporate Trust Office at 000 Xxxxxxx Xxxxxx 00X,
Xxx Xxxx, XX 00000, as such office and will give prompt notice to the
Servicer and to Investor Certificateholders of any change in the location
of the Certificate Register or any such office or agency.
[END OF ARTICLE XI]
ARTICLE XII
TERMINATION
Section 12.1 Termination of Trust. The Trust and the respective
obligations and responsibilities of the Transferor, the Servicer and the
Trustee created hereby (other than the obligation of the Trustee to make
payments to Investor Certificateholders as hereinafter set forth) shall
terminate, except with respect to the duties described in Section 8.4 and
subsection 12.2(b), upon the earlier of (i) December 31, 2059, (ii) at the
option of the Transferor, the day following the Distribution Date on which
the Invested Amount for each Series is zero and (iii) the time provided in
Section 9.1.
Section 12.2 Final Distribution.
(a) The Servicer shall give the Trustee at least 30 days' prior
notice of the Distribution Date on which the Investor Certificateholders of
any Series or Class may surrender their Investor Certificates for payment
of the final distribution on and cancellation of such Investor Certificates
(or, in the event of a final distribution resulting from the application of
Section 2.6, 9.1 or 10.1, notice of such Distribution Date promptly after
the Servicer has determined that a final distribution will occur, if such
determination is made less than 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 covering the period during the
then-current calendar year 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 Investor Certificateholders, the Trustee
shall provide notice to Investor Certificateholders 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 Investor Certificates 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 Investor Certificates at the office
or offices therein specified (which, in the case of Bearer Certificates,
shall be outside the United States). 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) Notwithstanding a final distribution to the Investor
Certificateholders of any Series or Class (or the termination of the
Trust), except as otherwise provided in this paragraph, all funds then on
deposit in the Collection Account and any Series Account allocated to such
Investor Certificateholders shall continue to be held in trust for the
benefit of such Investor Certificateholders and the Paying Agent or the
Trustee shall pay such funds to such Investor Certificateholders upon
surrender of their Investor Certificates, if certificated (and any excess
shall be paid in accordance with the terms of any Enhancement Agreement).
In the event that all such Investor Certificateholders shall not surrender
their Investor Certificates for cancellation within six months after the
date specified in the notice from the Trustee described in paragraph (a),
the Trustee shall give a second notice to the remaining such Investor
Certificateholders to surrender their Investor Certificates for
cancellation and receive the final distribution with respect thereto (which
surrender and payment, in the case of Bearer Certificates, shall be outside
the United States). If within one year after the second notice all such
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 such Investor
Certificateholders concerning surrender of their Investor Certificates, 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 Investor
Certificateholders. The Trustee and the Paying Agent shall pay to the
Transferor any monies held by them for the payment of principal or interest
that remains unclaimed for two years. After payment to the Transferor,
Investor Certificateholders entitled to the money must look to the
Transferor for payment as general creditors unless an applicable abandoned
property law designates another Person.
(c) In the event that the Invested Amount with respect to any
Series is greater than zero on its Series Termination Date (after giving
effect to deposits and distributions otherwise to be made on such Series
Termination Date), the Trustee will sell or cause to be sold on such Series
Termination Date an amount of Principal Receivables (or interests therein)
equal to 110% of the Invested Amount with respect to such Series on such
Series Termination Date plus related Finance Charge Receivables (after
giving effect to such deposits and distributions); provided, however, that
in no event shall such amount exceed the product of (i) the aggregate
Principal Receivables on such Series Termination Date and (ii) a fraction
the numerator of which is the product of (x) the Adjusted Invested Amount
for such Series and (y) the Transferor's Percentage for such Series and the
denominator of which is the sum of the numerators with respect to all
Series. The proceeds (the "Termination Proceeds") from such sale shall be
immediately deposited into the Collection Account for such Series. The
Termination Proceeds shall be allocated and distributed to Investor
Certificateholders of such Series in accordance with the terms of the
applicable Supplement.
Section 12.3 The Transferor's Termination Rights. Upon the
termination of the Trust pursuant to Section 12.1 and the surrender of the
Transferor Certificates, the Trustee shall sell, assign and convey to the
Holders of the Transferor Certificates or any of their designees, without
recourse, representation or warranty, all right, title and interest of the
Trust in the Receivables, whether then existing or thereafter created, all
monies due or to become due and all amounts received with respect thereto
(including all moneys then held in the Collection Account or any Series
Account) and all proceeds thereof, except for amounts held by the Trustee
pursuant to subsection 12.2(b). The Trustee shall execute and deliver such
instruments of transfer and assignment, in each case without recourse, as
shall be reasonably requested by the Transferor to vest in the Holders of
the Transferor Certificates or any of their designees all right, title and
interest which the Trust had in the Receivables.
[END OF ARTICLE XII]
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Amendment; Waiver of Past Defaults.
(a) This Agreement or any Supplement may be amended from time to
time (including in connection with the issuance of a Supplemental
Certificate, conveyance of a Participation Interest, allocation of assets
pursuant to Section 4.6, or to change the definition of Monthly Period,
Determination Date or Distribution Date) by the Servicer, the Transferor
and the Trustee, by a written instrument signed by each of them, without
the consent of any of the Certificateholders, provided that (i) an Opinion
of Counsel for the Transferor (which Opinion of Counsel may, as to factual
matters, rely upon Officer's Certificates of the Transferor or the
Servicer) is addressed and delivered to the Trustee, dated the date of any
such amendment, to the effect that the conditions precedent to any such
amendment have been satisfied, (ii) the Transferor shall have delivered to
the Trustee an Officer's Certificate, dated the date of any such Amendment,
stating that the Transferor reasonably believes that such amendment will
not have an Adverse Effect and (iii) the Rating Agency Condition shall have
been satisfied with respect to any such amendment.
(b) This Agreement or any Supplement may also be amended from
time to time (including in connection with the issuance of a Supplemental
Certificate) by the Servicer, the Transferor and the Trustee, with the
consent of the Holders of Investor Certificates evidencing not less than
66-2/3% of the aggregate unpaid principal amount of the Investor
Certificates of all affected Series for which the Transferor 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 any Supplement or of
modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall (i) reduce in any manner the amount
of or delay the timing of any distributions to (changes in Pay Out Events
or Reinvestment Events that decrease the likelihood of the occurrence
thereof shall not be considered delays in the timing of distributions for
purposes of this clause) be made to Investor Certificateholders or deposits
of amounts to be so distributed or the amount available under any Series
Enhancement without the consent of each affected Certificateholder, (ii)
change the definition of or the manner of calculating the interest of any
Investor Certificateholder without the consent of each affected Investor
Certificateholder, (iii) reduce the aforesaid percentage required to
consent to any such amendment without the consent of each Investor
Certificateholder, or (iv) adversely affect the rating of any Series or
Class by any Rating Agency without the consent of the Holders of Investor
Certificates of such Series or Class evidencing not less than 66-2/3% of
the aggregate unpaid principal amount of the Investor Certificates of such
Series or Class; provided, further however, that the Transferor shall have
delivered to the Trustee a Tax Opinion to the Trustee with respect to any
such amendment prior to the effectiveness thereof.
(c) Promptly after the execution of any such amendment or
consent (other than an amendment pursuant to paragraph (a)), the Trustee
shall furnish notification of the substance of such amendment to each
Investor Certificateholder, and the Servicer shall furnish notification of
the substance of such amendment to the Rating Agency and each Series
Enhancer.
(d) It shall not be necessary for the consent of Investor
Certificateholders under this Section 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.
(e) Notwithstanding anything in this Section to the contrary, no
amendment may be made to this Agreement or any Supplement which would
adversely affect in any material respect the interests of any Series
Enhancer without the consent of such Series Enhancer.
(f) Any Supplement executed in accordance with the provisions of
Section 6.3 shall not be considered an amendment to this Agreement for the
purposes of this Section.
(g) The Holders of Investor Certificates evidencing more than
66-2/3% of the aggregate unpaid principal amount of the Investor
Certificates of each Series or, with respect to any Series with two or more
Classes, of each Class (or, with respect to any default that does not
relate to all Series, 66-2/3% of the aggregate unpaid principal amount of
the Investor Certificates 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 Certificateholders, waive any default by the
Transferor 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 Investor Certificateholders 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 waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the
extent expressly so waived. The Servicer shall provide written notice to
the Rating Agencies of any waiver pursuant to this subsection 13.1(g).
(h) 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. In connection with the execution of any
amendment hereunder, the Trustee shall be entitled to receive the Opinion
of Counsel described in subsection 13.2(d).
Section 13.2 Protection of Right, Title and Interest to Trust.
(a) The Servicer shall cause this Agreement, all amendments and
supplements hereto and 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
Certificateholders and 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. The Transferor 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 30 days after the Transferor makes any change in its
name, identity or corporate structure which would make any financing
statement or continuation statement filed in accordance with paragraph (a)
seriously misleading within the meaning of Section 9-402(7) (or any
comparable provision) of the UCC, such Transferor 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 or ownership interest in the Receivables and the proceeds
thereof.
(c) The Transferor and the Servicer shall give the Trustee
prompt 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, 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 perfect or to continue the perfection of the Trust's
security interest in the Receivables and the proceeds thereof. The
Transferor and the Servicer shall at all times maintain each office from
which it services Receivables and its principal executive offices within
the United States.
(d) The Servicer shall deliver to the Trustee (i) upon the
execution and delivery of each amendment of this Agreement or any
Supplement, an Opinion of Counsel to the effect specified in Exhibit E-1;
(ii) on each date specified in subsection 2.9(c)(ix) with respect to
Aggregate Additions to be designated as Accounts, an Opinion of Counsel
substantially in the form of Exhibit E-2, (iii) semiannually, with respect
to any New Accounts included as Accounts, an Opinion of Counsel
substantially in the form of Exhibit E-2, (iv) on each Addition Date on
which any Participation Interests are to be included in the Trust pursuant
to subsection 2.9(a) or (b), an Opinion of Counsel covering the same
substantive legal issues addressed by Exhibits E-1 and E-2 but conformed to
the extent appropriate to relate to Participation Interests; and (v) on or
before March 31 of each year, beginning with March 31, 1998, an Opinion of
Counsel substantially in the form of Exhibit E-3.
Section 13.3 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Investor 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 Investor Certificateholder shall have any right to vote
(except as expressly provided in this Agreement) or in any manner otherwise
control the operation and management of the Trust, or the obligations of
the parties hereto, nor shall any Investor 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 Investor 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 Investor Certificateholder previously shall have
made, and unless the Holders of Investor Certificates evidencing more than
50% of the aggregate unpaid principal amount of all Investor Certificates
(or, with respect to any such action, suit or proceeding that does not
relate to all Series, 50% of the aggregate unpaid principal amount of the
Investor Certificates of all Series to which such action, suit or
proceeding relates) shall have made, a request to 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 such request and offer of
indemnity, shall have neglected or refused to institute any such action,
suit or proceeding; it being understood and intended, and being expressly
covenanted by each Investor Certificateholder with every other Investor
Certificateholder and the Trustee, that no one or more Investor
Certificateholders shall have any 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 holders of any other of the
Investor Certificates, or to obtain or seek to obtain priority over or
preference to any other such Investor 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 Investor Certificateholders
except as otherwise expressly provided in this Agreement. For the
protection and enforcement of the provisions of this Section, each and
every Investor 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 DELAWARE, 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 13.5 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 the Transferor, to Partners First
Receivables Funding, LLC, at 000 Xxxxxxxx Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000 -- Attention: Xxxx X. Xxxxxxxxx (facsimile no.
(000) 000-0000), (ii) in the case of the Servicer, to Partners First
Holdings, LLC, at 000 Xxxxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx
00000 -- Attention: Xxxx X. Xxxxxxxxx (facsimile no. (000) 000-0000), (iii)
in the case of the Trustee, the Paying Agent or Transfer Agent and
Registrar, to The Bank of New York at 000 Xxxxxxx Xxxxxx 00X, Xxx Xxxx, XX
00000, Attention: Corporate Trust Department (facsimile no (000) 000-0000
), (iv) in the case of Moody's, to 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: ABS Xxxxxxxxxx Xxxxxxxxxx, 0xx Xxxxx (facsimile no. (212)
553-4600), (v) in the case of Standard & Poor's, to 00 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Asset Backed Group, 15th Floor (facsimile no.
(000) 000-0000), (vi) in the case of Fitch, to Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx, Attention: Structured Finance Department (facsimile no.
(000) 000-0000), and (vii) to any other Person as specified in any
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 Certificates shall be given by first-class mail, postage
prepaid, at the address of such Holder as shown in the Certificate
Register. No Notice shall be required to be mailed to a Holder of Bearer
Certificates or Coupons but shall be given as provided below. Any Notice
so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Investor
Certificateholder receives such Notice. In addition, (a) if and so long as
any Series or Class is listed on the Luxembourg Stock Exchange and such
Exchange shall so require, any Notice to Investor Certificateholders shall
be published in an Authorized Newspaper of general circulation in
Luxembourg within the time period prescribed in this Agreement and (b) in
the case of any Series or Class with respect to which any Bearer
Certificates are outstanding, any Notice required or permitted to be given
to Investor Certificateholders of such Series or Class shall be published
in an Authorized Newspaper within the time period prescribed in this
Agreement.
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 provisions shall be deemed
severable from the remaining provisions of this Agreement and shall in no
way affect the validity or enforceability of the remaining provisions or of
the Certificates or the rights of the Certificateholders.
Section 13.7 Certificates Nonassessable and Fully Paid. It is
the intention of the parties to this Agreement that the Certificateholders
shall not be personally liable for obligations of the Trust, that the
interests in the Trust represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust or for any reason
whatsoever and that the Certificates upon authentication and delivery
thereof by the Trustee pursuant to Section 6.2 are and shall be deemed
fully paid.
Section 13.8 Further Assurances. The Transferor 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 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 13.9 Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, the Investor Certificateholders, the
Servicer, the Trustee, the Transferor, the Paying Agent, the Authenticating
Agent, the Transfer Agent, the Registrar, the Series Enhancers and each
Holder of a Supplemental Certificate shall not, prior to the date which is
one year and one day after the termination of this Agreement with respect
to the Trust or the Transferor, acquiesce, petition or otherwise invoke or
cause the Trust or the Transferor to invoke the process of any Governmental
Authority for the purpose of commencing or sustaining a case against the
Trust or the Transferor under any Federal or state bankruptcy, insolvency
or similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Trust or the
Transferor or any substantial part of its property or ordering the winding-
up or liquidation of the affairs of the Trust or the Transferor.
Section 13.10 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trustee or the
Certificateholders, 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 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 will
inure to the benefit of and be binding upon the parties hereto, the
Certificateholders, any Series Enhancer and their respective successors and
permitted assigns. Except as otherwise expressly provided in this
Agreement (including Section 7.4), 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 given by Certificateholders, such action or
Notice may be taken or given by any Certificateholder, unless such
provision requires a specific percentage of Certificateholders.
(b) Any Notice, request, authorization, direction, consent,
waiver or other act by the Holder of a Certificate shall bind such Holder
and every subsequent Holder of such Certificate and of any 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 or the Servicer in reliance thereon, whether or not notation of
such action is made upon such Certificate.
Section 13.14 Rule 144A Information. For so long as any of the
Investor Certificates of any Series or Class are "restricted securities"
within the meaning of Rule 144(a)(3) under the Act, each of the Transferor,
the Trustee, the Servicer and any Series Enhancer agree to cooperate with
each other to provide to any Investor Certificateholders of such Series or
Class and to any prospective purchaser of Certificates designated by such
an Investor Certificateholder, upon the request of such Investor
Certificateholder 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 Act.
Section 13.15 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 13.16 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
[END OF ARTICLE XIII]
IN WITNESS WHEREOF, the Transferor, the Servicer and the Trustee
have caused this Pooling and Servicing Agreement to be duly executed by
their respective officers as of the day and year first above written.
PARTNERS FIRST RECEIVABLES
FUNDING, LLC,
Transferor,
by /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer
PARTNERS FIRST HOLDINGS, LLC
Servicer,
by /s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President and Chief
Executive Officer
THE BANK OF NEW YORK,
Trustee
by /s/ Wuhan Xxxxxx
--------------------------------------
Name: Wuhan Xxxxxx
Title: Assistant Vice President
EXHIBIT A
FORM OF TRANSFEROR CERTIFICATE
THIS TRANSFEROR CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS TRANSFEROR CERTIFICATE
NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE
REGISTRATION PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM SUCH REGISTRATION PROVISIONS.
THIS TRANSFEROR CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED,
ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE
WITH THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
No. R-1 One Unit
PARTNERS FIRST CREDIT CARD MASTER TRUST
TRANSFEROR CERTIFICATE
THIS CERTIFICATE REPRESENTS AN INTEREST
IN CERTAIN ASSETS OF THE
PARTNERS FIRST CREDIT CARD MASTER TRUST
Evidencing an interest in a trust, the corpus of which consists primarily
of an interest in receivables generated from time to time in the ordinary
course of business in a portfolio of revolving credit card accounts
transferred by Partners First Receivables Funding, LLC (the "Transferor").
(Not an interest in or obligation of the Transferor
or any affiliate thereof)
This certifies that PARTNERS FIRST RECEIVABLES FUNDING, LLC
("PFRF") is the registered owner of a fractional interest in the assets of
Partners First Credit Card Master Trust, a trust organized under the laws
of Delaware (the "Trust") not allocated to the Certificateholders' Interest
or the interest of any Holder of a Supplemental Certificate pursuant to the
Pooling and Servicing Agreement dated as of January 29, 1998 (as amended
and supplemented, the "Agreement"), among PFRF, a Delaware limited
liability company, as Transferor, Partners First Holdings, LLC, as servicer
(the "Servicer"), and The Bank of New York, a New York banking corporation,
as trustee (the "Trustee"). The corpus of the Trust consists of (i) the
Transferor's fractional undivided interest in a portfolio of certain
receivables (the "Receivables") existing in the revolving credit card
accounts identified under the Agreement from time to time (the "Accounts"),
(ii) certain Receivables generated under the Accounts from time to time
thereafter, (iii) certain funds collected or to be collected from
accountholders in respect of the Receivables, (iv) all funds which are from
time to time on deposit in the Collection Account, Special Funding Account
and in the Series Accounts, (v) the benefits of any Series Enhancements
issued and to be issued by Series Enhancers with respect to one or more
Series of Investor Certificates and (vi) all other assets and interests
constituting the Trust, including Interchange and Recoveries allocated to
the Trust pursuant to the Agreement and any Supplement. Although a summary
of certain provisions of the Agreement is set forth below, this Certificate
does not purport to summarize the Agreement and reference is made to the
Agreement for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties
and obligations of the Trustee. A copy of the Agreement may be requested
from the Trustee by writing to the Trustee at the Corporate Trust Office.
To the extent not defined herein, the capitalized terms used herein have
the meanings ascribed to them in the Agreement.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended
and supplemented from time to time, the Transferor by virtue of the
acceptance hereof assents and is bound.
The Receivables consist of Principal Receivables which arise
generally from the purchase of merchandise and services and amounts
advanced to cardholders as cash advances and Finance Charge Receivables
which arise generally from Periodic Finance Charges, Late Fees and other
fees and charges with respect to the Accounts.
This Certificate is the Transferor Certificate, which represents
the Transferor's interest in certain assets of the Trust, including the
right to receive a portion of the Collections and other amounts at the
times and in the amounts specified in the Agreement. The aggregate
interest represented by the Transferor Certificate at any time in the
Receivables in the Trust shall not exceed the Transferor's Interest at such
time. In addition to the Transferor Certificate, (i) Investor Certificates
will be issued to investors pursuant to the Agreement, which will represent
the Certificateholders' Interest, and (ii) Supplemental Certificates may be
issued pursuant to the Agreement, which will represent that portion of the
Transferor's Interest not allocated to the Transferor. This Transferor
Certificate shall not represent any interest in the Collection Account, the
Special Funding Account or the Series Accounts, except as expressly
provided in the Agreement, or any Series Enhancements.
Unless otherwise specified in a Supplement with respect to a
particular Series the Transferor has entered into the Agreement, and this
Certificate is issued, with the intention that, for federal, state and
local income and franchise tax purposes, (i) the Investor Certificates of
each Series which are characterized as indebtedness at the time of their
issuance will qualify as indebtedness of the Transferor secured by the
Receivables and (ii) the Trust shall not be treated as an association
taxable as a corporation. The Transferor, by entering into the Agreement
and by the acceptance of this Transferor Certificate, agrees to treat the
Investor Certificates for federal, state and local income and franchise tax
purposes as indebtedness of the Transferor.
Subject to certain conditions and exceptions specified in the
Agreement, the obligations created by the Agreement and the Trust created
thereby shall terminate upon the earlier of (i) December 31, 2059, (ii) the
day following the Distribution Date on which the Invested Amount and
Enhancement Invested Amount for each Series is zero (provided the
Transferor has delivered a written notice to the Trustee electing to
terminate the Trust) and (iii) the time provided in Section 12.1 of the
Agreement.
Unless the certificate of authentication hereon has been executed
by or on behalf of the Trustee, by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, the Transferor has caused this Certificate to
be duly executed.
PARTNERS FIRST RECEIVABLES
FUNDING, LLC
By ___________________________
Name:
Title:
Dated: [_________ __, ____]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Transferor Certificate described in the
within-mentioned Agreement.
The Bank of New York,
as Trustee,
By _______________________
Authorized Signatory
or
By [_______________________],
as Authenticating Agent
for the Trustee,
By ________________________
Authorized Signatory
EXHIBIT B
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.9 of
the Pooling and Servicing Agreement)
ASSIGNMENT No. OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated
1/
as of , , by and among PARTNERS FIRST RECEIVABLES FUNDING, LLC, a
Delaware limited liability company, as Transferor (the "Transferor"),
PARTNERS FIRST HOLDINGS, LLC, as servicer (the "Servicer"), and THE BANK OF
NEW YORK, a New York banking corporation not in its individual capacity but
solely as trustee (the "Trustee"), pursuant to the Pooling and Servicing
Agreement referred to below.
WITNESSETH
WHEREAS the Transferor and the Trustee are parties to the Pooling
and Servicing Agreement dated as of January 29, 1998 (as amended and
supplemented, the "Agreement");
WHEREAS, pursuant to the Agreement, the Transferor wishes to
designate Additional Accounts owned by 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 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:
1. Defined Terms. All capitalized terms used herein shall have
the meanings ascribed to them in the Agreement unless otherwise defined
herein.
"Addition Date" shall mean, with respect to the Additional
Accounts designated hereby, , .
"Addition Cut-Off Date" shall mean, with respect to the
Additional Accounts designated hereby, , .
2. Designation of Additional Accounts. On or before the
Document Delivery Date, the Transferor will deliver to the Trustee a
computer file, microfiche list or printed list containing a true and
complete schedule identifying all such Additional Accounts specifying for
each such Account, as of the Addition Cut-Off 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,
microfiche list or printed list shall supplement Schedule I to the
Agreement.
_____________
1/ To be dated as of the applicable Addition Date.
3. Conveyance of Receivables. (a) The Transferor does hereby
sell, transfer, assign, set over and otherwise convey, without recourse
except as set forth in the Pooling and Servicing Agreement, to the Trustee,
on behalf of the Trust, for the benefit of the Certificateholders, all its
right, title and interest in, to and under the Receivables of such
Additional Accounts existing at the close of business on the Addition Date
and thereafter created from time to time until the termination of the
Trust, all monies due or to become due and all amounts received with
respect thereto and all proceeds (including "proceeds" as defined in the
UCC) thereof. The foregoing does not constitute and is not intended to
result in the creation or assumption by the Trust, the Trustee, any
Investor Certificateholder or any Series Enhancer of any obligation of the
Servicer, the Transferor 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
clearance systems, VISA, MasterCard or insurers.
(b) The Transferor agrees to record and file, at its own
expense, financing statements (and continuation statements when applicable)
with respect to the Receivables now in Additional Accounts, 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 Trust, and
to deliver a file-stamped copy of each such financing statement or other
evidence of such filing to the Trustee on or prior to the Addition Date.
The Trustee shall be under no obligation whatsoever to file such financing
or continuation statements or to make any other filing under the UCC in
connection with such sale and assignment.
(c) In connection with such sale, the Transferor 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 Trust pursuant to the Agreement and this Assignment for the
benefit of the Certificateholders.
(d) The Transferor does hereby grant to the Trustee a
security interest in all of its right, title and interest, whether now
owned or hereafter acquired, in and to the Receivables now existing and
hereafter created in the Additional Accounts, all monies due or to become
due and all amounts received with respect thereto and all "proceeds"
(including "proceeds" as defined in the UCC) thereof. This Assignment
constitutes a security agreement under the UCC.
4. Acceptance by Trustee. The Trustee hereby acknowledges its
acceptance on behalf of the Trust of all right, title and interest to the
property, now existing and hereafter created, conveyed to the Trust
pursuant to Section 3(a) of this Assignment, and declares that it shall
maintain such right, title and interest, upon the trust set forth in the
Agreement for the benefit of all Certificateholders. The Trustee further
acknowledges that, prior to or simultaneously with the execution and
delivery of this Assignment, the Transferor delivered to the Trustee the
computer file, microfiche list or printed list described in Section 2 of
this Assignment.
5. Representations and Warranties of the Transferor. The
Transferor hereby represents and warrants to the Trustee, on behalf of the
Trust, as of the date of this Assignment and as of the Addition Date that:
(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 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);
(b) Eligibility of Accounts. As of the Addition Cut-Off
Date, each Additional Account designated hereby is an Eligible
Account;
(c) Insolvency. As of each of the Addition Cut-Off Date
and the Addition Date, no Insolvency Event with respect to the
Transferor has occurred and the transfer by the Transferor of
Receivables arising in the Additional Accounts to the Trust has not
been made in contemplation of the occurrence thereof;
(d) Pay Out Event. The Transferor reasonably believes that
(A) the addition of the Receivables arising in the Additional Accounts
will not, based on the facts known to the Transferor, then or
thereafter cause a Pay Out Event to occur with respect to any Series
and (B) no selection procedure was utilized by the Transferor which
would result in the selection of Additional Accounts (from among the
available Eligible Accounts owned by the Transferor) that would be
materially adverse to the interests of the Investor Certificateholders
of any Series as of the Addition Date;
(e) Security Interest. This Assignment constitutes a valid
sale, transfer and assignment to the Trust of all right, title and
interest, whether now owned or hereafter acquired, of the Transferor
in the Receivables now existing or hereafter created in the Additional
Accounts, all monies due or to become due and all amounts received
with respect thereto and the "proceeds" (including "proceeds" as
defined in the UCC as in effect in the State of Delaware and other
applicable states) thereof, or, if this Assignment does not constitute
a sale of such property, it constitutes a grant of a "security
interest" (as defined in the UCC as in effect in the State of
Delaware, and other applicable states) in such property to the Trust,
which, in the case of existing Receivables and the proceeds thereof,
is enforceable upon execution and delivery of this Assignment, and
which will be enforceable with respect to such Receivables hereafter
created and the proceeds thereof upon such creation. Upon the filing
of the financing statements described in Section 3 of this Assignment
and, in the case of the Receivables hereafter created and the proceeds
thereof, upon the creation thereof, the Trust shall have a first
priority perfected security or ownership interest in such property;
(f) No Conflict. The execution and delivery by the
Transferor of this Assignment, the performance of the transactions
contemplated by this Assignment and the fulfillment of the terms
hereof applicable to the Transferor, will not conflict with or violate
any Requirements of Law applicable to the Transferor 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 Transferor is a party
or by which it or its properties are bound;
(g) No Proceedings. There are no proceedings or
investigations, pending or, to the best knowledge of the Transferor,
threatened against the Transferor before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Assignment, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Assignment, (iii) seeking any determination or
ruling that, in the reasonable judgment of the Transferor, would
materially and adversely affect the performance by the Transferor of
its obligations under this Assignment or (iv) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of this Assignment; and
(h) All Consents. All authorizations, consents, orders or
approvals of any court or other governmental authority required to be
obtained by the Transferor in connection with the execution and
delivery of this Assignment by the Transferor and the performance of
the transactions contemplated by this Assignment by the Transferor,
have been obtained.
(i) No Adverse Effect. The assignment by the Transfer will
not result in an Adverse Effect.
6. Ratification of Agreement. As supplemented by this
Assignment, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Assignment shall be read, taken and
construed as one and the same instrument.
7. 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 shall constitute one and the
same instrument.
8. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, 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.
IN WITNESS WHEREOF, the Transferor and the Trustee have caused
this Assignment to be duly executed by their respective officers as of the
day and year first above written.
PARTNERS FIRST RECEIVABLES
FUNDING, LLC
Transferor,
By ________________________________
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee,
By ________________________________
Name:
Title:
EXHIBIT C
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(As required by Section 2.10 of
the Pooling and Servicing Agreement)
1/
REASSIGNMENT No. OF RECEIVABLES dated as of , by and
among PARTNERS FIRST RECEIVABLES FUNDING, LLC, a Delaware limited liability
company, as Transferor (the "Transferor"), and THE BANK OF NEW YORK, a New
York banking corporation not in its individual capacity but solely as
trustee (the "Trustee"), pursuant to the Pooling and Servicing Agreement
referred to below.
WITNESSETH:
WHEREAS the Transferor and the Trustee are parties to the Pooling
and Servicing Agreement dated as of January 29, 1998 (as amended and
supplemented, the "Agreement");
WHEREAS pursuant to the Agreement, the Transferor wishes to
remove from the Trust all Receivables owned by the Trust in certain
designated Accounts owned by 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; and
WHEREAS the Trustee on behalf of the Trust 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 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, , .
"Removal Notice Date" shall mean, with respect to the Removed
Accounts, , .
2. Designation of Removed Accounts. On or before the date that
is five Business Days after the Removal Date, the Transferor will deliver
to the Trustee a computer file, microfiche list or printed list containing
a true and complete schedule identifying all Accounts the Receivables of
which are being removed from the Trust, 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, microfiche list or
printed list shall supplement Schedule 1 to the Agreement.
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, to and under the Receivables existing at the close of
business on the Removal Date and thereafter created from time to time in
the Removed Accounts designated hereby, all monies due or to become due and
all amounts received with respect thereto and all proceeds thereof.
_________________
1/ To be dated as of the Removal Date.
(b) In connection with such transfer, the Trustee agrees to
execute and deliver to the Transferor on or prior to the date this
Reassignment is delivered, applicable termination statements prepared by
the Transferor with respect to the Receivables existing at the close of
business on the Removal Date and thereafter created from time to time in
the Removed Accounts reassigned hereby and the proceeds thereof evidencing
the release by the Trust 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 Transferor. The
Transferor hereby represents and warrants to the Trustee, on behalf of the
Trust, as of the Removal Date:
(a) Legal Valid and Binding Obligation. This Reassignment
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 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) Pay Out Event. The Transferor reasonably believes that
(A) the removal of the Receivables existing in the Removed Accounts will
not, based on the facts known to the Transferor, then or thereafter cause a
Pay Out Event to occur with respect to any Series and (B) no selection
procedure was utilized by the Transferor which would result in a selection
of Removed Accounts that would be materially adverse to the interests of
the Investor Certificateholders of any Series as of the Removal Date.
(c) List of Removed Accounts. The list of Removed Accounts
delivered pursuant to subsection 2.10(ii) of the Agreement, as of the
Removal Date, is true and complete in all material respects.
5. Ratification of Agreement. As supplemented by this
Reassignment, the Agreement is in all respects ratified and confirmed and
the Agreement as so supplemented by this Reassignment shall be read, taken
and construed as one and the same instrument.
6. Counterparts. This Reassignment 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 shall constitute one and
the same instrument.
7. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, 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.
IN WITNESS WHEREOF, the Transferor and the Trustee have caused
this Reassignment to be duly executed by their respective officers as of
the day and year first above written.
PARTNERS FIRST RECEIVABLES
FUNDING, LLC
Transferor
By ________________________________
Title:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee,
By ________________________________
Title:
EXHIBIT D
FORM OF ANNUAL SERVICER'S CERTIFICATE
(To be delivered on or before June 30, of
each calendar year beginning with June 30, 1999,
pursuant to Section 3.5 of the Pooling and
Servicing Agreement referred to below)
PARTNERS FIRST HOLDINGS, LLC
PARTNERS FIRST CREDIT CARD MASTER TRUST
The undersigned, a duly authorized representative of Partners
First Holdings, LLC, as Servicer ("Holdings"), pursuant to the Pooling and
Servicing Agreement dated as of January 29, 1998 (as amended and
supplemented, the "Agreement"), among Partners First Receivables Funding,
LLC, as Transferor, Holdings, as Servicer, and The Bank of New York, as
Trustee, does hereby certify that:
1. Holdings is, as of the date hereof, the Servicer under the
Agreement. Capitalized terms used in this Certificate have their
respective meanings as set forth in the Agreement.
2. The undersigned is a Servicing Officer who is duly authorized
pursuant to the Agreement to execute and deliver this Certificate to the
Trustee.
3. A review of the activities of the Servicer during the year
ended December 31, ____, and of its performance under the Agreement was
conducted under my supervision.
4. Based on such review, the Servicer has, to the best of my
knowledge, performed in all material respects its obligations under the
Agreement throughout such year and no default in the performance of such
obligations has occurred or is continuing except as set forth in paragraph
5 below.
5. The following is a description of each default in the
performance of the Servicer's obligations under the provisions of the
Agreement known to me to have been made by the Servicer during the year
ended December 31, ____ which sets forth in detail (i) the 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 ________, 19____.
PARTNERS FIRST HOLDINGS, LLC
Servicer,
By ___________________________
Name:
Title:
EXHIBIT E-1
FORM OF OPINION OF COUNSEL
WITH RESPECT TO AMENDMENTS
Provisions to be included in
Opinion of Counsel to be delivered pursuant
to Section 13.2(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 [Pooling and Servicing Agreement],
[Supplement], attached hereto as Schedule 1 (the "Amendment" ), has
been duly authorized, executed and delivered by the Transferor and
constitutes the legal, valid and binding agreement of the Transferor,
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 the
Transferor'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 13.1 of the Pooling and Servicing
Agreement.
EXHIBIT E-2
FORM OF OPINION OF COUNSEL
WITH RESPECT TO ACCOUNTS
Provisions to be included in
Opinion of Counsel to be
delivered pursuant to
subsection 13.2(d)(ii) or (iii)
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 either general intangibles or accounts under Article
9 of the UCC.
2. The Pooling and Servicing Agreement creates in favor of the
Trustee a security interest in the rights of the relevant Transferor in
such of the Receivables identified in Schedule 1 to the Pooling and
Servicing Agreement as constitute accounts. To the extent that such
security interest is not an interest of a buyer of accounts, then the
Pooling and Servicing Agreement creates in favor of the Trustee a security
interest in the rights of such Transferor in the proceeds of such
Receivables.
3. To extent that transactions contemplated by the Pooling and
Servicing Agreement do not constitute a sale by the relevant Transferor to
the Trustee of such of the Receivables as constitute general intangibles or
the proceeds thereof, the Pooling and Servicing Agreement creates in favor
of the Trustee a security interest in the rights of such Transferor in such
of the Receivables as constitute general intangibles and the proceeds
thereof.
4. The Receivables Purchase Agreements create in favor of the
Transferor a security interest in the rights of the Account Owner in such
of the Receivables identified in Schedule 1 to the Receivables Purchase
Agreements as constitute accounts.
5. To the extent that transactions contemplated by the
Receivables Purchase Agreements do not constitute a sale by the Account
Owner to the Transferor of such of the Receivables as constitute general
intangibles or the proceeds thereof, the Receivables Purchase Agreements
create in favor of the Transferor a security interest in the rights of the
Account Owner in such of the Receivables as constitute general intangibles
and the proceeds thereof.
6. The security interests described in paragraphs 2, 3, 4 and 5
above are perfected and of first priority.
EXHIBIT E-3
PROVISIONS TO BE INCLUDED IN
ANNUAL OPINION OF COUNSEL
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. Unless
otherwise indicated, all capitalized terms used herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement and in the
Assignment.
1. The Pooling and Servicing Agreement, together with the Assignments,
create in favor of the Trustee a security interest in the relevant
Transferor's rights in the Receivables identified in Schedule 1 to the
Pooling and Servicing Agreement. Such security interest is perfected and
of first priority.
EXHIBIT F-1
[FORM OF CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE TRUSTEE BY
EUROCLEAR OR CEDEL FOR
DELIVERY OF DEFINITIVE CERTIFICATES
IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL SECURITY]
PARTNERS FIRST CREDIT CARD MASTER TRUST,
Class [___] Series [199_-_] [Floating Rate] [_%]
Asset Backed Certificates
[Insert title or sufficient description of
Certificates to be delivered]
We refer to that portion of the temporary Global Certificate in
respect of the above-captioned issue which is herewith submitted to be
exchanged for definitive Certificates (the "Submitted Portion") as provided
in the Pooling and Servicing Agreement dated as of January 29, 1998 (as
amended and supplemented, the "Agreement") in respect of such issue. This
is to certify that (i) we have received a certificate or certificates, in
writing or by tested telex, with respect to each of the persons appearing
in our records as being entitled to a beneficial interest in the Submitted
Portion and with respect to such persons beneficial interest either (a)
from such person, substantially in the form of Exhibit G-2 to the
Agreement, or (b) from [ ], substantially in the
form of Exhibit G-3 to the Agreement, and (ii) the Submitted Portion
includes no part of the temporary Global Certificate excepted in such
certificates
We further certify that as of the date hereof we have not
received any notification from any of the persons giving such certificates
to the effect that the statements made by them with respect to any part of
the Submitted Portion are no longer true and cannot be relied on as of the
date hereof.
We understand that this certificate is required in connection
with certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy thereof to
any interested party in such proceedings.
Dated:1/ [Xxxxxx Guaranty Trust, Company of New York,
Brussels office, as operator of the
Euroclear Systems] 0/
[Xxxxxxxx xx Xxxxxxxxx xx
Xxxxxxx Mobiliere S. A.]2/
By: _______________________________
___________________
1/ To be dated on the Exchange Date.
2/ Delete the inappropriate reference.
EXHIBIT F-2
[FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CEDEL
BY [INSERT NAME OF MANAGER]
WITH RESPECT TO REGISTERED CERTIFICATES SOLD TO
QUALIFIED INSTITUTIONAL BUYERS]
PARTNERS FIRST CREDIT CARD MASTER TRUST,
Class [___] Series [199_-_] [Floating Rate] [_%]
Asset Backed Certificates
In connection with the initial issuance and placement of the
above referenced Asset Backed Certificates (the "Certificates"), an
institutional investor in the United States ("institutional investor") is
purchasing U.S. $ aggregate principal amount of the
Certificates held in our account at [Xxxxxx Guaranty Trust Company of New
York, Brussels office, as operator of the Euroclear System] [Cedel Bank] on
behalf of such investor.
We reasonably believe that such institutional investor is a
qualified institutional buyer as such term is defined under Rule 144A of
the Securities Act of 1933, as amended.
[We understand that this certificate is required in connection
with United States laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative
or legal proceedings or official inquiry with respect to the matters
covered by this certificate.]
The Definitive Certificates in respect of this certificate are to
be issued in registered form in the minimum denomination of U.S. $500,000
and such Definitive Certificates (and, unless the Pooling and Servicing
Agreement or Supplement relating to the Certificates otherwise provides,
any Certificates issued in exchange or substitution for or on registration
of transfer of Certificates) shall bear the following legend:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 NEITHER THIS CERTIFICATE NOR ANY PORTION
HEREOF MAY BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE
UNITED STATES OR TO U.S. PERSONS (EACH AS DEFINED HEREIN), EXCEPT
IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF SUCH ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION
PROVISIONS. THE TRANSFER OF THIS CERTIFICATE IS SUBJECT TO
CERTAIN CONDITIONS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. THIS CERTIFICATE CANNOT BE
EXCHANGED FOR A BEARER CERTIFICATE."
Dated: [ ],
By: __________________________
Authorized Officer
EXHIBIT F-3
[FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CEDEL BY A BENEFICIAL OWNER
OF CERTIFICATES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER]
PARTNERS FIRST CREDIT CARD MASTER TRUST,
Class [___] Series [199_-_] [Floating Rate] [_%]
Asset Backed Certificates
This is to certify that as of the date hereof and except as
provided in the third paragraph hereof, the above-captioned Certificates
held by you for our account (i) are owned by a person that is a United
States person, or (ii) are owned by a United States person that is (A) the
foreign branch of a United States financial institution (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) (a "financial institution")
purchasing for its own account or for resale, or (B) a United States person
who acquired the Certificates through the foreign branch of a financial
institution and who holds the Certificates through the financial
institution on the date hereof (and in either case (A) or (B), the
financial institution hereby agrees to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by a financial
institution for purposes of resale during the Restricted Period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)). In addition,
financial institutions described in clause (iii) of the preceding sentence
(whether or not also described in clause (i) or (ii)) certify that they
have not acquired the Certificates for purposes of resale directly or
indirectly to a United States person or to a person within the United
States or its possessions.
We undertake to advise you by tested telex if the above statement
as to beneficial ownership is not correct on the date of delivery of the
above-captioned Certificates in bearer form with respect to such of said
Certificates as then appear in your books as being held for our account.
This certificate excepts and does not relate to U.S.
$_______________ principal amount of Certificates held by you for our
account, as to which we are not yet able to certify beneficial ownership.
We understand that delivery of Definitive Certificates in such principal
amount cannot be made until we are able to so certify.
We understand that this certificate is required in connection
with certain securities and tax laws ln the United States of America. If
administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy thereof to
any interested party in such proceedings. As used herein, "United States"
means the United States of America (including the States and the District
of Columbia), its territories, its possessions and other areas subject to
its jurisdiction; and "United States Person" means a citizen or resident of
the United States, a corporation, partnership or other entity created or
organized in or under the laws of the United States, or any political
subdivision thereof, or an estate or trust the income of which is subject
to United States federal income taxation regardless of its source.
Dated:1/
By: _________________________
As, or an agent for, the beneficial
owner(s) of the interest in the
Certificates to which this
certificate relates.
_________________
1/ This Certificate must be dated on the earlier of the date of
the first actual payment of interest in respect of the
Certificates and the date of the delivery of the
Certificates in definitive form.
EXHIBIT G-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "1933 ACT"). NEITHER THIS CERTIFICATE NOR ANY
PORTION HEREOF MAY BE OFFERED, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE 1933 ACT AND
ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A
BENEFIT PLAN (AS DEFINED BELOW).
EXHIBIT G-2
[FORM OF UNDERTAKING LETTER]
[Date]
The Bank of New York
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Partners First Receivables Funding, LLC
000 Xxxxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention:
Re: Purchase of $___________1/ principal amount
of Partners First Credit Card Master Trust
Class [__] Series [199_-_] [Floating Rate]
[__%] Asset Backed Certificates
Dear Sirs:
In connection with our purchase of the above-referenced Asset
Backed Certificates (the "Certificates") we confirm that:
(i) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "1933 Act"), and are
being sold to us in a transaction that is exempt from the registration
requirements of the 1933 Act;
(ii) any information we desire concerning the Certificates or any
other matter relevant to our decision to purchase the certificates is
or has been made available to us;
(iii) we have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks
of an investment in the Certificates, and we (and any account for
which we are purchasing under paragraph (iv) below) are able to bear
the economic risk of an investment in the Certificates; we (and any
account for which we are purchasing under paragraph (iv) below) are an
"accredited investor" (as such term is defined in Rule 501(a)(1), (2)
or (3) of Regulation D under the 0000 Xxx); and we are not, and none
of such accounts is, a Benefit Plan;
(iv) we are acquiring the Certificates for our own account or for
accounts as to which we exercise sole investment discretion and not
with a view to any distribution of the Certificates, subject,
nevertheless, to the understanding that the disposition of our
property shall at all times be and remain within our control;
__________________
1/ Not less than $250,000 minimum principal amount.
(v) we agree that the Certificates must be held indefinitely by
us unless subsequently registered under the 1933 Act or an exemption
from any registration requirements of that Act and any applicable
state securities laws available;
(vi) we agree that in the event that at some future time we wish
to dispose of or exchange any of the Certificates (such disposition or
exchange not being currently foreseen or contemplated), we will not
transfer or exchange any of the Certificates unless
(A)(l) the sale is of at least U.S. $250,000 principal
amount of Certificates to an Eligible Purchaser (as defined
below), (2) a letter to substantially the same effect as
paragraphs (i), (ii), (iii), (iv), (v) and (vi) of this letter is
executed promptly by the purchaser and (3) all offers or
solicitations in connection with the sale, whether directly or
through any agent acting on our behalf, are limited only to
Eligible Purchasers and are not made by means of any form of
general solicitation or general advertising whatsoever; or
(B) the Certificates are transferred pursuant to Rule 144
under the 1933 Act by us after we have held them for more than
three years; or
(C) the Certificates are sold in any other transaction that
does not require registration under the 1933 Act and, if the
Transferor, the Servicer, the Trustee or the Transfer Agent and
Registrar so requests, we theretofore have furnished to such
party an opinion of counsel satisfactory to such party, in form
and substance satisfactory to such party, to such effect; or
(D) the Certificates are transferred pursuant to an
exception from the registration requirements of the 1933 Act
under Rule 144A under the 1933 Act; and
(vii) we understand that the Certificates will bear a legend to
substantially the following effect:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "1933 ACT") NEITHER THIS CERTIFICATE NOR ANY PORTION
HEREOF MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE 1933 ACT AND ANY
APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE TRANSFER
OF THIS CERTIFICATE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN."
"THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A
BENEFIT PLAN (AS DEFINED BELOW)."
The first paragraph of this legend may be removed if the Transferor, the
Servicer, the Trustee and the Transfer Agent and Registrar have received an
opinion of counsel satisfactory to them, in form and substance satisfactory
to them, to the effect that such paragraph may be removed.
"Eligible Purchaser" means either an Eligible Dealer or a corporation,
partnership or other entity which we have reasonable grounds to believe and
do believe can make representations with respect to itself to substantially
the same effect as the representations set forth herein. "Eligible Dealer"
means any corporation or other entity the principal business of which is
acting as a broker and/or dealer in securities. "Benefit Plan" means any
employee benefit plan, trust or account, including an individual retirement
account, that is subject to the Employee Retirement Income Security Act of
1974, as amended, or that is described in Section 4975(e)(1) of the
Internal Revenue Code of 1986, as amended, or an entity whose underlying
assets include plan assets by reason of a plan's investment in such entity.
Capitalized terms used but not defined herein shall have the meanings given
to such terms in the Pooling and Servicing Agreement, dated as of January
29, 1998, among Partners First Receivables Funding, LLC, as transferor,
Partners First Holdings, LLC, as servicer and The Bank of New York, as
trustee.
Very truly yours,
______________________________
(Name of Purchaser)
By: __________________________
(Authorized Officer)
EXHIBIT G-3
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A BENEFIT
PLAN (AS DEFINED BELOW).1/
__________________
1/ The following text should be included in any Certificate in
which the above legend appears:
The [Certificates] may not be acquired by or for the
account of any employee benefit plan, trust or account,
including an individual retirement account, that is subject
to the Employee Retirement Income Security Act of 1974, as
amended, or that is described in Section 4975(e)(1) of the
Internal Revenue Code of 1986, as amended, or an entity
whose underlying assets include plan assets by reason of a
plan's investment in such entity (a "Benefit Plan"). By
accepting and holding this Certificate, the Holder hereof
shall be deemed to have represented and warranted that it is
not a Benefit Plan. By acquiring any interest in this
Certificate, the applicable Certificate Owner or Owners
shall be deemed to have represented and warranted that it or
they are not Benefit Plans.
SCHEDULE 1
List of Accounts
[Original list delivered to Trustee]
