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EXHIBIT 4.1
FORM OF
XXXXXXXX'X CREDIT CORPORATION
TRANSFEROR
XXXXXXXX'X, INC.
SERVICER
AND
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
TRUSTEE
ON BEHALF OF THE CERTIFICATEHOLDERS
OF THE
XXXXXXXX'X CREDIT CARD MASTER TRUST
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MASTER POOLING AND SERVICING AGREEMENT
DATED AS OF JULY ___, 1997
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS........................................................................ IV
Section 1.1 Definitions................................................................ iv
Section 1.2 Other Definitional Provisions.............................................. 23
ARTICLE II APPOINTMENT OF TRUSTEE; CONVEYANCE OF RECEIVABLES; ISSUANCE OF
CERTIFICATES....................................................................... 24
Section 2.1 Appointment of Trustee; Conveyance of Receivables.......................... 24
Section 2.2 Acceptance by Trustee...................................................... 26
Section 2.3 Representations and Warranties Regarding the Transferor.................... 27
Section 2.4 Representations and Warranties of the Transferor Relating to the
Agreement and any Supplement and the Receivables........................... 29
Section 2.5 Covenants of the Transferor................................................ 35
Section 2.6 Addition of Accounts; Repurchase of Investor Certificates.................. 38
Section 2.7 Removal of Accounts........................................................ 41
Section 2.8 Discount Option Receivables................................................ 43
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES........................................ 44
Section 3.1 Acceptance of Appointment and Other Matters Relating to the Servicer....... 44
Section 3.2 Servicing Compensation..................................................... 46
Section 3.3 Representations, Warranties and Covenants of the Servicer.................. 46
Section 3.4 Reports and Records for the Trustee........................................ 49
Section 3.5 Annual Servicer's Certificate.............................................. 51
Section 3.6 Annual Independent Public Accountants' Servicing Report.................... 51
Section 3.7 Tax Treatment.............................................................. 52
Section 3.8 Adjustments................................................................ 53
ARTICLE IV RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION AND APPLICATION OF
COLLECTIONS........................................................................ 53
Section 4.1 Establishment of Collection Account and Allocations with Respect to the
Exchangeable Transferor Certificate........................................ 54
ARTICLE V IS RESERVED AND MAY BE SPECIFIED IN ANY SUPPLEMENT WITH
RESPECT TO ANY SERIES.............................................................. 59
ARTICLE VI THE CERTIFICATES................................................................... 59
Section 6.1 The Certificates........................................................... 59
Section 6.2 Authentication of Certificates............................................. 60
Section 6.3 Registration of Transfer and Exchange of Certificates...................... 60
Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates.......................... 64
Section 6.5 Persons Deemed Owners...................................................... 64
Section 6.6 Appointment of Paying Agent................................................ 65
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Section 6.7 Access to List of Certificateholders' Names and Addresses.................. 66
Section 6.8 Authenticating Agent....................................................... 67
Section 6.9 Tender of Exchangeable Transferor Certificate.............................. 68
Section 6.10 Global Certificate; Euro-Certificate Exchange Date......................... 70
Section 6.11 Book-Entry Certificates.................................................... 71
Section 6.12 Notices to Clearing Agency................................................. 72
Section 6.13 Definitive Certificates.................................................... 72
Section 6.14 Meetings of Certificateholders............................................. 73
ARTICLE VII OTHER MATTERS RELATING TO THE TRUST................................................ 75
Section 7.1 Liability of the Transferor................................................ 75
Section 7.2 Merger or Consolidation of, or Assumption of the Obligations
of, the Transferor......................................................... 75
Section 7.3 Limitation on Liability of the Transferor.................................. 77
Section 7.4 Liabilities................................................................ 77
ARTICLE VIII OTHER MATTERS RELATING TO THE SERVICER............................................. 78
Section 8.1 Liability of the Servicer.................................................. 78
Section 8.2 Merger or Consolidation of, or Assumption of the Obligations
of, the Servicer........................................................... 78
Section 8.3 Limitation on Liability of the Servicer and Others......................... 79
Section 8.4 Indemnification of the Trust and the Trustee............................... 80
Section 8.5 The Servicer Not to Resign................................................. 81
Section 8.6 Access to Certain Documentation and Information Regarding
the Receivables............................................................ 81
Section 8.7 Delegation of Duties....................................................... 81
Section 8.8 Examination of Records..................................................... 82
ARTICLE IX PAY OUT EVENTS..................................................................... 82
Section 9.1 Pay Out Events............................................................. 82
Section 9.2 Additional Rights Upon the Occurrence of Certain Events.................... 83
ARTICLE X SERVICER DEFAULTS.................................................................. 85
Section 10.1 Servicer Defaults.......................................................... 85
Section 10.2 Trustee to Act; Appointment of Successor................................... 87
Section 10.3 Notification to Certificateholders......................................... 89
Section 10.4 Waiver of Past Defaults.................................................... 90
ARTICLE XI THE TRUSTEE........................................................................ 90
Section 11.1 Duties of Trustee.......................................................... 90
Section 11.2 Certain Matters Affecting the Trustee...................................... 92
Section 11.3 Trustee Not Liable for Recitals in Certificates............................ 94
Section 11.4 Trustee May Own Certificates............................................... 94
Section 11.5 The Servicer to Pay Trustee's Fees and Expenses............................ 94
Section 11.6 Eligibility Requirements for Trustee....................................... 95
Section 11.7 Resignation or Removal of Trustee.......................................... 95
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Section 11.8 Successor Trustee.......................................................... 96
Section 11.9 Merger or Consolidation of Trustee......................................... 96
Section 11.10 Appointment of Co-Trustee or Separate Trustee.............................. 97
Section 11.11 Tax Returns and Compliance................................................. 98
Section 11.12 Trustee May Enforce Claims Without Possession of Certificates.............. 99
Section 11.13 Suits for Enforcement...................................................... 99
Section 11.14 Rights of Certificateholders to Direct Trustee............................. 99
Section 11.15 Representations and Warranties of Trustee.................................. 99
Section 11.16 Maintenance of Office or Agency............................................ 100
ARTICLE XII TERMINATION........................................................................ 100
Section 12.1 Termination of Trust....................................................... 100
Section 12.2 Optional Purchase; Final Termination Date of Investor
Certificates of any Series............................ .................... 101
Section 12.3 Final Payment with Respect to any Series................................... 102
Section 12.4 Transferor's Termination Rights............................................ 103
Section 12.5 Defeasance................................................................. 104
ARTICLE XIII MISCELLANEOUS PROVISIONS........................................................... 105
Section 13.1 Amendment.................................................................. 105
Section 13.2 Protection of Right, Title and Interest to Trust........................... 108
Section 13.3 Limitation on Rights of Certificateholders................................. 110
Section 13.4 Governing Law.............................................................. 110
Section 13.5 Notices.................................................................... 110
Section 13.6 Severability of Provisions................................................. 111
Section 13.7 Assignment................................................................. 112
Section 13.8 Certificates Nonassessable and Fully Paid.................................. 112
Section 13.9 Further Assurances......................................................... 112
Section 13.10 No Waiver; Cumulative Remedies............................................. 112
Section 13.11 Counterparts............................................................... 112
Section 13.12 Third-Party Beneficiaries.................................................. 112
Section 13.13 Actions by Certificateholders.............................................. 112
Section 13.14 Merger and Integration..................................................... 113
Section 13.15 Headings................................................................... 113
Section 13.16 Certificates and Opinions of Counsel....................................... 113
Section 13.17 Non-competition Covenant................................................... 114
EXHIBITS
Exhibit A: Form of Exchangeable Transferor Certificate
Exhibit B: Form of Assignment of Receivables in Additional Accounts
Exhibit C: Form of Reassignment of Receivables
Exhibit D: Form of Series Closing Date Report
Exhibit E: Form of Monthly Servicer's Certificate
Exhibit F: Form of Annual Servicer's Certificate
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Exhibit G: Form of Opinion of Counsel with Respect to the Pooling and Servicing Agreement and
Additional Accounts
Exhibit H: Form of Annual Opinion of Counsel
Exhibit I: Account Agreements
Exhibit J: Form of Depository Agreement (Letter of Representations)
SCHEDULES
Schedule 1 List of Accounts
THIS MASTER POOLING AND SERVICING AGREEMENT, dated as of July ___, 1997,
is by and among XXXXXXXX'X CREDIT CORPORATION, a Nevada corporation, as
Transferor, XXXXXXXX'X, INC., a Tennessee corporation, as Servicer, and NORWEST
BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking association, as
Trustee.
In consideration of the mutual agreements herein contained, each party
agrees as follows for the benefit of the other party and, to the extent
provided herein or in any Supplement, for the benefit of the Certificateholders
and any Enhancement Provider:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Agreement, the following
words and phrases shall have the following meanings:
"Account" shall mean each consumer revolving credit card account,
originated or acquired by the Sellers, the Transferor or their Affiliates,
including the Bank, which account (i) is identified on the Servicer's master
computer files by the identifying codes specified in the computer file,
microfiche or written list delivered to the Trustee by the Transferor pursuant
to Section 2.1 or Section 2.6, (ii) has been established or exists pursuant to
an Account Agreement between an Eligible Originator and any Person not a
Governmental Authority and (iii) is or will be identified by account number and
Receivable balance as of the Cut-Off Date and as of each Additional Account
Cut-Off Date in each computer file, microfiche or written list delivered to the
Trustee by the Transferor pursuant to Section 2.1 or Section 2.6. The term
"Account" shall include each Transferred Account, and shall be deemed to refer
to an Additional Account only from and after the Additional Account Closing
Date with respect thereto and to an Automatic Additional Account included
automatically pursuant to Section 2.6(d) only from and after the Creation Date
with respect thereto. An "Account" shall be deemed to refer to any Removed
Account only prior to its Removal Date.
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"Account Agreements" shall mean the agreements and related federal
Truth-in-Lending Act disclosure statements substantially in the forms attached
as Exhibit I, as such agreements and/or statements and Exhibit I may be
amended, modified or changed from time to time, subject only to Section 2.5(c)
hereof.
"Accumulation Period" shall have, with respect to any Series, the meaning,
if any, specified in the applicable Supplement.
"Additional Account Closing Date" shall mean each date on which Additional
Accounts will be included as Accounts pursuant to Section 2.6.
"Additional Account Cut-Off Date" shall mean with respect to any
Additional Account, the last day of the Monthly Period preceding the Additional
Account Closing Date.
"Additional Accounts" shall have the meaning specified in Section 2.6(a).
"Adjusted Investor Amount" shall have the meaning specified in the
Supplements for all outstanding Series.
"Adjustment Payment Obligation" shall have the meaning specified in
Section 3.8(a).
"Affiliate" of any Person shall mean any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
"Aggregate Automatic Addition Limit" shall mean (i) the number of Eligible
Accounts designated as Automatic Additional Accounts, pursuant to Section
2.6(d), which would either (x) with respect to any period of three (3)
consecutive Monthly Periods commencing in January, April, July or October of a
calendar year equals 15% of the sum of the number of Accounts as of the last
Business Day preceding the commencement of such period (or, the Cut-Off Date,
whichever is later) and the number of Additional Accounts included as Accounts
pursuant to Section 2.6(a) or Section 2.6(b) since such first day or (y) with
respect to any period of twelve (12) consecutive Monthly Periods, equals 20% of
the sum of the number of Accounts as of the last Business Day preceding the
commencement of such period (or, the Cut-Off Date, whichever is later) and the
number of Additional Accounts included as Accounts pursuant to Section 2.6(a)
or Section 2.6(b) since such Business Day or (ii) such higher number of
Automatic Additional Accounts as to which Standard & Poor's and Moody's and any
other applicable Rating Agency rating any Certificates shall consent in
writing.
"Aggregate Investor Amount" shall mean with respect to any date of
determination, the sum of the Investor Amounts with respect to all Series of
Investor Certificates then outstanding.
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"Aggregate Investor Percentage" shall mean with respect to any date of
determination, the sum of the applicable Investor Percentages with respect to
all Series then outstanding.
"Aggregate Principal Receivables" shall mean, for any date of
determination, the aggregate amount of Principal Receivables at the end of such
day.
"Agreement" shall mean this Master Pooling and Servicing Agreement and all
amendments hereof and supplements hereto, including any Supplement.
"Amortization Period" shall mean, with respect to any Series, the period
following the Revolving Period which shall be the Accumulation Period,
Controlled Amortization Period, Principal Amortization Period, Rapid
Amortization Period or other type of amortization period (as specified in any
related Supplement).
"Applicants" shall have the meaning specified in Section 6.7.
"Appointment Day" shall have the meaning specified in Section 9.2(a).
"Assignment" shall have the meaning specified in Section 2.6(c).
"Authorized Newspaper" shall mean one or more newspapers of general
circulation in the Borough of Manhattan, The City of New York printed in the
English language and customarily published on each Business Day, whether or not
published on Saturdays, Sundays and holidays, and shall include The Wall Street
Journal.
"Automatic Additional Accounts" shall have the meaning specified in
Section 2.6(d).
"Bank" shall mean any national banking association or banking corporation
organized under the laws of the United States or any state thereof that is an
Affiliate of the Company that may, as part of its activities originate,
transfer and/or service Accounts and Receivables.
"Bearer Certificates" shall have the meaning specified in Section 6.1.
"Bearer Rules" shall mean the provisions of the Code, in effect from time
to time, governing the treatment of bearer obligations, including sections
163(f), 871, 881, 1441, 1442 and 4701, and any regulations thereunder
including, to the extent applicable to any Series, proposed or temporary
regulations.
"Book-Entry Certificates" shall mean beneficial interests in the Investor
Certificates, the ownership and transfers of which shall be evidenced or made
through book entries by a Clearing Agency as described in Section 6.11;
provided, that after the occurrence of a condition whereupon book-entry
registration and transfer are no longer
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permitted and Definitive Certificates are issued to the Certificate Owners,
such Definitive Certificates shall replace Book-Entry Certificates.
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which banking institutions in Birmingham, Alabama; Jackson, Mississippi;
Dallas, Texas; Atlanta, Georgia; Minneapolis, Minnesota or New York, New York
(or, with respect to any Series, any additional city specified in the related
Supplement) are authorized or obligated by law or executive order to be closed.
"Cede" shall mean Cede & Co. as nominee of The Depository Trust Company.
"Cedel" shall mean Cedel Bank, societe anonyme or any successor thereto.
"Certificate" shall mean a certificate of any Series of the Investor
Certificates or the Exchangeable Transferor Certificate.
"Certificateholder" or "Holder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register.
"Certificate Interest" shall mean interest payable with respect to the
applicable Series of Investor Certificates pursuant to the applicable
Supplement.
"Certificate Owner" shall mean, with respect to a Book-Entry Certificate,
the Person who is the beneficial 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 a participant or as
an indirect participant, in accordance with the rules of such Clearing Agency),
and otherwise shall be (i) the registered owner of Registered Certificates as
shown on the Certificate Register of the Transfer Agent and Registrar with
respect to such Certificates or (ii) the Holder of any Bearer Certificates.
"Certificate Principal" shall mean principal payable with respect to the
applicable Series of Investor Certificates pursuant to the applicable
Supplement.
"Certificate Rate" shall mean, with respect to any Series of Certificates,
the percentage (or formula on the basis of which such rate shall be determined)
stated in the applicable Supplement; provided that, unless otherwise provided
in the applicable Supplement, in each case such rate shall be calculated and
paid on the basis of a 360-day year consisting of twelve 30-day months.
"Certificate Register" shall mean the register maintained pursuant to
Section (6.3) providing for the registration of the applicable Certificates and
transfers and exchanges thereof.
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"Clearing Agency" shall mean an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended, or any successor provision thereto, including The Depository Trust
Company and Cede.
"Clearing Agency Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" shall mean, with respect to any Series, the date of
issuance of such Series of Certificates, as specified in the related
Supplement.
"Code" or "Internal Revenue Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
"Collection Account" shall have the meaning specified in Section 4.1.
"Collections" shall mean all payments (including Recoveries) received by
the Servicer with respect to the Receivables, in the form of cash, checks, wire
transfers, ATM transfers or other form of payment in accordance with the
related Account Agreements in effect from time to time. Collections with
respect to any Monthly Period shall include (i) interest and other investment
earnings (net of losses and investment expenses) on funds held in the Excess
Funding Account and (ii) the amount of Interchange (if any) allocable to any
Series pursuant to any Supplement with respect to such Monthly Period (to the
extent received by the Trust).
"Common Depositary" shall mean the Person appointed as such as specified
in the related Supplement, in its capacity as common depositary for the
respective accounts of a Foreign Clearing Agency.
"Company" shall mean Xxxxxxxx'x, Inc. and its successors and assigns.
"Controlled Amortization Period" shall have, with respect to any Series,
the meaning, if any, specified in the applicable Supplement.
"Corporate Trust Office" shall mean the principal office of the Trustee at
which at any particular time its corporate business shall be administered,
which office at the date of the execution of this Agreement is located at Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000 Attn: Corporate
Trust Services -- Asset-Backed Administration.
"Coupons" shall have the meaning specified in Section 6.1.
"Creation Date" shall mean the date that an Account is originated and is
identified on the Servicer's master computer files.
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"Credit Card Guidelines" shall mean the policies and procedures relating
to the operation of the consumer revolving credit card business of each
Eligible Originator, including the policies and procedures for determining the
creditworthiness of customers, the extension of credit, including special and
other promotions, to customers and relating to the maintenance of consumer
revolving credit card accounts and the collection of receivables, as such
policies and procedures may be amended from time to time in accordance with
Section 2.5(c).
"Cut-Off Date" shall mean the close of business on [ ],
1997.
"Date of Processing" shall mean, with respect to any transaction, the
Business Day on which such transaction is first recorded in the Servicer's
computer master file of consumer revolving credit card accounts (without regard
to the effective date of such recordation).
"Debtor Relief Laws" shall mean the United States Bankruptcy Code, as
amended, and other insolvency, conservatorship, receivership, reorganization,
marshaling of assets or liabilities, liquidation, readjustment of debts,
moratorium, or other similar laws affecting the enforcement, of creditors'
rights in general.
"Default Amount" shall mean, for any Monthly Period, the aggregate amount
of Principal Receivables (other than Ineligible Receivables) in all Accounts
which became Defaulted Accounts during such Monthly Period (determined in each
case as of the date on which the related Account became a Defaulted Account)
minus Recoveries, if any, received during such Monthly Period, provided the
Default Amount shall not be less than $0.
"Defaulted Account" shall mean each Account with respect to which, in
accordance with the Credit Card Guidelines pursuant to which such Account is
governed or the customary and usual servicing procedures of the Servicer for
servicing consumer revolving credit card receivables comparable to the
Receivables, the Servicer has charged off the Receivables in such Account as
uncollectible; in any event, an Account shall be deemed a Defaulted Account no
later than the earlier of (i) the last day of the seventh calendar month in
which the related Obligor has failed to make a qualifying minimum payment on a
delinquent Account and (ii) 30 days after receipt of notice by the Servicer
that the related Obligor has died or has filed a bankruptcy petition or has had
a bankruptcy petition filed against him. Notwithstanding any other provision
hereof, any Receivables in a Defaulted Account which are Ineligible Receivables
shall be treated as Ineligible Receivables rather than as Receivables in
Defaulted Accounts.
"Defeasance" shall have the meaning specified in Section 12.5.
"Defeased Series" shall have the meaning specified in Section 12.5.
"Definitive Certificates" shall have the meaning specified in Section
6.11.
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"Definitive Euro-Certificates" shall have the meaning specified in Section
6.10.
"Depository Agreement" shall mean the agreement among the Transferor, the
Trustee and the initial Clearing Agency, in the form attached hereto as Exhibit
J, or as otherwise provided in the related Supplement.
"Determination Date" shall mean, unless otherwise specified in a
Supplement for any Series, with respect to a Monthly Period, a Business Day
occurring in the first 10 days of the succeeding calendar month as selected
from time to time by Servicer prior to each Distribution Date.
"Discount Option" shall have the meaning specified in Section 2.8(c).
"Discount Option Receivables" shall, consistent with Section 2.8, be equal
to, on any Date of Processing (commencing with the Cut Off Date), the sum of
(a) the aggregate Discount Option Receivables at the end of the prior Date of
Processing plus (b) any new Discount Option Receivables created on such Date of
Processing minus (c) any Discount Option Receivable Collections received on
such Date of Processing. The "Discount Option Receivables" created on any Date
of Processing shall mean the product of (i) the amount of Principal Receivables
created on such Date of Processing (without giving effect to the deduction of
the Discount Option Receivables) and (ii) the Discount Percentage; provided,
however, that the aggregate "Discount Option Receivables" at the end of the
Date of Processing preceding the Cut Off Date shall be deemed to be $_______.
"Discount Option Receivable Collections" shall mean, on any Date of
Processing on and after the date on which the Transferor's exercise of its
discount option pursuant to Section 2.8 is in effect, the product of (a) a
fraction the numerator of which is the amount of Discount Option Receivables
and the denominator of which is the sum of the Principal Receivables and the
Discount Option Receivables, in each case at the end of the prior Monthly
Period, and (b) Collections of Principal Receivables (without giving effect to
Discount Option Receivables) on such Date of Processing.
"Discount Percentage" shall mean the percentage designated by the
Transferor pursuant to Section 2.8 or in any Supplement.
"Dissolution Event" shall have the meaning specified in Section 9.2(a).
"Distribution Date" shall mean ________, 1997 and the fifteenth day of
each calendar month thereafter, or, if such fifteenth day is not a Business
Day, the next succeeding Business Day, unless otherwise specified in the
applicable Supplement.
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"Eligible Account" shall mean, as of the Cut-Off Date (or, with respect to
Additional Accounts, as of the relevant Additional Account Cut-Off Date or,
with respect to an Account included automatically pursuant to Section 2.6(d),
as of the Creation Date with respect thereto) each Account (i) in existence and
owned by any Eligible Originator or the Transferor, (ii) payable in United
States dollars, (iii) the credit card or cards related to which have not been
reported lost or stolen or designated counterfeit or fraudulent, (iv) not
identified by the Transferor in its computer files as having been canceled or
charged off due to the Obligor's bankruptcy or insolvency or death, (v) the
receivables in which have not been charged off as uncollectible prior to the
Cut-Off Date or Additional Account Cut-Off Date or Creation Date, as
applicable, in accordance with the Credit Card Guidelines, (vi) the receivables
in which have not been assigned, pledged or sold (other than pursuant to this
Agreement), (vii) the Obligor of which has provided, as its most recent billing
address, an address in the United States or its territories or possessions and
(viii) with respect to which the Transferor or any corporate Affiliate of the
Transferor is not the Obligor.
"Eligible Originator" shall mean (i) each of the Sellers and their
respective successors and assigns, (ii) any of their Affiliates, including the
Bank or (iii) any other originator or acquirer of Receivables that is a party
to a Receivables Purchase Agreement, provided that, except with respect to the
Sellers as of the Closing Date, the Transferor shall have met the Rating Agency
Condition and shall have delivered such notice(s) of compliance with such
Rating Agency Condition to the Trustee and the Servicer.
"Eligible Receivable" shall mean each Receivable which has arisen under an
Eligible Account:
(i) which was created in compliance with all applicable requirements
of law, and pursuant to an agreement which complies with all applicable
requirements of law, in either case the failure to comply with which
would have a material adverse effect upon Certificateholders,
(ii) with respect to which all material consents, licenses,
approvals or authorizations of, or registrations with, any governmental
authority required to be obtained or given by an Eligible Originator or
by the Transferor in connection with the creation of such Receivable or
the execution, delivery and performance by the Eligible Originator of the
related agreement have been duly obtained or given and are in full force
and effect as of such date of creation;
(iii) as to which at the time of the transfer of such Receivable to
the Trust, the Transferor will have good and marketable title, free and
clear of all Liens (except those Liens permitted by Section 2.5(b));
(iv) which has been the subject of either a valid transfer and
assignment from the Transferor to the Trust of all of the Transferor's
right,
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title and interest therein or the grant of a first priority perfected
security interest therein (and in the proceeds thereof to the extent set
forth in Section 9-306 of the UCC as in effect in the Relevant UCC State),
effective until the termination of the Trust;
(v) which will at all times be the legal, valid and binding payment
obligation of the Obligor thereof 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);
(vi) which constitutes either "chattel paper", 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;
(vii) which, at the time of its transfer to the Trust, has not been
waived or modified except in accordance with the Credit Card Guidelines
or as permitted hereunder;
(viii) which is not at the time of transfer to the Trust, subject,
to the knowledge of the Transferor or the Servicer, any claim of
rescission, setoff, counterclaim or any other defense (including the
defense of usury) of the Obligor, which requires that such Receivable be
charged off in accordance with the Credit Card Guidelines, other than
defenses arising out of applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights in general and equity related defenses;
(ix) as to which, at the time of transfer to the Trust, the
Transferor and the Eligible Originator of such Receivable has satisfied
all obligations required to be satisfied by such time; and
(x) as to which the Eligible Originator and/or the Transferor has
done nothing, at the time of its transfer to the Trust, to impair the
rights of the Trust or Certificateholders therein.
"Eligible Servicer" shall mean the Company, XxXxx'x, Inc. or any
other Affiliate of the Company; the Trustee; or otherwise any entity which, at
the time of its appointment as Servicer, (i) is an established financial
institution having capital or net worth of not less than $50,000,000, (ii) is
servicing a portfolio of consumer revolving credit card accounts, (iii) is
legally qualified and has the capacity to service the Accounts, (iv) has
demonstrated the ability to professionally service a portfolio of similar
consumer
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revolving credit card accounts in accordance with standards of skill and care
customary in the industry and (v) is qualified to use the software that is then
currently 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.
"Enhancement" shall mean, with respect to any Series or class of
Certificates within a Series, any letter of credit, guaranteed rate agreement,
maturity guaranty facility, liquidity facility, cash collateral account, cash
collateral guaranty, surety bond, insurance policy, tax protection agreement,
interest rate swap, interest rate cap, spread account, reserve account or other
contract, agreement or arrangement (including the subordination of a Series or
class to another Series or class) for the benefit of Certificateholders of such
Series or class, as set forth in the applicable Supplement.
"Enhancement Investor Amount" shall have, with respect to any Series, the
meaning specified in the applicable Supplement.
"Enhancement Provider" shall mean, with respect to any Series, that Person
designated as such in the applicable Supplement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"Euro-Certificate Exchange Date" shall mean, with respect to any Series,
the date specified in the applicable Supplement.
"Euroclear Operator" shall mean Xxxxxx Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System, or any successor thereto.
"Euroclear System" shall mean the Euroclear Clearance System, Societe
Cooperative, a Belgian cooperative corporation, all operations of which are
conducted by the Euroclear Operator.
"Excess Funding Account" shall have the meaning specified in Section
4.1(g).
"Excess Funding Amount" shall mean the amount held in the Excess Funding
Account.
"Exchange" shall mean the procedure described under Section 6.9.
"Exchange Date" shall have, with respect to any Series issued pursuant to
an Exchange, the meaning specified in Section 6.9.
"Exchangeable Transferor Certificate" shall mean the certificate executed
by the Transferor and authenticated by the Trustee, substantially in the form
of Exhibit A
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and exchangeable as provided in Section 6.9 for one or more Series of Investor
Certificates and any reissued Exchangeable Transferor Certificate.
"Exchange Notice" shall have, with respect to any Series issued pursuant
to an Exchange, the meaning specified in Section 6.9.
"FASIT" shall mean a financial asset securitization trust as defined in
the Code.
"FDIC" shall mean the Federal Deposit Insurance Corporation, or any
successor thereto.
"Final Termination Date" shall have the meaning specified in Section
12.1(a).
"Finance Charge Receivables" shall mean (i) Receivables created in respect
of Finance Charges and (ii) Discount Option Receivables. Collections of Finance
Charge Receivables with respect to any Monthly Period also shall include the
sum of (a) the amount of Interchange (if any) allocable to any Series pursuant
to any Supplement with respect to such Monthly Period (to the extent received
by the Trust), (b) the excess, if any, of Recoveries collected during such
Monthly Period over the aggregate amount of Receivables in Defaulted Accounts
charged off during such Monthly Period and (c) interest, if any, earned (net of
investment expenses and losses) on the Excess Funding Account.
"Finance Charge Shortfalls" shall have, with respect to any Series, the
meaning specified in the applicable Supplement.
"Finance Charges" shall have the meaning specified in the Account
Agreement applicable to each Account, and in all events, notwithstanding the
terms of the Account Agreement, shall include interest, cash advance fees,
annual cardholder fees, late fees, over limit fees, returned check fees and all
other fees and charges on the Account (other than Insurance Charges and service
contract charges).
"Fiscal Year" shall mean the period beginning on the Sunday following the
Saturday that is closest to the 31st of January of each year, and ending on the
Saturday that is closest to the 31st of January of the following year.
"Foreign Clearing Agency" shall mean, with respect to any Series, Cedel or
the Euroclear Operator or any other established clearing agency for securities
outside the United States designated in the applicable Supplement.
"Global Certificate" shall have the meaning specified in Section 6.10(a).
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"Governmental Authority" shall mean the United States of America, any
state or other political subdivision thereof and any United States 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.
"Ineligible Receivable" shall have the meaning specified in Section
2.4(d)(iii).
"Initial Closing Date" shall mean [ ] 1997.
"Initial Investor Amount" shall mean, with respect to any Series, the
amount specified in the applicable Supplement.
"Insurance Charges" shall mean, with respect to any Account, the monthly
premiums charged to the related Obligor with respect to any Insurance Policies.
"Insurance Policies" shall mean any credit life or health, accident or
supplemental or other insurance plans offered by or through the Transferor or
any Seller with respect to the Accounts.
"Insurance Proceeds" shall mean amounts received or recovered pursuant to
any Insurance Policies.
"Interchange" shall mean interchange fees payable (whether directly or as
a result of any assignment or transfer) to the Bank, any Seller or the
Transferor, through VISA USA, Inc. and MasterCard International Incorporated,
or any other credit card organization.
"Investor Amount" shall have, with respect to each Series, the meaning
specified in the applicable Supplement.
"Investor Certificate" shall mean any one of the certificates executed by
the Transferor and authenticated by the Trustee substantially in the form
attached to the applicable Supplement.
"Investor Certificateholder" shall mean the holder of record of an
Investor Certificate.
"Investor Charge Offs" shall have, with respect to each Series, the
meaning specified in the applicable Supplement.
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"Investor Default Amount" shall mean, with respect to each Series for any
Monthly Period, an amount equal to the product of (a) the Default Amount for
such Monthly Period and (b) the related Investor Percentage for such Monthly
Period.
"Investor Monthly Servicing Fee" shall have, with respect to each Series,
the meaning specified in Section 3.2.
"Investor Percentage" shall have, with respect to each Series, the meaning
specified in the applicable Supplement.
"Knowledge" or "knowledge" as used with respect to a Person (including
references to such Person being aware of a particular matter) shall mean those
facts that are known or should reasonably have been known after due inquiry,
except as to the Trustee who shall have no duty of inquiry except as provided
in this Agreement, by the chairman, president, chief financial officer, chief
accounting officer, chief operating officer, chief credit officer, general
counsel, any assistant or deputy general counsel, or any senior or executive
vice president of such Person or the vice president of credit administration or
the treasurer, and, except in the case of the Trustee unless otherwise provided
by this Agreement, the knowledge of any such persons obtained or which would
have been obtained from a reasonable investigation.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, participation, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority right or interest or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing and the filing of any financing statement under the Uniform
Commercial Code (other than any such financing statement filed for
informational purposes only) or comparable law of any jurisdiction to evidence
any of the foregoing.
"Manager" shall mean the managing underwriter of Certificates of any
Series that are offered to the public.
"Minimum Aggregate Principal Receivables" shall mean the sum of the
numerators used to determine Investor Percentages with respect to Principal
Receivables for each Series outstanding for such period.
"Minimum Transferor Amount" shall mean the product of the aggregate
Adjusted Investor Amount for all Series outstanding and the Minimum Transferor
Interest Percentage.
"Minimum Transferor Interest Percentage" shall mean the highest percentage
determined in accordance with the definitions of "Minimum Transferor Interest
Percentage" specified in the Supplements for all outstanding Series.
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"Monthly Period" shall mean, unless otherwise provided in a Supplement,
the period from and including the first day of a calendar month to and
including the last day of such calendar month.
"Monthly Servicing Fee" shall have the meaning specified in Section 3.2.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Net Worth" shall mean, with respect to the Transferor and at any time, an
amount equal to the aggregate outstanding principal amount of all Eligible
Receivables at such time, minus the aggregate outstanding amount of all
Investor Certificates at such time, minus the outstanding principal amount at
such time of the subordinated note, if any, issued by the Transferor in
connection with the Receivables Purchase Agreement entered into with any
Eligible Originator, minus any other liabilities of the Transferor, plus, if
all of the subordinated notes of the Transferor have zero balances outstanding,
all cash of the Transferor.
"1933 Act" shall mean the United States Securities Act of 1933, as
amended.
"1940 Act" shall mean the United States Investment Company Act of 1940, as
amended.
"Obligations" shall have the meaning specified in Section 2.1.
"Obligor" shall mean, with respect to any Account, the Person or Persons
obligated to make payments with respect to such Account, including any
guarantor thereof.
"Officer's Certificate" shall mean a certificate signed by any Executive
or Senior Vice President or the Vice President of Credit Administration or the
Treasurer or more senior officer of either of the Transferor or the Servicer
and delivered to the Trustee.
"Opinion of Counsel" shall mean a written opinion of independent outside
counsel, who may be counsel for the Transferor or its Affiliates, and which
shall be reasonably acceptable to the Trustee.
"Paired Series" shall mean (i) each Series that has been paired with
another Series (which Series may be prefunded or partially prefunded), such
that the reduction of the Investor Amount of such Series results in the
increase of the Investor Amount of such other Series.
"Pay Out Event" shall have, with respect to each Series, the meaning
specified in Section 9.1.
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"Paying Agent" shall mean any paying agent appointed pursuant to Section
6.6 and shall initially be the Trustee.
"PCC" shall mean Xxxxxxxx'x Credit Corporation and its successors and
assigns.
"Permitted Investments" include (i) direct obligations of, and obligations
fully guaranteed by the United States of America, (ii) demand deposits, time
deposits or certificates of deposit 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, and any domestic branch or
agency of any foreign bank), and which are subject to supervision and
examination by federal or state banking or depository institution authorities;
provided, however, that the commercial paper, if any, and short-term unsecured
debt obligations of such depository institution or trust company shall have, at
the time of the Trust's investment or contractual commitment to invest therein,
a credit rating from the Rating Agency in the highest investment category
granted by such Rating Agency, (iii) commercial paper having, at the time of
the Trustee's investment or contracted commitment to invest therein, a rating
in the highest investment category granted by such Rating Agency, (iv) bankers'
acceptances issued by any depository institution or trust company described in
clause (ii) above, (v) money market funds which have the highest rating from,
or have otherwise been approved in writing by the Rating Agencies, (vi) time
deposits (having maturities of not more than 30 days) or notes which are
payable on demand by an entity the commercial paper of which has a rating of
the highest investment category granted by the Rating Agencies, (vii) certain
repurchase obligations involving Permitted Investment instruments so long as
the counterparty thereto has, at the time of such investment, a short term debt
rating of at least A-1 or P-1, or the equivalent from the applicable Rating
Agencies, and (viii) any other investments approved in writing by the
applicable Rating Agencies prior to the Trust's investment therein.
"Person" shall mean any legal person, including any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, limited liability company, Governmental
Authority or other entity of similar nature.
"Principal Account" shall have the meaning specified in each Supplement.
"Principal Amortization Period" shall have, with respect to any Series,
the meaning, if any, specified in the applicable Supplement.
"Principal Receivables" shall mean Receivables other than Finance Charge
Receivables and Receivables in Defaulted Accounts.
"Principal Sharing Series" shall mean a Series that, pursuant to the
Supplement therefor, is entitled to receive Shared Principal Collections.
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"Principal Shortfalls" shall have, generally, the meaning specified in
Section 4.1(h), and specifically, with respect to any Series, the meaning
specified in the applicable Supplement.
"Publication Date" shall have the meaning specified in Section 9.2(a).
"Principal Terms" shall have, with respect to any Series issued pursuant
to an Exchange, the meaning specified in Section 6.9.
"Qualified Institution" shall mean (i) a depositary institution or trust
company, which may include 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 or agency of any foreign bank), the deposits in which are
insured by the FDIC and which at all times has a short-term unsecured debt or
certificate of deposit rating of at least A-1 or P-1 or a long-term unsecured
debt rating of at least AAA or Aaa or the equivalent, as applicable, by each
Rating Agency or (ii) a depository institution, which shall include the
Trustee, otherwise acceptable to each Rating Agency rating any Series;
provided, however, that an institution which shall have corporate trust powers
and which maintains the Collection Account, the Excess Funding Account, the
Principal Account or any other account maintained for the benefit of
Certificateholders as a fully segregated trust account with the trust
department of such institution shall not be required to meet the foregoing
rating requirements.
"Rapid Amortization Period" shall have, with respect to any Series, the
meaning, if any, specified in the applicable Supplement.
"Rating Agency" shall mean, with respect to any Series, each nationally
recognized statistical rating agency or agencies, if any, selected by the
Transferor to rate the Investor Certificates of such Series.
"Rating Agency Condition" shall mean, with respect to any action, that
each Rating Agency shall have notified the Transferor and the Trustee in
writing that such action will not result in a reduction or withdrawal of its
rating of any outstanding Series with respect to which it is a Rating Agency.
"Reassignment" shall have the meaning specified in Section 2.7(b).
"Receivable" shall mean any amount owing by an Obligor under an Account,
including any Additional Account, from time to time, including, without
limitation, amounts owing for the payment of merchandise and services,
Insurance Charges, service contract charges, Finance Charges and all other fees
and charges. In calculating the aggregate amount of Receivables on any day, the
amount of Receivables shall be reduced by the aggregate amount of credit
balances, and other adjustments stated in Section 3.8 hereof, in the Accounts
on such day. Any Receivables which the Transferor
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is unable to transfer as provided in Section 2.5(d) shall not be included in
calculating the aggregate amount of Receivables.
"Receivables Purchase Agreements" shall mean (i) the receivables purchase
agreements dated as of _____, 1997 between the Transferor, as purchaser, and
each of X. X. Xxxxxxxxx'x, Inc., XxXxx'x, Inc., Parisian, Inc. and Xxxxxxxx'x,
Inc., in each case as Seller, as each such agreement may be amended from time
to time, and (ii) any other receivables purchase agreement between a Seller of
Receivables and the Transferor, substantially in the form of the receivables
purchase agreements referred to in clause (i) above.
"Record Date" shall mean, unless otherwise specified with respect to a
Series in the applicable Supplement, with respect to any Distribution Date, the
close of business on the last Business Day of the immediately preceding
calendar month.
"Recoveries" shall mean all amounts (including Insurance Proceeds, if any)
received by the Servicer with respect to Receivables in Defaulted Accounts.
"Registered Certificates" shall have the meaning specified in Section 6.1.
"Relevant UCC State" shall mean all jurisdictions where UCC filings are
required to perfect and maintain the security interest of the Trustee.
"Removal Date" shall have the meaning specified in Section 2.7(a).
"Removal Notice Date" shall have the meaning specified in Section 2.7(a).
"Removed Accounts" shall have the meaning specified in Section 2.7(a).
"Repurchase Terms" shall mean, with respect to any Series issued pursuant
to an Exchange, the terms and conditions under which the Transferor may
repurchase such Series of Certificates pursuant to Section 12.2 and the related
Supplement.
"Requirements of Law" shall mean, with respect to any Person, the
certificate or articles of incorporation or articles of association and the
by-laws or other organizational or governing documents of such Person, and any
law, treaty, rule or regulation, or determination of an arbitrator or
Governmental Authority, in each case applicable to or binding upon such Person
or to which such Person is subject, whether federal, state or local (including,
but not limited to, usury laws, the federal Truth in Lending Act, and
Regulations B and Z of the Board of Governors of the Federal Reserve System).
"Responsible Officer" shall mean, with respect to the Trustee, for
purposes of this Agreement, any Vice President, Assistant Vice President,
Assistant Secretary or Assistant Treasurer of the Corporate Trust Department in
Minneapolis, Minnesota or any trust officer, or any officer of the Trustee
customarily performing functions similar to
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those performed by the person who at the time shall be such officers, or to
whom any corporate trust matter is referred because of his knowledge of and
familiarity with a particular subject, who shall, in any case, be working in
the Asset Backed Securities Group, or any successor thereto responsible for the
administration of this Agreement.
"Revolving Period" shall mean, with respect to each Series, the period
from and including the date of initial issuance of the Investor Certificates of
such Series to, but not including, the day on which an Amortization Period for
such Series commences.
"Sellers" initially shall mean X.X. Xxxxxxxxx'x, Inc., XxXxx'x, Inc.,
Parisian, Inc. and Xxxxxxxx'x, Inc. and their successors and assigns, and,
subject only to the Rating Agency Condition, such other Affiliates of the
Company as the Transferor may designate from time to time, and which may
include the Bank.
"Series" shall mean any Series of Investor Certificates, each as
designated in the applicable Supplement (including any Enhancement Investor
Amount related thereto).
"Servicer" shall mean initially Xxxxxxxx'x, Inc. and any Person thereafter
appointed as Successor Servicer as herein provided to service the Receivables.
"Servicer Default" shall have the meaning specified in Section 10.1.
"Service Transfer" shall have the meaning specified in Section 10.1.
"Servicing Fee Percentage" shall have, with respect to any Series, the
meaning specified in the applicable Supplement.
"Servicing Officer" shall mean any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Receivables whose name
appears on a list of servicing officers furnished to the Trustee by the
Servicer, as such list may from time to time be amended.
"Shared Excess Finance Charge Collections" shall have, generally, the
meaning provided in Section 4.1(i), and specifically, with respect to any
Series, the meaning specified in the applicable Supplement.
"Shared Principal Collections" shall have generally the meaning specified
in Section 4.1(h) and specifically, with respect to any Series, the meaning
specified in the applicable Supplement.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
Division of The XxXxxx-Xxxx Companies, Inc.
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"Stated Series Termination Date" shall have, with respect to any Series,
the meaning specified in the applicable Supplement.
"Subservicer" shall mean initially XxXxx'x, Inc. and any Person thereafter
appointed by the Servicer as subservicer of the Receivables.
"Successor Servicer" shall have the meaning specified in Section 10.2.
"Supplement" shall mean, with respect to any Series, a supplement to this
Agreement complying with the terms of Section 6.9, executed in conjunction with
any issuance of any Series.
"Tax Opinion" shall have the meaning specified in Section 6.9(b).
"Termination Notice" shall have, with respect to any Series, the meaning
specified in Section 10.1.
"Transfer Agent and Registrar" shall have the meaning specified in Section
6.3 and initially shall be the Trustee.
"Transferred Account" shall mean a consumer revolving credit card account
with respect to which a new credit card account number has been issued by the
Servicer or the Transferor in accordance with the Credit Card Guidelines, and
which can be traced or identified by reference to or by way of the computer
files, or written microfiche lists delivered to the Trustee pursuant to
Sections 2.1 and 2.6 as an Account which has been transferred (including such
transfers occurring between the Cut-Off Date and the Initial Closing Date).
"Transferor" shall mean PCC or any successor or assign that is an
Affiliate of the Company, including the Bank, as transferor of the Receivables
to the Trust, provided that each successor or assign, on the effective date it
becomes Transferor, has the Minimum Net Worth specified in Section 2.5(f)
hereof, and except in the case of the Bank, meets the separate business
requirements of Section 2.5(g) hereof.
"Transferor Amount" shall mean, on any date of determination, the
Aggregate Principal Receivables at the end of the day immediately prior to such
date of determination, plus the Excess Funding Amount at the end of such day,
minus the Aggregate Investor Amount at the end of such day, minus any
Enhancement Investor Amount at the end of such day (to the extent not included
in the Aggregate Investor Amount).
"Transferor Interest" shall have the meaning specified in Section 4.1(b).
"Transferor Interest Percentage" shall mean, on any date of determination,
the Transferor Amount divided by the Aggregate Principal Receivables.
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"Transferor Percentage" shall mean, on any date of determination, when
used with respect to Collections of Principal Receivables, Finance Charge
Receivables and Receivables in Defaulted Accounts, one hundred percent (100%)
minus the Aggregate Investor Percentage as calculated on such date with respect
to such categories of Receivables by the Servicer.
"Trust" shall mean the trust created by this Agreement, the corpus of
which shall consist of the Trust Property.
"Trust Property" shall have the meaning specified in Section 2.1(b).
"Trustee" shall mean the institution executing this Agreement as trustee,
the successor to its corporate trust business, or its successor in interest, or
any successor trustee appointed as herein provided.
"UCC" shall mean the Uniform Commercial Code, as amended from time to
time, as in effect in any specified jurisdiction.
"Undivided Interest" shall mean the undivided interest of any
Certificateholder in the Trust.
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS.
All terms defined in any Supplement or this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein. The definitions of
all terms defined herein shall include the singular as well as the plural form
of such terms and the masculine of such terms as well as the feminine and
neuter genders of such terms. The terms "include", "including" or "includes"
shall mean including without limitation by way of enumeration or otherwise.
As used herein and in any certificate or other document made or delivered
pursuant hereto or thereto, accounting terms not defined in Section 1.1, and
accounting terms partly defined in Section 1.1 to the extent not defined, shall
have the respective meanings given to them under generally accepted accounting
principles on the date of determination. To the extent that the definitions of
accounting terms herein are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained herein
shall control.
The agreements and representations and warranties of Xxxxxxxx'x, Inc. in
this Agreement in its capacity as Servicer, shall be deemed to be the
agreements, representations and warranties of Xxxxxxxx'x, Inc. solely in such
capacity for so long as it acts in such capacity under this Agreement.
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The words "hereof," "herein" and "hereunder" and words of similar import
when used in this Agreement shall refer to any Supplement or this Agreement as
a whole and not to any particular provision of such Supplement or this
Agreement, as the case may be; Section, subsection, Schedule and Exhibit
references contained in this Agreement or any Supplement are references to
Sections, subsections, Schedules and Exhibits in or to this Agreement or any
Supplement unless otherwise specified.
ARTICLE II
APPOINTMENT OF TRUSTEE;
CONVEYANCE OF RECEIVABLES;
ISSUANCE OF CERTIFICATES
SECTION 2.1 APPOINTMENT OF TRUSTEE; CONVEYANCE OF RECEIVABLES. (a) The
Transferor appoints and authorizes Norwest Bank Minnesota, National Association
to act as Trustee as provided herein and to exercise such powers under this
Agreement as are delegated to the Trustee by the terms hereof together with all
such powers, obligations and duties as are reasonably incidental thereto. The
Trustee hereby accepts such appointment and agrees to exercise such powers and
perform such functions on behalf of the Certificateholders from time to time as
are specifically delegated to the Trustee by the terms hereof.
(b) The Transferor does hereby transfer, assign, set-over, and otherwise
convey to the Trust for the benefit of the Certificateholders, without
recourse, all right, title and interest of the Transferor in and to the
Receivables, now existing and hereafter created, all monies due or to become
due with respect thereto (including all Finance Charges and Recoveries and
Interchange, if any) on and after the Cut-Off Date, and all proceeds of such
Receivables (including Insurance Proceeds). Such property, together with all
monies as are from time to time deposited in the Collection Account, the Excess
Funding Account and any other account or accounts maintained for the benefit of
the Certificateholders and all monies as are from time to time available under
any Enhancement for any Series for payment to Certificateholders shall
constitute the property of the Trust (the "Trust Property"). The foregoing
transfer, assignment, set-over and conveyance does not constitute and is not
intended to result in a creation or an assumption by the Trust, the Trustee or
any Certificateholder of any obligation of the Servicer, the Transferor, any
Seller, any Eligible Originator or any other Person in connection with the
Accounts, the Receivables or under any agreement or instrument relating thereto
including, without limitation, any obligation to any Obligors, merchant service
establishments or insurers.
In connection with such transfers, the Transferor agrees to record and
file, at its own expense, financing statements (and assignment and continuation
statements with respect to such financing statements when applicable) with
respect to the Receivables now existing and hereafter created for the transfer
of chattel paper, accounts and general
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intangibles (each as defined in the UCC in effect in the Relevant UCC State)
meeting the requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect the transfers and assignments of the
Receivables by the Transferor to the Trust, and to deliver to the Trustee a
file-stamped copy of such financing statements or other evidence that such
filings were made on or prior to the Initial Closing Date.
In connection with such transfers, the Transferor agrees, at its own
expense, on or prior to the Initial Closing Date to cause the Servicer to
indicate or cause to be indicated clearly and unambiguously in the computer
files of the Transferor and the Sellers that the Receivables created in
connection with the Accounts (other than any Additional Account or any
Automatic Additional Account included pursuant to Section 2.6(d)) have been
sold and transferred to the Transferor pursuant to the Receivables Purchase
Agreements or otherwise and thereupon by the Transferor to the Trust pursuant
to this Agreement for the benefit of the Certificateholders. The Transferor
further agrees to deliver or cause to be delivered to the Trustee (a) on the
Initial Closing Date, a computer file, microfiche or written list containing a
true and complete list of all such Accounts, identified by account number and
by Receivable balance as of the Cut-Off Date and (b) so long as Automatic
Additional Accounts are being included pursuant to Section 2.6(d), on or prior
to the first Distribution Date that occurs after March 31, June 30, September
30 and December 31 of each year and otherwise at any time upon request of the
Trustee, a new computer file, microfiche or written list containing a true and
complete list of all Accounts identified as described in the preceding clause
(a) as of the last day of the most recent Monthly Period or an Officer's
Certificate stating that the file or list of Accounts most recently delivered
pursuant to this subsection remains a true and complete list of all Accounts.
Such file or list shall be marked as Schedule 1 to this Agreement, shall be
delivered to the Trustee as confidential and proprietary information belonging
solely to the Transferor and its Affiliates, and to be used by the Trustee
solely in pursuance of its duties hereunder, and is hereby incorporated into
and made a part of this Agreement. Any such additional file or list shall be
marked as Schedule 1 to this Agreement, shall be delivered to the Trustee as
confidential and proprietary information belonging solely to the Transferor and
its Affiliates, and to be used by the Trustee solely in pursuance of its duties
hereunder, shall replace the then existing Schedule 1 hereto, and shall be
incorporated into and made a part of this Agreement. The Transferor agrees, at
its own expense, by the end of the Monthly Period in which any Transferred
Accounts have been originated to cause the Servicer to indicate or cause to be
indicated clearly and unambiguously in the computer files of the Transferor and
the Sellers that the Receivables created in connection with the Transferred
Accounts have been transferred to the Transferor and thereupon transferred by
the Transferor to the Trust pursuant to this Agreement for the benefit of the
Certificateholders.
The Transferor hereby grants to the Trustee a first priority perfected
security interest in all of the Transferor's right, title and interest in and
to the Receivables, now existing and hereafter created, all monies due or to
become due with respect thereto on and after the Cut-Off Date (including all
Finance Charge Receivables and Recoveries), all proceeds of such Receivables,
such funds as are from time to time deposited in the
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Collection Account, the Excess Funding Account and any other account or
accounts maintained for the benefit of Certificateholders, and the benefits of
any Enhancement for any Series for payment to Certificateholders in order to
secure the payment of each Series (the "Obligations"). This Agreement shall
constitute a security agreement under applicable law.
Pursuant to the request of the Transferor, the Trustee has caused
Certificates in authorized denominations evidencing the entire interest in the
Trust to be duly authenticated and delivered to or upon the order of the
Transferor pursuant to Section 6.2.
SECTION 2.2 ACCEPTANCE BY TRUSTEE.
(a) The Trustee hereby acknowledges its acceptance, as and to the extent
transferred, assigned, set over or otherwise conveyed to the Trust as provided
in Section 2.1(b) hereof, on behalf of the Trust, of all right, title and
interest previously held by the Transferor in and to the Receivables, now
existing and hereafter created, all monies due or to become due with respect
thereto on and after the Cut-Off Date (including Recoveries), all proceeds of
such Receivables, such funds as are from time to time deposited in the
Collection Account and any other account or accounts maintained for the benefit
of Certificateholders, and the benefits of any Enhancement for any Series, and
declares that it shall hold such right, title and interest, upon the trust
herein set forth, and subject to the terms hereof 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, microfiche or written
list represented by the Transferor to be the computer file, microfiche or
written list described in the third paragraph of Section 2.1(b).
(b) The Trustee hereby agrees not to use or disclose to any Person
(including any Certificateholder or Certificate Owner) any of the account
numbers, Obligor information or other information contained in the computer
files, microfiches or written lists delivered to the Trustee by the Transferor
pursuant to Sections 2.1 and 2.6, except as is required in connection with the
performance of its duties hereunder, or in connection with audits,
examinations, investigations and other inquiries which are required in
connection with the Trustee's regulatory supervision or in response to a court
order, subpoena, or other judicial or governmental demand or in enforcing the
rights of the Certificateholders or to a Successor Servicer appointed pursuant
to Section 10.2 or a successor Trustee appointed pursuant to Section 11.8. The
Trustee agrees to take such measures as shall be reasonably necessary or
reasonably requested by the Transferor to protect and maintain the security and
confidentiality of such information.
(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.
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SECTION 2.3 REPRESENTATIONS AND WARRANTIES REGARDING THE TRANSFEROR.
The Transferor hereby represents and warrants to the Trustee, on
behalf of the Trust, with respect to any Series of Certificates, as of the date
of the related Supplement and the related Closing Date, unless otherwise stated
in such Supplement that:
(i) Organization and Good Standing. The Transferor is a corporation,
duly incorporated, validly existing and in good standing under the laws
of its jurisdiction of incorporation, and has full power, authority and
legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted,
to execute, deliver and perform its obligations under this Agreement, any
Supplement hereto and the Receivables Purchase Agreements and to execute
and deliver to the Trustee the Certificates pursuant hereto.
(ii) Due Qualification. The Transferor is duly qualified to do
business and is in good standing (or is exempt from such requirements)
and has obtained all necessary licenses and approvals with respect to the
Transferor, in each jurisdiction in which failure to so qualify or to
obtain such licenses and approvals would render any Account Agreement
relating to an Account or any Receivable unenforceable by it or the Trust
or would have a material adverse effect on the Investor
Certificateholders or on the Transferor's or the Servicer's ability to
perform their respective obligations under this Agreement or any
Supplement; provided, however, that no representation or warranty is made
with respect to any qualifications, licenses or approvals which the
Trustee would have to obtain to do business in any state in which the
Trustee seeks to enforce any Receivable.
(iii) Due Authorization. The execution and delivery of this
Agreement and any Supplement and the execution and delivery to the
Trustee of the Certificates and the consummation of the transactions
provided for in this Agreement and any Supplement by the Transferor have
been duly authorized by the Transferor by all necessary corporate action
on the part of the Transferor.
(iv) No Violation. The execution and delivery of this Agreement, any
Supplement and the Certificates by the Transferor, the performance by the
Transferor of the transactions contemplated by this Agreement and any
Supplement and the fulfillment by the Transferor of the terms hereof and
thereof will not conflict with, violate or 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 default under, any Requirement of Law
applicable to the Transferor or any indenture, contract, agreement,
mortgage, deed of trust or other instrument to which the Transferor is a
party or by which it
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or any of its properties are bound and which conflict, violation, breach
or default would have a material adverse effect on the Transferor.
(v) No Proceedings. There are no proceedings or investigations
pending or, to the knowledge of the Transferor, threatened against the
Transferor before any court, regulatory body, administrative agency,
arbitrator or other tribunal or governmental instrumentality (i)
asserting the invalidity of this Agreement, any Supplement or the
Certificates, (ii) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by this
Agreement, any 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 or any Supplement,
(iv) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement, any
Supplement or the Certificates or (v) seeking to affect adversely the
federal income tax attributes of the Trust.
(vi) Eligibility of Accounts. As of the applicable Cut-Off Date or
Additional Account Cut-Off Date, each Account was an Eligible Account and
no selection procedures adverse to the Investor Certificateholders have
been employed in selecting the Accounts.
(vii) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental
Authority required to be obtained on or prior to the date as of which
this representation is being made in connection with the execution and
delivery by the Transferor of this Agreement, any Supplement and the
Certificates, the performance by the Transferor of the transactions
contemplated by this Agreement and any Supplement and the fulfillment by
the Transferor of the terms hereof and thereof, have been obtained;
provided, however, that no representation or warranty is made regarding
state securities or "blue sky" laws in connection with any offer or sale
of the Certificates.
(viii) Amount of Receivables; Computer File. As of the Cut-Off Date,
the amount of Receivables was $__________. The computer files, microfiche
or written list delivered pursuant to Section 2.1 hereof is complete and
accurately reflects the information regarding the Receivables under the
Accounts in all material respects as of the applicable time referred to
in Section 2.1.
(ix) No Insolvency. The Transferor is not insolvent
immediately prior to any transfer of Accounts and Receivables
hereunder, and will not be rendered insolvent immediately
following such transfer.
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(x) No Investment Company. The Transferor is not an investment
company subject to registration or regulation under the 1940 Act.
In the event the Bank or another Affiliate of the Company is
substituted for PCC as Transferor, such Affiliate shall, immediately prior to
becoming the Transferor, make the representations and warranties set forth in
this Section 2.3, as of the date of its becoming the Transferor, in an
Officer's Certificate delivered to the Trustee and the Rating Agencies. The
representations and warranties set forth in this Section 2.3 shall survive the
transfer and assignment of the Receivables to the Trust. Upon discovery by the
Transferor, the Servicer or the Trustee of a breach of any of the
representations and warranties set forth in this Section 2.3, the party
discovering such breach shall give prompt written notice thereof to the others.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR
RELATING TO THE AGREEMENT AND ANY SUPPLEMENT AND THE RECEIVABLES.
(a) Binding Obligation; Valid Transfer and Assignment. The
Transferor hereby represents and warrants to the Trustee, on behalf of the
Trust, with respect to any Series of Certificates, as of the Cut-Off Date or
the date of the related Supplement and the related Closing Date, unless
otherwise stated in such Supplement that:
(i) Each of this Agreement and any Supplement constitutes a legal,
valid and binding obligation of the Transferor, enforceable against the
Transferor in accordance with its terms, subject to applicable
bankruptcy, insolvency, receivership, conservatorship, reorganization,
moratorium or other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights in general and the rights of creditors
of national banking associations and except as such enforceability may be
limited by general principles of equity (whether considered in a
proceeding at law or in equity).
(ii) This Agreement or, in the case of Receivables in Additional
Accounts, the related Assignment constitutes either (A) a valid transfer
and assignment to the Trust of all right, title and interest of the
Transferor in and to the Receivables now existing and hereafter created
and (x) acquired by the Transferor pursuant to the Receivables Purchase
Agreements or (y) originated by the Bank, all monies due or to become due
with respect thereto (including all Finance Charge Receivables,
Recoveries, Interchange, if any, and amounts held in any of the accounts
established for the benefit of Certificateholders) on and after the
Cut-Off Date or Additional Account Cut-Off Date or Creation Date, as
applicable, and all proceeds (as defined in the UCC as in effect in the
Relevant UCC State) of such Receivables, and such Receivables and all
proceeds thereof will be held by the Trust free and clear of any Lien of
any Person claiming through or under the
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Transferor or any of its Affiliates except for (a) Liens permitted under
Section 2.5(b), (b) the interest of the Transferor as holder of the
Exchangeable Transferor Certificate or any other class of Certificates
held by the Transferor from time to time and (c) any right of the holder
of the Exchangeable Transferor Certificate to receive interest accruing
on, and investment earnings (net of investment losses and expenses) with
respect to, the Collection Account and any other account or accounts
maintained for the benefit of Certificateholders or any Enhancement
Provider, if any, as provided in this Agreement and any Supplement, or
(B) a grant of a security interest (as defined in the UCC as in effect in
the Relevant UCC State) in such property to the Trustee on behalf of the
Trust, which is enforceable with respect to existing Receivables (other
than Receivables in Additional Accounts) and the proceeds thereof (to the
extent set forth in Section 9-306 of the UCC in effect in the Relevant
UCC State) upon execution and delivery of this Agreement, and which will
be enforceable with respect to such Receivables thereafter created, and
the proceeds thereof to such extent, upon such creation. If this
Agreement constitutes the grant of a security interest to the Trust in
such property, upon the filing of the applicable financing statements and
in the case of the Receivables hereafter created and proceeds thereof
upon such creation, the Trust shall have a first priority perfected
security interest in such property and the proceeds thereof (to the
extent set forth in Section 9-306 of the UCC in effect in the Relevant
UCC State), except for Liens permitted under Section 2.5(b). Except as
otherwise specifically provided in this Agreement or any Supplement,
neither the Transferor nor any Person claiming through or under the
Transferor shall (other than as a result of such Person being a Holder of
Certificates) have any claim to or interest in the Collection Account or
any other account or accounts maintained for the benefit of
Certificateholders or any Enhancement Provider, except for any right of
the Transferor to receive interest accruing on, and investment earnings
with respect to, any such account as provided in this Agreement and any
Supplement and, if this Agreement constitutes the grant of a security
interest in such property, except for the interest of the Transferor in
such property as a debtor for purposes of the UCC as in effect in the
Relevant UCC State.
(b) Eligibility of Receivables. The Transferor hereby represents and
warrants to the Trustee, on behalf of the Trust, as of the Cut-Off Date or
Creation Date, as applicable, and in the case of Receivables in Additional
Accounts, as of the related Additional Account Cut-Off Date, that (i) each
Receivable then existing is an Eligible Receivable, and (ii) as of the Initial
Closing Date, and, as of the applicable Additional Account Cut-Off Date with
respect to Additional Accounts, and as of the applicable Distribution Date on
which a computer file, microfiche or written list is delivered pursuant to
Section 2.1(b) with respect to Automatic Additional Accounts included
automatically pursuant to Section 2.6(d), Schedule 1 to this Agreement is in
all material respects an accurate and complete
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listing of all the Accounts as of the Cut-Off Date or the applicable Additional
Account Cut-Off Date or the applicable Creation 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 such applicable Cut-Off Date or Additional Account Cut-Off Date
or Creation Date. On each day on which any new Receivable is created, the
Transferor shall be deemed to represent and warrant to the Trust that each
Receivable created on such day is an Eligible Receivable.
(c) Notice of Breach. The representations and warranties set forth in this
Section 2.4 shall survive the transfer and assignment of the Receivables to the
Trust and the termination of the rights and obligations of the Servicer
pursuant to Section 10.1. Upon discovery by the Transferor, the Servicer or the
Trustee of a breach of any of the representations and warranties set forth in
this Section 2.4, the party discovering such breach shall give prompt written
notice thereof to the others.
(d) Transfer of Ineligible Receivables.
(i) Automatic Removal. In the event that a Receivable is not an
Eligible Receivable as a result of the failure to satisfy the conditions
set forth in clause (iv) of the definition of Eligible Receivable, and
either of the following two conditions is met:
(A) the Lien upon the subject Receivable (1) ranks prior to
the Lien created pursuant to this Agreement, (2) arises in
favor of the United States of America or any state or any
agency or instrumentality thereof or involves taxes or
liens arising under Title IV of ERISA, or (3) has been
consented to by the Transferor; or
(B) the Lien on the subject Receivable is not of the types
described in clause (A) above, but, as a result of such
breach or event, such Receivable becomes a Receivable in a
Defaulted Account or the Trust's rights in, to or under
such Receivable or its proceeds are materially impaired or
the proceeds of such Receivable are not available for any
reason to the Trust free and clear of any Lien except Liens
permitted pursuant to Section 2.5(b);
then, upon the earlier to occur of the discovery of such breach or event
by the Transferor or the Servicer or receipt by the Transferor or the
Servicer of written notice of such breach or event given by the Trustee,
each such Receivable or, at the option of the Transferor, all such
Receivables with respect to the related Account, automatically shall be
removed from the Trust on the terms and conditions set forth in Section
2.4(d)(iii).
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(ii) Removal after Cure Period. In the event of a breach of any of
the representations and warranties set forth in Section 2.4(b)(i) or (ii)
with respect to a Receivable (other than in the event that a Receivable
is not an Eligible Receivable as a result of the failure to satisfy the
conditions set forth in clause (iv) of the definition of Eligible
Receivable), and as a result of such breach or event such Receivable
becomes a Receivable in a Defaulted Account or the Trust's rights in, to
or under such Receivable or its proceeds are materially impaired or the
proceeds of such Receivable are not available for any reason to the Trust
free and clear of any Lien except Liens permitted pursuant to Section
2.5(b), then, upon the expiration of 90 days or any longer period agreed
upon by the Trustee (not to exceed an additional 90 days) from the
earlier to occur of the discovery of any such event by the Transferor or
the Servicer or receipt by the Transferor or the Servicer of written
notice of any such event given by the Trustee, each such Receivable or,
at the option of the Transferor, all such Receivables with respect to the
related Account, shall be removed from the Trust on the terms and
conditions set forth in Section 2.4(d)(iii); provided, however, that no
such removal shall be required to be made if, on any day within such
applicable period, (A) such representation and warranty with respect to
such Receivable shall then be true and correct in all material respects
as if such Receivable had been transferred to the Trust on such day, and
(B) the related Account is no longer a Defaulted Account as the result of
the breach of such representation and warranty, and the Trust's rights
in, to or under such Receivable or its proceeds are no longer materially
impaired as a result of a breach of such representation and warranty, and
the proceeds of such Receivable are available to the Trust free and clear
of all Liens resulting in the breach of such representation and warranty,
as applicable.
(iii) Removal Terms and Conditions. When required or permitted with
respect to a Receivable by the provisions of Section 2.4(d)(i) or Section
2.4(d)(ii) (an "Ineligible Receivable"), the Transferor shall accept
reassignment of such Ineligible Receivable by directing the Servicer to
deduct the principal balance of such Ineligible Receivable from the
Aggregate Principal Receivables and to decrease the Transferor Amount by
such amount. On and after the date of such removal, each Ineligible
Receivable shall be deducted from the Aggregate Principal Receivables
used in the calculation of any Investor Percentage, the Transferor
Percentage or the Transferor Amount. In the event that the exclusion of
an Ineligible Receivable from the calculation of the Transferor Amount
would cause the Transferor Amount to be reduced below the Minimum
Transfer Amount (after giving effect to the addition of any Principal
Receivables to the Trust) or would otherwise not be permitted by law, the
Transferor shall immediately deposit into the Excess Funding Account in
immediately available funds an amount equal to the amount by which the
Transferor Amount would be reduced below the Minimum Transfer Amount (or
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designate Additional Accounts pursuant to Section 2.6(b) for inclusion as
Accounts no later than 10 Business Days after such event). Any such
deposit into the Excess Funding Account in connection with the
reassignment of an Ineligible Receivable shall be considered a payment in
full of the Ineligible Receivable and such deposit shall be applied in
accordance with the provisions of Article IV. Upon the reassignment to
the Transferor of an Ineligible Receivable, the Trust shall, without
further action, be deemed to transfer, assign, set-over and otherwise
convey to the Transferor, 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 with respect thereto and all
proceeds thereof. The Trustee shall execute such documents and
instruments of transfer or assignment as are prepared by the Transferor
and take such other actions as shall reasonably be requested by the
Transferor to effect the conveyance of such Ineligible Receivable
pursuant to this subsection. In the event that on any day within 90 days,
or any longer period agreed upon by the Trustee (not to exceed an
additional 90 days), of the date on which the removal of Receivables
which are not Eligible Receivables from the Trust pursuant to this
Section is effected, (A) the applicable representations and warranties
with respect to such Receivable shall be true and correct in all material
respects on such date and (B) the Receivable is an Eligible Receivable,
the related Account is no longer a Defaulted Account and the Trust's
rights in, to or under such Receivable or its proceeds are no longer
materially impaired as a result of the breach of such representation and
warranty and the proceeds of such Receivable are available to the Trust
free and clear of all Liens resulting in the breach of such
representation and warranty, the Transferor may, but shall not be
required to, direct the Servicer to include such Receivable in the Trust.
Upon reinclusion of a Receivable in the Trust pursuant to this
subsection, the Transferor shall be deemed to make the applicable
representations and warranties in Section 2.4(b) as of the date of such
addition, as if the Receivable had been created on such date, and shall
execute all such necessary documents and instruments of transfer or
assignment and take such other actions as shall be necessary to effect
and perfect the reconveyance of such Receivable to the Trust. The
obligation of the Transferor set forth in this subsection shall
constitute the sole remedy respecting any breach by the Transferor of the
representations and warranties set forth in the above-referenced
subsections with respect to such Receivable available to
Certificateholders or the Trustee on behalf of Certificateholders.
Notwithstanding any other provision of this Section 2.4(d), a
reassignment of an Ineligible Receivable shall not occur if the Transferor
fails to make a deposit or designation of Additional Accounts required by this
Section 2.4(d) with respect to such Ineligible Receivable.
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(iv) No Impairment. For the purposes of Sections 2.4(d)(i) and
2.4(d)(ii), proceeds of a Receivable shall not be deemed to be impaired
hereunder solely because such proceeds are held by the Servicer for more
than the applicable period under Section 9-306(3) of the UCC as in effect
in the Relevant UCC State.
(e) Reassignment of Trust Portfolio. In the event of a breach of any of
the representations or warranties set forth in Sections 2.3(i), 2.3(iii),
2.4(a) or 2.4(b) or a material amount of Receivables are not Eligible
Receivables, and such event has a materially adverse effect on Investor
Certificateholders (without regard to the amount of any Enhancement), either
the Trustee or the Holders of Investor Certificates evidencing Undivided
Interests aggregating more than 50% of the Aggregate Investor Amount, by notice
then given in writing to the Transferor (and to the Trustee and the Servicer,
if given by the Investor Certificateholders), may direct the Transferor to
accept reassignment of all Receivables within 90 days of such notice, or within
such longer period as may be specified in such notice not to exceed an
additional 90 days and the Transferor shall be obligated to accept such
reassignment on a Distribution Date specified by the Transferor occurring
within such applicable period on the terms and conditions set forth below;
provided, however, that no such reassignment shall be required to be made, and
the Transferor shall not be obligated to accept such reassignment, if, at any
time during such applicable period, the representations and warranties
contained in Section 2.3(i), 2.3(iii) and 2.4(a) shall then be true and correct
in all material respects, or there shall no longer be a material amount of
Receivables which are not Eligible Receivables, as the case may be. The
Transferor shall deposit in the Collection Account on the Business Day
immediately prior to such Distribution Date (in immediately available funds) an
amount equal to the reassignment deposit amount for such Receivables for
distribution pursuant to the provisions of Section 12.3. The deposit amount for
such reassignment shall be equal to the Aggregate Investor Amount at the end of
the Business Day preceding the Distribution Date with respect to which such
deposit is made (less the aggregate principal amount, if any, held in the
Excess Funding Account and any Principal Account relating to any Series on such
Distribution Date), plus (i) an amount equal to all accrued but unpaid interest
on the Certificates of all Series at the applicable Certificate Rates through
the end of the respective interest accrual period(s) of such Series and (ii)
any other unpaid amounts with respect to such Certificates. Payment of the
reassignment deposit amount and all other amounts in the Collection Account in
respect of the preceding Monthly Period shall be considered a prepayment in
full of all such Receivables. On the Distribution Date with respect to which
such amount has been deposited in full into the Collection Account, the
Receivables and all monies due or to become due with respect thereto and all
proceeds relating thereto shall be released to the Transferor and the Trustee
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, representation or warranty, as shall reasonably be
requested by the Transferor to vest in the Transferor or its designee or
assignee, all right, title and interest of the Trust in and to the Receivables,
all monies due or to become due with respect thereto and all proceeds thereof.
If the Trustee or the Investor Certificateholders give a notice directing the
Transferor to accept reassignment as provided herein and the Transferor is
obligated to
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accept such reassignment as provided herein, then such obligation of the
Transferor shall constitute the sole remedy respecting a breach of the
representations and warranties contained in Section 2.3(i), 2.3(iii) or 2.4(a)
or there being a material amount of Receivables which are not Eligible
Receivables available to the Investor Certificateholders or the Trustee on
behalf of the Investor Certificateholders.
(f) Nothing contained in this Section 2.4 shall create an obligation on
the part of the Trustee to verify the accuracy or continued accuracy of the
representations or warranties contained in this Section 2.4. The Trustee shall
have no obligation to give any notice pursuant to this Section 2.4 unless a
Responsible Officer of the Trustee has actual knowledge of facts which would
permit the giving of such notice.
SECTION 2.5 COVENANTS OF THE TRANSFEROR AND THE SERVICER. The
Transferor and the Servicer hereby each covenant as follows:
(a) Receivables Not to be Evidenced by Instruments. The Transferor and the
Servicer will take no action to cause any Receivable to be evidenced by any
instrument (as defined in the UCC as in effect in the Relevant UCC State).
(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,
whether now existing or hereafter created, or any interest therein; the
Transferor will notify the Trustee of the existence of any Lien on any
Receivable transferred by the Transferor immediately upon discovery thereof;
and the Transferor will defend the right, title and interest of the Trust in,
to and under the Receivables, 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 2.5(b) shall prevent or be
deemed to prohibit the Transferor from suffering to exist upon any of the
Receivables any Liens for state, municipal or other local taxes and other
governmental charges if such taxes or governmental charges 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 under generally accepted accounting
principles with respect thereto; and provided, further, that nothing in this
subsection shall prohibit the Transferor from conveying an interest in the
Exchangeable Transferor Certificate in accordance with Section 6.3(b) hereof.
(c) Account Agreements and Credit Card Guidelines. The Transferor and the
Servicer shall comply, and shall cause the Eligible Originators to comply with
and perform, their respective obligations under the applicable Account
Agreements relating to the Accounts and the Credit Card Guidelines except
insofar as any failure so to comply or perform would not materially and
adversely affect the rights of the Trust or the Investor Certificateholders
hereunder (without regard to the amount of any Enhancement) or under the
Certificates. Subject to compliance with all Requirements of Law, the failure
to comply with which would have a material adverse effect on the Investor
Certificateholders (without regard to the amount of any Enhancement), the
Transferor or the Servicer may
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change, or cause any Eligible Originator to change, the terms and provisions of
the Account Agreements or the Credit Card Guidelines in any respect (including,
without limitation, the calculation of the amount, or the timing, of charge
offs) as follows: (a) if the Transferor owns a comparable segment of accounts,
then such change shall be made applicable to such comparable segment of the
accounts owned and serviced by the Transferor that have characteristics the
same as, or substantially similar to, the Accounts that are the subject of such
change, and (ii) if the Transferor or the applicable Eligible Originator does
not own such a comparable segment, then the Transferor will not make or cause
to be made any such change with the intent to materially benefit the Transferor
over the Investor Certificateholders.
(d) 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, without limitation, by reason of the
application of the provisions of Section 9.2 or an order by any Federal
governmental agency having regulatory authority over the Transferor or an order
of any court of competent jurisdiction that the Transferor not transfer any
additional Receivables to the Trust) then, in any such event, (A) the
Transferor agrees (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 Finance Charge Receivables) with respect to Principal
Receivables transferred to the Trust prior to the occurrence of such event, and
all amounts which would have constituted Collections (including Collections of
Finance Charge Receivables) with respect to such Receivables which would have
been Principal Receivables but for the Transferor's inability to transfer such
Receivables to the Trust (up to an aggregate amount equal to the Aggregate
Principal Receivables in the Trust on such date); (B) the Transferor agrees to
have such amounts applied as Collections in accordance with Article IV; and (C)
for only so long as the allocation and application of such Collections and all
amounts which would have constituted Collections are made in accordance with
clauses (A) and (B) above, Collections of Principal Receivables and all amounts
which would have constituted Collections of Principal Receivables but for the
Transferor's inability to transfer Receivables to the Trust which are charged
off as uncollectible in accordance with this Agreement and the Credit Card
Guidelines shall continue to be allocated in accordance with Article IV and all
amounts which would have constituted Collections of Principal Receivables but
for the Transferor's inability to transfer Receivables to the Trust shall be
deemed to be Collections of Principal Receivables for the purpose of
calculating the applicable Investor Percentage and the Aggregate Investor
Percentage thereunder. If the Transferor is unable pursuant to any Requirement
of Law to allocate Collections as described above, the Transferor agrees that
it shall, in any such event, and to the extent not prohibited by law, allocate,
after the date that the Transferor becomes unable to allocate Collections as
described above, payments on each Account with respect to the balance of such
Account first to the oldest Receivable in such Account and to have such
payments applied as Collections in accordance with Article IV.
(e) Delivery of Collections. In the event that the Transferor receives
Collections, the Transferor agrees to pay to the Servicer all payments received
by the Transferor with
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respect to Collections on the Receivables promptly after receipt thereof by the
Transferor, but in no event later than two (2) Business Days after the receipt
by the Transferor thereof.
(f) Minimum Net Worth of Transferor.
(i) On the date of this Agreement, the Transferor shall have a Net
Worth of at least $10,000,000.
(ii) The Transferor shall make no distributions of dividends or
returns of capital comprising its Net Worth except to the extent that,
after giving effect thereto, the Transferor shall have a Net Worth at
least equal to 10% of the highest balance of Aggregate Principal
Receivables outstanding with respect to the immediately preceding twelve
(12) calendar month period.
(g) Separate Business. Unless the Bank is serving as Transferor, the
Transferor, shall at all times (a) to the extent the Transferor's office
is located in the offices of Xxxxxxxx'x, Inc. or any Affiliate of
Xxxxxxxx'x, Inc., pay fair market rent for its executive office space
located in the offices of Xxxxxxxx'x, Inc., or any Affiliate of
Xxxxxxxx'x, Inc., (b) have at all times at least two members of its board
of directors who are not and, within the immediately preceding two (2)
years, have not been employees, officers or directors of Xxxxxxxx'x,
Inc., or any Affiliate of Xxxxxxxx'x, Inc. or of any major creditor of
Xxxxxxxx'x, Inc. or any Affiliate of Xxxxxxxx'x, Inc. and are persons who
are familiar and have experience with asset securitization, (c)
maintain the Transferor's books, financial statements, accounting records
and other corporate documents and records separate from those of
Xxxxxxxx'x, Inc. or any other entity, (d) not commingle the Transferor's
assets with those of Xxxxxxxx'x, Inc. or any other entity, (e) act solely
in its corporate name and through its own authorized officers and agents,
(f) make investments directly or by brokers engaged and paid by the
Transferor or its agents (provided that if any such agent is an Affiliate
of the Transferor it shall be compensated at a fair market rate for its
services), (g) separately manage the Transferor's liabilities from those
of Xxxxxxxx'x, Inc. or any Affiliates of Xxxxxxxx'x, Inc. and pay its own
liabilities, including all administrative expenses, from its own separate
assets, except that Xxxxxxxx'x, Inc. may pay the organizational expenses
of the Transferor, and (h) pay from the Transferor's assets all
obligations and indebtedness of any kind incurred by the Transferor. The
Transferor shall abide by all corporate formalities, including the
maintenance of current minute books, and the Transferor shall cause its
financial statements to be prepared in accordance with generally accepted
accounting principles in a manner that indicates the separate existence
of the Transferor and its assets and liabilities. Except as provided
herein or in the Receivables Purchase Agreements the Transferor shall (i)
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pay all its liabilities, (ii) not assume the liabilities of Xxxxxxxx'x,
Inc. or any Affiliate of Xxxxxxxx'x, Inc., (iii) not lend funds or extend
credit to Xxxxxxxx'x, Inc., or any Affiliate of Xxxxxxxx'x, Inc., except
pursuant to a Receivables Purchase Agreement in connection with the
purchase of Receivables thereunder, (iv) not guarantee the liabilities of
Xxxxxxxx'x, Inc., or any Affiliates of Xxxxxxxx'x, Inc., and (v) not own
the stock of, or any other beneficial interest in, any subsidiaries or
any other entity. The officers and directors of the Transferor (as
appropriate) shall make decisions with respect to the business and
operations of the Transferor independent of and not dictated by any
controlling entity. The Transferor shall not engage in any business not
permitted by its certificate or articles of incorporation as in effect on
the date hereof, provided such certificate or articles may be amended or
changed subject only to the Rating Agency Conditions.
SECTION 2.6 ADDITION OF ACCOUNTS; REPURCHASE OF INVESTOR
CERTIFICATES.
(a) If, (1) as of the end of any Monthly Period, the Transferor Amount is
less than the Minimum Transferor Amount, the Transferor shall either (i) cause
the Trust to repurchase Investor Certificates (to the extent permitted by and
in accordance with the terms of any Supplement with respect to any Series) or
(ii) designate additional Eligible Accounts (the "Additional Accounts") to be
included as Accounts, in either case in a sufficient amount such that the
Transferor Amount as of the end of such Monthly Period after giving effect to
such repurchase or addition would have equaled or exceeded the Minimum
Transferor Amount or (2) as of the end of any Monthly Period, the Aggregate
Principal Receivables are less than the Minimum Aggregate Principal
Receivables, then the Transferor shall designate Additional Accounts to be
included as Accounts in a sufficient amount such that the Aggregate Principal
Receivables after giving effect to such designations would have been equal to
or greater than the Minimum Aggregate Principal Receivables. Receivables from
such Additional Accounts shall be transferred to the Trust on or before 10 days
following the Determination Date following such Monthly Period (the "Additional
Account Closing Date"). Failure either (i) to cause the Trust to repurchase
Investor Certificates if permitted pursuant to any Supplement or (ii) to add
Additional Accounts as required by this Section 2.6(a), shall be a Pay Out
Event with respect to the affected Series.
(b) In addition to its obligation under Section 2.6(a), the Transferor
may, but shall not be obligated to, designate from time to time Additional
Accounts to be included as Accounts.
(c) The Transferor agrees that any such transfer of Receivables from
Additional Accounts under Section 2.6(a) or (b) shall satisfy the following
conditions:
(i) On or before the fifth Business Day prior to the Additional
Account Closing Date, the Transferor shall give the Trustee and the
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Servicer written notice that such Additional Accounts will be included
and specifying the approximate aggregate amount of the Receivables to be
transferred;
(ii) On or prior to the Additional Account Closing Date, the
Transferor shall have delivered to the Trustee a written assignment (and
the Trustee shall have accepted such assignment on behalf of the Trust
for the benefit of the Investor Certificateholders and any Enhancement
Provider) in substantially the form of Exhibit B (the "Assignment") and
shall have clearly indicated in its computer files that the Receivables
created in connection with the Additional Accounts have been transferred
to the Trust and the Transferor shall have delivered to the Trustee a
computer file, microfiche or written list represented by the Transferor
to contain a true and complete list of all Additional Accounts identified
by account number and by Receivable balance in such Additional Accounts
as of the Additional Account Cut-Off Date, which computer file,
microfiche or written list shall be as of the date of such Assignment
incorporated into and made a part of such Assignment and this Agreement;
(iii) The Transferor shall represent and warrant that (x) each
Additional Account was, as of the Additional Account Cut-Off Date, an
Eligible Account, (y) no selection procedures believed by the Transferor
to be materially adverse to the interests of any outstanding Series of
Investor Certificates or any Enhancement Provider were utilized in
selecting the Additional Accounts from the available Eligible Accounts in
the Transferor's portfolio; and (z) as of the Additional Account Closing
Date, the Transferor is not insolvent and will not be made insolvent by
the transfer of the Receivables of such Additional Accounts;
(iv) The Transferor shall represent and warrant that, as of the
Additional Account Closing Date, the Assignment constitutes either (A) a
valid transfer and assignment to the Trust of all right, title and
interest of the Transferor in and to the Receivables then existing and
thereafter created in the Additional Accounts, all monies due or to
become due with respect thereto on and after the Additional Account
Cut-Off Date, Recoveries and all proceeds of such Receivables (to the
extent set forth in Section 9-306 of the UCC as in effect in the Relevant
UCC State), and such Receivables and all proceeds thereof will be
conveyed to the Trust free and clear of any Lien of any Person claiming
through or under the Transferor or any of its Affiliates, except for (x)
Liens permitted under Section 2.5(b) hereunder, (y) the interest of the
holder of the Exchangeable Transferor Certificate or any other Class of
Certificate held by the Transferor from time to time and (z) any right of
the holder of the Exchangeable Transferor Certificate to receive interest
accruing on, and investment earnings with respect to, the Collection
Account and any other
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account or accounts maintained for the benefit of Certificateholders or
any Enhancement Provider, if any, as provided in this Agreement and any
Supplement, or (B) a grant of a security interest (as defined in the UCC
as in effect in the Relevant UCC State) in such property to the Trustee
on behalf of the Trust, which is enforceable with respect to then
existing Receivables of the Additional Accounts, and the proceeds thereof
(to the extent set forth in Section 9-306 of the UCC as in effect in the
Relevant UCC State), upon the conveyance of such Receivables to the
Trust, and which will be enforceable with respect to the Receivables
thereafter created in respect of Additional Accounts, and the proceeds
thereof (to the extent set forth in Section 9-306 of the UCC as in effect
in the Relevant UCC State), upon such creation; and (C) if the Assignment
constitutes the grant of a security interest to the Trust in such
property, upon the filing of financing statements as described in Section
2.1 with respect to such Additional Accounts and in the case of such
Receivables of Additional Accounts thereafter created and the proceeds
thereof (to the extent set forth in Section 9-306 of the UCC in effect in
the Relevant UCC State) upon such creation, the Trust shall have a first
priority perfected security interest in such property, except for Liens
permitted under Section 2.5(b) hereunder;
(v) The Transferor shall deliver to the Trustee (with a copy to
the Rating Agencies), an Officer's Certificate confirming the items set
forth in paragraphs (ii), (iii) and (iv) above and paragraph (vii) below.
The Trustee may conclusively rely on such Officer's Certificate, shall
have no duty to make inquiries with regard to the matters set forth
therein and shall incur no liability in so relying;
(vi) The Transferor shall deliver to the Trustee and each Rating
Agency, an Opinion of Counsel with respect to the Receivables in the
Additional Accounts substantially in the form of Part One of Exhibit G;
(vii) The Transferor shall record and file financing statements with
respect to the Receivables then existing and thereafter created in the
Additional Accounts for the transfer of accounts, general intangibles and
chattel paper (each as defined in the UCC in effect in the Relevant UCC
State) meeting the requirements of applicable state law in such manner
and in such jurisdictions as are necessary to perfect the transfer and
assignment of the Receivables in Additional Accounts by the Transferor to
the Trust; and
(viii) The Rating Agencies shall have received from the Transferor
five (5) Business Days' notice, in the case of Additional Accounts being
added pursuant to Section 2.6(a), and ten (10) Business Days' notice, in
the case of Additional Accounts being added pursuant to Section 2.6(b),
of
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such proposed addition of Additional Accounts and, in the event that
Additional Accounts are being added pursuant to Section 2.6(b), the
Rating Agency Condition shall have been satisfied.
(d)(i)The Transferor may from time to time, at its sole discretion, subject to
and in compliance with the limitations and conditions specified below,
(x) designate Eligible Accounts to be included as Accounts as of the
applicable Creation Date ("Automatic Additional Accounts"), and (y) may
at any time discontinue or suspend designating Eligible Accounts to be
included as Automatic Additional Accounts upon written notice to the
Trustee. For purposes of this paragraph, Eligible Accounts shall be
deemed to include only Eligible Accounts (x) of a type included as
Accounts on the Initial Closing Date or any Additional Account Closing
Date or consented to in writing by each Rating Agency and (y) not
prohibited from being included as Accounts pursuant to the terms of any
Supplement. The Transferor acknowledges and agrees with the Trustee, for
the benefit of all Investor Certificateholders of all Series, that each
Account originated or acquired by the Transferor on or after the Cut Off
Date, shall be considered to be Automatic Additional Accounts
constituting Accounts, each within the meaning of the Agreement, on and
as of the applicable Creation Date of each such Account.
(ii) The Transferor shall not be permitted to designate Automatic
Additional Accounts pursuant to clause (i) above with respect to any
period of the three consecutive Monthly Periods commencing in January,
April, July or October of a calendar year, commencing in October 1997,
unless Standard & Poor's and Moody's otherwise consents in writing, if
the number of Automatic Additional Accounts designated during such period
or during any period of twelve (12) consecutive Monthly Periods would
exceed the applicable Aggregate Automatic Addition Limit.
(iii) The Transferor shall record and file financing statements with
respect to the Receivables then existing and thereafter created in the
Automatic Additional Accounts for the transfer of accounts, general
intangibles and chattel paper (each as defined in the UCC in effect in
the Relevant UCC State) meeting the requirements of applicable state law
in such manner and in such jurisdictions as are necessary to perfect the
transfer and assignment of the Receivables in Automatic Additional
Accounts by the Transferor to the Trust.
SECTION 2.7 REMOVAL OF ACCOUNTS.
(a) Subject to the conditions set forth below, during the Revolving
Period, the Transferor may, but shall not be obligated to, designate, from time
to time, Accounts for
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deletion and removal ("Removed Accounts") from the Accounts and accept
reconveyance of all Receivables in the Removed Accounts without notice to the
Investor Certificateholders; provided, however, that the Transferor shall not
make more than one such designation in any Monthly Period. On or before the
tenth Business Day (the "Removal Notice Date") prior to the date on which the
designated Removed Accounts will be reassigned by the Trustee to the Transferor
(the "Removal Date"), the Transferor shall give the Trustee and the Servicer
written notice that the Receivables from such Removed Accounts are to be
reassigned to the Transferor.
(b) The Transferor shall be permitted to designate and require
reassignment to it of Receivables from Removed Accounts only upon satisfaction
of the following conditions:
(i) On or prior to the Removal Date, the Transferor shall have
delivered or caused to be delivered to the Trustee for execution a
written instrument of reassignment in substantially the form of Exhibit C
(the "Reassignment") and a computer file, microfiche or written list
containing a true and complete list of all Removed Accounts identified by
account number and by the aggregate balance of the Receivables in such
Removed Accounts as of the Removal Notice Date, which computer file,
microfiche or written list shall as of the Removal Date modify, amend and
be made a part of this Agreement;
(ii) The Transferor shall represent and warrant that no
selection procedures believed by the Transferor to be materially adverse
to the interests of the Certificate Owners of any outstanding Series of
Investor Certificates or any Enhancement Provider were utilized in
selecting the Removed Accounts;
(iii) The removal of any Receivables of any Removed Accounts on any
Removal Date shall not, (a) in the reasonable belief of the Transferor,
result in a Pay Out Event or (b) cause the Transferor Amount to be less
than the Minimum Transferor Amount, and the aggregate amount of Principal
Receivables in the Trust shall not be less than the Minimum Aggregate
Principal Receivables;
(iv) The Rating Agencies shall have delivered to the Transferor a
letter confirming that the Rating Agency Condition has been satisfied;
and
(v) The Transferor shall deliver to the Trustee (with a copy to the
Rating Agencies) an Officer's Certificate confirming the items set forth
in paragraphs (i) through (iv) above. The Trustee may conclusively rely
on such Officer's Certificate, shall have no duty to make inquiries with
regard to the matters set forth therein and shall incur no liability in
so relying.
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Upon satisfaction of the above conditions, the Trustee shall execute and
deliver the Reassignment to the Transferor and take all actions and make all
deliveries contemplated therein, and the Receivables from the Removed Accounts
shall no longer constitute a part of the Trust.
SECTION 2.8 DISCOUNT OPTION RECEIVABLES.
(a) The Transferor has initially designated a percentage (the "Discount
Percentage") of the amount of Receivables arising in the Accounts that
otherwise would be treated as Principal Receivables to be treated as Finance
Charge Receivables ("Discount Option Receivables") in accordance with the
provisions of this Section 2.8. The Discount Percentage shall not apply to
Finance Charges or to Receivables in Defaulted Accounts. The Discount
Percentage may be fixed or variable, and the Transferor has designated 2% as
the initial Discount Percentage.
(b) Discount Option Receivables shall be considered Finance Charge
Receivables for all purposes hereunder, including for the purposes of
allocating Collections pursuant to Article IV.
(c) The Transferor may, without notice to or consent of the Investor
Certificateholders, from time to time, elect (the "Discount Option") to
increase the Discount Percentage, to reduce the Discount Percentage, to apply
the Discount Percentage to Receivables created in Accounts not previously
subject to the Discount Percentage and to eliminate the Discount Percentage in
respect of Receivables created in Accounts on and after the date of such change
or previously subject to the Discount Percentage; provided however, that the
Transferor shall not redesignate any existing Discount Option Receivables as
Principal Receivables and the Transferor shall not increase the Discount
Percentage upon or following a Pay Out Event, or if such increase would cause
the Aggregate Principal Receivables to be less than the Minimum Aggregate
Principal Receivables.
(d) The Transferor shall provide to the Servicer, the Trustee and each
Rating Agency, and the Persons, if any, specified in any Supplement with
respect to each class of Investor Certificates of any then outstanding Series
which is not assigned a rating by any Rating Agency, 30 days' prior written
notice of any designation, increase, reduction or elimination of the Discount
Percentage, and such designation, increase, reduction or elimination shall
become effective on the date specified in such notice unless such designation,
increase, reduction or elimination in the reasonable belief of the Transferor
would cause a Pay Out Event, or an event which, with notice or the lapse of
time or both, would constitute a Pay Out Event, to occur with respect to any
Series; provided, however, that if such designation would cause the Discount
Percentage to be less than 1% or more than 3%, the Rating Agency Condition
shall have been satisfied with respect to all outstanding Series that are
assigned a rating by any Rating Agency, and the Persons, if any, specified in
any Supplement with respect to each class of Investor Certificates of any
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then outstanding Series which is not assigned a rating by any Rating Agency,
shall have consented to such increase, reduction or elimination.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE RECEIVABLES
SECTION 3.1 ACCEPTANCE OF APPOINTMENT AND OTHER MATTERS RELATING TO THE
SERVICER.
(a) Xxxxxxxx'x, Inc. hereby agrees to act as the Servicer under this
Agreement. The Investor Certificateholders, by their acceptance of the
Investor Certificates, consent to Xxxxxxxx'x, Inc., acting as Servicer.
(b) The Servicer shall service and administer the Receivables and shall
collect payments due under the Receivables in accordance with its customary and
usual policies and procedures in effect for servicing consumer revolving credit
card accounts receivables comparable to the Receivables, as such policies and
procedures may be modified from time to time, and in accordance with the
applicable Credit Card Guidelines and shall have full power and authority,
acting alone or through any party properly designated by it hereunder, to do
any and all things in connection with such servicing and administration which
it may deem necessary or desirable. The Servicer has designated its Affiliate,
XxXxx'x, Inc., as the initial Subservicer. Without limiting the generality of
the foregoing and subject to Section 10.1, the Servicer is hereby authorized
and empowered (i) to make withdrawals and payments and to instruct the Trustee
to make withdrawals and payments from the Collection Account, the Excess
Funding Account or any other account or accounts maintained for the benefit of
the Certificateholders or with regard to any Enhancement as set forth in this
Agreement and any Supplement, (ii) unless such power and authority is revoked
by the Trustee on account of the occurrence of a Servicer Default pursuant to
Section 10.1, to instruct the Trustee to take any action permitted or required
under any Enhancement at such time as is 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 law and regulations, to commence enforcement
proceedings with respect to such Receivables and (iv) to make any filings,
reports, notices, applications, or registrations with, and to seek any consents
or authorizations from, the Securities and Exchange Commission and any state
securities or "blue sky" law authorities on behalf of the Trust as may be
necessary or advisable to comply with any Federal or state securities or "blue
sky" laws or reporting requirements. Prior to receipt by a Responsible Officer
of the Trustee of written notice of a Servicer Default, the Trustee shall
promptly follow the written instructions of the Servicer to withdraw funds from
the
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Collection Account and any other account or accounts maintained for the benefit
of the Certificateholders or with regard to any Enhancement. The Trustee shall
furnish the Servicer with limited powers of attorney and other documents
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder, and the Trustee shall not be held responsible
for any act or omission by the Servicer in its use of such powers of attorney.
(c) 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 9.2 or the
order of any Federal governmental agency having regulatory authority over the
Transferor or any court of competent jurisdiction that the Transferor not
transfer any additional Receivables to the Trust) then, in any such event, (A)
the Servicer agrees to allocate, after such date, all Collections (including
Collections of Finance Charge Receivables) with respect to Principal
Receivables, and all amounts which would have constituted Collections
(including Collections of Finance Charge Receivables) with respect to such
Receivables which would have been Principal Receivables but for the
Transferor's inability to transfer such Receivables to the Trust (up to an
aggregate amount equal to the Aggregate Principal Receivables in the Trust as
of such date) in accordance with Section 2.5(d) and to apply such amounts as
Collections in accordance with Article IV and (B) for only so long as all
Collections and all amounts which would have constituted Collections are
allocated and applied in accordance with clause (A) above, Collections of
Principal Receivables and all amounts which would have constituted Collections
of Principal Receivables but for the Transferor's inability to transfer
Receivables to the Trust which are charged off as uncollectible in accordance
with this Agreement shall continue to be allocated in accordance with Article
IV and all amounts which would have constituted Collections of Principal
Receivables but for the Transferor's inability to transfer Receivables to the
Trust shall be deemed to be Collections of Principal Receivables for the
purpose of calculating the applicable Investor Percentage thereunder; provided,
that if the Servicer is unable pursuant to any Requirement of Law to allocate
payments on the Accounts as described above, the Servicer agrees that it shall,
in any such event, allocate, after the date that the Transferor becomes unable
to do so, payments on each Account with respect to the balance of such Account
first to the oldest Receivable in such Account and to have such payments
applied as Collections in accordance with Article IV.
(d) The Servicer shall not be obligated to use separate servicing
procedures, offices, employees or accounts for servicing the Receivables from
the procedures, offices, employees and accounts used by the Servicer in
connection with servicing other consumer revolving credit card account
receivables.
(e) The Servicer shall maintain fidelity bond or insurance coverage
against losses through wrongdoing of its officers and employees who are
involved in the servicing of Receivables covering such actions with such
insurers and in such amounts as the Servicer believes to be reasonable from
time to time.
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(f) The Servicer shall comply with and perform its obligations under the
Account Agreements and the Credit Card Guidelines except insofar as any failure
to so comply would not materially and adversely affect the rights of the Trust
or the Certificateholders hereunder or under the Certificates.
SECTION 3.2 SERVICING COMPENSATION. As compensation for its servicing
activities hereunder and reimbursement for its expenses as set forth in the
immediately following paragraph, the Servicer shall be entitled to receive a
monthly servicing fee in respect of any Monthly Period (or portion thereof)
prior to the termination of the Trust pursuant to Section 12.1 (the "Monthly
Servicing Fee"). The Monthly Servicing Fee will be payable in arrears on each
Distribution Date in an amount equal to, with respect to each Series then
outstanding, one-twelfth (1/12th) of the product of the Servicing Fee
Percentage for such Series and the sum of the allocable portion of the
Transferor Amount and the Investor Amount of such Series, each as of the last
day of the preceding Monthly Period. The share of the Servicing Fee allocable
to each Series of Investor Certificateholders with respect to any Monthly
Period (or portion thereof) shall be equal to one twelfth (1/12th) of the
product of (A) the Servicing Fee Percentage for such Series and (B) the
Investor Amount of such Series, (after subtracting from the Investor Amount the
aggregate amount of any deposits previously made into any Principal Account) on
the last date of the applicable Monthly Period (or, in the case of the first
Distribution Date, the Initial Investor Amount, unless otherwise specified in
any Supplement) (with respect to any such Series, the "Investor Monthly
Servicing Fee"), and shall be paid to the Servicer pursuant to the applicable
Supplement. The Investor Monthly Servicing Fee will be funded from collections
of Finance Charge Receivables allocable to the Investor Amount. The remainder
of the Monthly Servicing Fee shall be paid by the Transferor, and in no event
shall the Trust, the Trustee, any Enhancement Provider or the Investor
Certificateholders be liable for the share of the Monthly Servicing Fee to be
paid by the Transferor. In the case of the first Monthly Period, the Monthly
Servicing Fee and the Investor Monthly Servicing Fee shall accrue from the
Initial Closing Date.
The Servicer's expenses include the amounts due to the Trustee pursuant to
Section 11.5 and the reasonable fees and disbursements of independent
accountants and the Subservicer, if any, and all other expenses incurred by the
Servicer in connection with its activities hereunder; provided, that the
Servicer shall not be liable for any liabilities, costs or expenses of the
Trust, the Investor Certificateholders or the Certificate Owners arising under
any tax law, including without limitation any federal, state or local income or
franchise taxes or any other tax imposed on or measured by income (or any
interest or penalties with respect thereto or arising from a failure to comply
therewith), except to the extent incurred as a result of the Servicer's
violation of the provisions of this Agreement. The Servicer shall be required
to pay such expenses for its own account and shall not be entitled to any
payment therefore other than the Monthly Servicing Fee.
SECTION 3.3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SERVICER.
Xxxxxxxx'x, Inc., as initial Servicer, hereby makes, and any successor Servicer
by its appointment hereunder shall make, the following representations,
warranties and
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covenants with respect to any Series of Certificates, as of the date of the
related Supplement and the related Closing Date, unless otherwise stated in
such Supplement, on which the Trustee has relied in accepting the Receivables
and the other property conveyed pursuant to Section 2.1 in trust and in
authenticating the Certificates:
(a) Organization and Good Standing. The Servicer is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has full power, authority and legal
right to own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement and any Supplement.
(b) Due Qualification. The Servicer is duly qualified to do business and
is in good standing (or is exempt from such requirements) in any state where
such qualification is necessary in order to service the Receivables as required
by this Agreement and any Supplement and has obtained all necessary licenses
and approvals as required under federal and state law, and if the Servicer
shall be required by any Requirement of Law to so qualify or obtain such
license or approval, then it shall do so, except where the failure to be so
qualified or to obtain such license or approval does not materially and
adversely affect the Servicer's ability to perform its obligations hereunder or
the enforceability of any Receivable.
(c) Due Authorization. The execution, delivery, and performance of this
Agreement and any Supplement and the consummation of the transactions provided
for in this Agreement and any Supplement have been duly authorized by the
Servicer by all necessary action on the part of the Servicer.
(d) Binding Obligation. Each of this Agreement and any Supplement
constitutes a legal, valid and binding obligation of the Servicer, enforceable
against the Servicer in accordance with its terms, subject to applicable
bankruptcy, insolvency, receivership, conservatorship, reorganization,
moratorium or other similar laws now or hereinafter in effect affecting the
enforcement of creditors' rights in general (or, to the extent applicable to
the Servicer, the rights of creditors of banks) and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(e) No Violation. The execution and delivery of this Agreement and any
Supplement by the Servicer, the performance by the Servicer of the transactions
contemplated by this Agreement and any Supplement and the fulfillment by the
Servicer of the terms hereof and thereof, will not conflict with, violate or
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 default under,
any Requirement of Law applicable to the Servicer or any indenture, contract,
agreement, mortgage, deed of trust or other instrument to which the Servicer is
a party or by which it is bound, where such conflict, violation, breach or
default would not have a material adverse effect.
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(f) No Proceedings. There are no proceedings or investigations pending or,
to the best knowledge of the Servicer, threatened against the Servicer before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions contemplated by
this Agreement or any Supplement, 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, or seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement or any
Supplement.
(g) Compliance with Requirements of Law. The Servicer shall duly satisfy
its obligations in all material respects on its part to be fulfilled under or
in connection with each Receivable and the corresponding Account, will maintain
in effect all material qualifications required under Requirements of Law in
order to service properly each Receivable and the corresponding Account 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 a material adverse effect on the
Certificateholders (without regard to the amount of any Enhancement).
(h) No Rescission or Cancellation. Except in connection with an
Adjustment Payment Obligation pursuant to Section 3.8, the Servicer shall not
permit any rescission or cancellation of any Receivable except as ordered by a
court of competent jurisdiction or other Governmental Authority or in the
ordinary course of its business and in accordance with the applicable Credit
Card Guidelines.
(i) 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 rights of any
Enhancement Provider, nor shall it reschedule, revise, waive or defer payments
due on any Receivable except in accordance with the applicable Credit Card
Guidelines.
(j) All Consents Required. All approvals, authorizations, consents, orders
or other actions of any Person or of any Governmental Authority required to be
obtained on or prior to each date as of which this representation is being made
in connection with the execution and delivery by the Servicer of this Agreement
and any Supplement, the performance by the Servicer of the transactions
contemplated by this Agreement and any Supplement and the fulfillment by the
Servicer of the terms hereof and thereof, have been obtained; provided,
however, that no representation or warranty is made regarding state securities
or "blue sky" laws in connection with any distribution of the Certificates.
(k) Receivables Not to be Evidenced by Instruments. Except in connection
with its enforcement or collection of an Account, the Servicer will take no
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action to cause any Receivable to be evidenced by any instrument (as defined in
the UCC as in effect in the Relevant UCC State).
In the event of a breach of any of the representations and warranties set
forth in Section 3.3(g), (h), (i) or (k) with respect to a Receivable, and such
breach has a material adverse effect on the Certificateholders' interest in
such Receivable (without regard to the amount of any Enhancement) then, upon
the expiration of 90 days or any longer period agreed upon by the Trustee (not
to exceed an additional 90 days) from the earlier to occur of the discovery of
any such event by the Servicer or receipt by the Servicer of written notice of
any such event given by the Trustee, unless such breach has been cured, each
such Receivable or, at the option of the Transferor, all such Receivables with
respect to the related Account, shall be assigned and transferred to the
Servicer upon the deposit by the Servicer into the Collection Account in
immediately available funds prior to the next succeeding Distribution Date of
an amount equal to the amount of each such Receivable at the end of the Monthly
Period preceding such Distribution Date, plus the amount of finance charges at
the monthly periodic rate applicable to such Receivable from the last date
billed through the end of such Monthly Period to the extent not included in the
amount of such Receivable. Any such deposit into the Collection Account in
connection with any such assignment of a Receivable shall be considered a
payment in full of such Receivable and such deposit shall be applied in
accordance with the provisions of Article IV. Upon the assignment to the
Servicer of such a Receivable, the Trust shall, without further action, be
deemed to transfer, assign, set-over and otherwise convey to the Servicer,
without recourse, representation or warranty, all the right, title and interest
of the Trust in and to such Receivable, all monies due or to become due 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 reasonably be requested by the Servicer to effect the conveyance of
such Receivable pursuant to this subsection. The obligation of the Servicer set
forth in this Section 3.3 shall constitute the sole remedy respecting any
breach by the Servicer of the representations and warranties set forth in the
above-referenced subsections with respect to such Receivable available to
Certificateholders or the Trustee on behalf of Certificateholders.
Notwithstanding any other provision of this Section 3.3, no assignment of a
Receivable to the Servicer pursuant to this Section 3.3 shall occur if the
Servicer fails to make the deposit required by this Section 3.3 with respect to
such Receivable.
SECTION 3.4 REPORTS AND RECORDS FOR THE TRUSTEE
(a) Initial Report. On the Closing Date with respect to each Series of the
Investor Certificates, the Servicer shall prepare and deliver, as provided in
Section 13.5, to the Trustee and the Rating Agencies, and the Persons, if any,
specified in any Supplement with respect to each class of Investor Certificates
of any then outstanding Series which is not assigned a rating by any Rating
Agency, an Officer's Certificate substantially in the form of Exhibit D setting
forth the Aggregate Principal Receivables, the Transferor Amount, the Discount
Option Receivables and the Transferor Interest Percentage as of the
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end of the day two Business Days preceding the Closing Date and the expected
Transferor Amount after giving effect to the issuance of such Series.
(b) Daily Reports. For so long as deposits of Collections are required to
be made daily by the Servicer pursuant to Section 4.1(f), on each Business Day
commencing on the Initial Closing Date, the Servicer shall prepare, maintain at
the office of the Servicer and make available for inspection by the Trustee, a
record setting forth the aggregate amount of Collections processed by the
Servicer on the second preceding Business Day. The Servicer shall prepare such
other reports on a daily (or less frequent) basis as may be required by any
Supplement.
(c) Monthly Servicer's Certificate. By 1:00 p.m., Minneapolis, Minnesota
time on each Determination Date, the Servicer shall deliver, as provided in
Section 13.5, to the Trustee, the Paying Agent and the Rating Agencies, an
Officer's Certificate signed by a Servicing Officer substantially in the form
of Exhibit E (with the Monthly Certificateholder's Statement required pursuant
to the applicable Supplement attached) setting forth the following information
(which, in the case of clauses (iii), (iv) and (v) below, will be stated on the
basis of an original principal amount of $1,000 per Certificate): (i) the
aggregate amount of Collections processed for the immediately preceding Monthly
Period and the aggregate amount of Collections of Finance Charge Receivables
and the aggregate amount of Collections of Principal Receivables processed
during such Monthly Period; (ii) the Investor Percentage with respect to each
Series of Certificates with respect to Collections of Principal Receivables,
Finance Charge Receivables and Defaulted Receivables processed during the
immediately preceding Monthly Period; (iii) for each Series and for each class
within any such Series, the amount of such distribution allocable to principal,
if applicable; (iv) for each Series and for each class within any such Series,
the amount of such distribution allocable to interest, if applicable; (v) the
aggregate outstanding balance of the Accounts which were delinquent by 31 to 60
days, 61 to 90 days and 91 days or more as of the close of business on the last
day of the immediately preceding Monthly Period immediately preceding such
Distribution Date; (vi) for each Series and for each class within any such
Series, the Investor Default Amount for the immediately preceding Monthly
Period; (vii) for each Series and for each class within any such Series, the
amount of the Investor Charge Offs and the amount of the reimbursements thereof
for the next succeeding Distribution Date; (viii) for each Series, the Monthly
Servicing Fee for the next succeeding Distribution Date; (ix) for each Series,
the existing deficit controlled amortization amount or deficit controlled
accumulation amount, if applicable; (x) the aggregate amount of Receivables in
the Trust at the close of business on the last day of the Monthly Period
immediately preceding such Distribution Date; (xi) for each Series, the
Investor Amount at the close of business on the last day of the Monthly Period
immediately preceding such Distribution Date; (xii) the available amount of
Enhancement, if any, for each Series; and (xiii) whether a Pay Out Event with
respect to any Series shall have occurred during or with respect to the
immediately preceding Monthly Period. The Trustee shall make such statement
available to the Certificateholders, but shall be under no duty to recalculate,
verify or recompute the information supplied to it under this Section 3.4.
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SECTION 3.5 ANNUAL SERVICER'S CERTIFICATE. The Servicer will deliver, as
provided in Section 13.5, to the Trustee, the Rating Agencies and the Persons,
if any, specified in the Supplement with respect to each class of Investor
Certificates of any then outstanding Series which is not assigned a rating by
any Rating Agency, on or before June 30 of each calendar year, beginning with
1998, an Officer's Certificate substantially in the form of Exhibit F (a)
stating that a review of the activities of the Servicer during the preceding
Fiscal Year (or, in the case of the first such certificate, during the period
from the Initial Closing Date until February 3, 1998) and of its performance
under this Agreement was made under the supervision of the officer signing such
certificate and (b) stating that to the best of such officer's Knowledge, based
on such review, either there has occurred no event which, with the giving of
notice or passage of time or both, would constitute a Servicer Default and the
Servicer has fully performed all its obligations under this Agreement
throughout such year, or, if there has occurred such an event, specifying each
such event known to such officer and the nature and status thereof. A copy of
such Officer's Certificate may be obtained by any Investor Certificateholder by
a request in writing to the Trustee directed to the Trustee's address specified
in Section 13.5 hereof.
SECTION 3.6 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
(a) On or before June 30 of each calendar year, beginning with 1998, 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, as specified in Section 13.5, a report prepared in
accordance with standards established by the American Institute of Certified
Public Accountants and, accordingly, including such procedures or examination
as they considered necessary in the circumstances, to the Trustee, the Rating
Agencies and the Persons, if any, specified in any Supplement with respect to
each class of Investor Certificates of any then outstanding Series which is not
assigned a rating by any Rating Agency, and, as may be required by any Series
Supplement, any Enhancement Provider to the effect that, such firm has applied
certain procedures to certain documents and records relating to the servicing
of the Accounts, compared the information contained in the Servicer's
certificates issued during the period covered by the report with such documents
and records and that, based upon such procedures or examination, no matters
came to the attention of such accountants that caused them to believe that such
servicing was not conducted in all material respects, in conformity with
Section 3.4(c), except for such exceptions as such accountants believe to be
immaterial and such other exceptions as shall be set forth in such report. Such
procedures or examination will include comparisons of the mathematical
calculations contained in the Monthly Servicer's Certificates forwarded by the
Servicer pursuant to Section 3.4(c) during the period covered by such report
with the Servicer's computer reports that were the source of such amounts, and
such report shall state that, on the basis of such comparison, such accountants
are of the opinion that such amounts are consistent, except for such exceptions
as they believe to be immaterial and such other exceptions as shall be set
forth in such report. In the event such firm requires the Trustee to agree to
the procedures performed by such firm, the Servicer
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shall direct the Trustee in writing to so agree; it being understood and agreed
that the Trustee will deliver such letter of agreement in conclusive reliance
upon the direction of the Servicer, and the Trustee makes no independent
inquiry or investigation as to, and shall have no obligation or liability in
respect of, the sufficiency, validity or correctness of such procedures. A copy
of such report may be obtained by any Investor Certificateholder by a request
in writing to the Trustee directed to the Trustee's address specified in
Section 13.5 hereof.
(b) On or before June 30 of each calendar year, beginning with 1998, 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, as specified in Section 13.5, a report to the Trustee,
the Rating Agencies and the Persons, if any, specified in any Supplement with
respect to each class of Investor Certificates of any then outstanding Series
which is not assigned a rating by any Rating Agency, and, as may be required by
any Series Supplement, any Enhancement Provider, to the effect that in
connection with their examination of the Monthly Servicer's Certificates,
nothing came to their attention that caused them to believe that the Servicer
failed to comply with provisions of Sections 3.2, 3.4(c), 4.1 and 8.8 of this
Agreement. In the event such firm requires the Trustee to agree to the
procedures performed by such firm, the Servicer shall direct the Trustee in
writing to so agree; it being understood and agreed that the Trustee will
deliver such letter of agreement in conclusive reliance upon the direction of
the Servicer, and the Trustee makes no independent inquiry or investigation as
to, and shall have no obligation or liability in respect of, the sufficiency,
validity or correctness of such procedures.
SECTION 3.7 TAX TREATMENT. The Transferor has structured this Agreement
and the Investor Certificates (other than any Investor Certificates held by the
Transferor) with the intention that such Investor Certificates will qualify
under applicable federal income tax law as indebtedness of the Transferor or,
if specified in the applicable Supplement, an interest in a partnership, and
the Transferor, any entity acquiring any direct or indirect interest in the
Exchangeable Transferor Certificate, each Investor Certificateholder (or
Certificate Owner) by acceptance of its Certificate (or, in the case of a
Certificate Owner, by virtue of such Certificate Owner's acquisition of a
beneficial interest therein) and each holder of an interest in any Enhancement
Investor Amount by its acceptance thereof agrees, and shall be deemed to agree,
to treat such Investor Certificates (or beneficial interest therein) or
Enhancement Investor Amount for purposes of Federal, state and local income or
franchise taxes and any other tax imposed on or measured by income, as
indebtedness, or, if specified in the applicable Supplement, an interest in a
partnership. Each Certificateholder agrees that it will cause any Certificate
Owner acquiring an interest in a Certificate through it to comply with this
Agreement as to treatment as indebtedness or, if specified in the applicable
Supplement, an interest in a partnership, for certain tax purposes. Consistent
with the foregoing, the Trustee shall not file a Federal income tax return on
behalf of the Trust or apply for a taxpayer identification number on behalf of
the Trust unless required to do so as a result of a determination by the
Internal Revenue Service or pursuant to the terms of a Supplement.
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SECTION 3.8 ADJUSTMENTS.
(a) If the Servicer adjusts downward the amount of any Principal
Receivable because of a rebate, refund, unauthorized charge or billing error to
an Obligor, or because such Receivable was created in respect of merchandise or
services which were refused, returned or not received by an Obligor, or if the
Servicer otherwise adjusts downward the amount of any Principal Receivable
without receiving Collections therefor or without charging off such amount as
uncollectible, then, in any such case, the Servicer shall deduct from the
Aggregate Principal Receivables and decrease the Transferor Amount by the
amount of such adjustment. Similarly, the amount of the Aggregate Principal
Receivables and the Transferor Amount will be reduced by the amount of any
Principal Receivable which was discovered as having been created through a
fraudulent or counterfeit charge or with respect to which the covenant
contained in Section 2.5(b) was breached. Any adjustment ("Adjustment Payment
Obligation"), 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 any such reduction, the
Transferor Amount would be less than the Minimum Transferor Amount, the
Transferor shall immediately pay to the Servicer for deposit into the Excess
Funding Account, in immediately available funds, an amount equal to the amount
by which the Transferor Amount would be reduced below the Minimum Transfer
Amount. In the event that the Servicer adjusts upwards the principal amount of
any Receivable, the Aggregate Principal Receivables and the Transferor Amount
shall be increased by the amount of such upward adjustment, and any unpaid
Adjustment Payment Obligation shall be reduced by the applicable amount.
(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, no adjustments shall be made pursuant to this paragraph that
will change any amount of Collections previously reported pursuant to Section
3.4(c).
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ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
SECTION 4.1 ESTABLISHMENT OF COLLECTION ACCOUNT AND ALLOCATIONS WITH
RESPECT TO THE EXCHANGEABLE TRANSFEROR CERTIFICATE.
(a) The Collection Account. The Servicer shall establish and maintain or
cause to be established and maintained in the name of the Trustee, on behalf of
the Trust, with the Trustee or another Qualified Institution a segregated
corporate trust account (the "Collection Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Investor Certificateholders. The Trustee shall possess all right, title and
interest in all amounts held from time to time in the Collection Account and in
all proceeds thereof. The Collection Account shall be under the sole dominion
and control of the Trustee for the benefit of the Investor Certificates. If, at
any time, the institution holding the Collection Account ceases to be a
Qualified Institution, the Trustee (or the Servicer on its behalf of the
Trustee) shall within five (5) Business Days of a Responsible Officer of the
Trustee receiving written notice or having actual knowledge of such event
establish a new Collection Account meeting the conditions specified above with
a Qualified Institution and shall transfer any cash and/or any investments to
such new Collection Account, and from the date such new Collection Account is
established, it shall be the "Collection Account." The foregoing
notwithstanding, pursuant to the authority granted to the Servicer in Section
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.
(b) Interest in the Trust. Each Series shall represent interests in the
Trust, including the benefits of Enhancement, if any, to be provided with
respect to such Series as indicated in the Supplement relating to such Series
and the right to receive Collections and other amounts at the times and in the
amounts specified in this Article IV to be deposited in the Collection Account
and any other accounts maintained for the benefit of the Certificates or to be
paid to the Investor Certificateholders of such Series. The Exchangeable
Transferor Certificate shall represent the interest in the Trust not
represented by any Series then outstanding, including the right to receive
Collections and other amounts at the times and in the amounts specified in this
Article IV to be paid to the Transferor (the "Transferor Interest"); provided,
however, that the Exchangeable Transferor Certificate shall not represent any
interest in the Collection Account or any other accounts maintained for the
benefit of the Certificateholders or the benefits of Enhancement, if any, to be
provided by an Enhancement Provider issued with respect to any Series, except
as specifically provided in this Article IV.
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(c) Administration of the Collection Account. At the written direction of
the Servicer, funds held in the Collection Account to be invested shall be
invested by the Trustee in Permitted Investments selected by the Servicer. All
such Permitted Investments shall be held by the Trustee for the benefit of the
Investor Certificateholders. Investments of funds representing Collections
collected during any Monthly Period shall be invested in Permitted Investments
that will mature so that such funds will be available by the close of business
on the Business Day preceding the Distribution Date next succeeding such
Monthly Period. Any funds held in the Collection Account to be so invested
shall be invested solely in Permitted Investments. All Permitted Investments
shall be held to maturity. The Trustee shall maintain possession of the
negotiable instruments or securities, if any, evidencing such Permitted
Investments. For purposes of determining the availability of funds or balances
in the Collection Account, all investment earnings on such funds shall be
deemed not to be available or on deposit until actually credited to such
account. On each Distribution Date, all interest and other investment earnings
(net of losses and investment expenses) on funds held in the Collection Account
shall be paid to the Holder of the Exchangeable Transferor Certificate. The
Transferor at its option may direct the Servicer's investment of funds pursuant
to this Section 4.1(c).
(d) Allocations For the Exchangeable Transferor Certificate. Throughout
the existence of the Trust, the Servicer shall allocate to the Holder of the
Exchangeable Transferor Certificate an amount equal to the product of (A) the
Transferor Percentage and (B) the aggregate amount of Collections allocated to
Principal Receivables and Finance Charge Receivables, respectively, in respect
of each Monthly Period. Notwithstanding anything to the contrary in Section
4.1, unless specified in any Supplement, the Servicer need not deposit this
amount, or any other amounts so allocated to the Exchangeable Transferor
Certificate pursuant to any Supplement, into the Collection Account and shall
pay such amounts as collected to the Holder of the Exchangeable Transferor
Certificate.
(e) Allocation of Collections Between Collections of Principal Receivables
and Collections of Finance Charge Receivables. Collections of Receivables
(other than Recoveries) for any day during a Monthly Period shall be allocated
first to Finance Charge Receivables in an amount equal to the sum of (i) the
amount of Finance Charge Receivables billed during the prior Monthly Period and
(ii) the amount of Finance Charge Receivables for prior Monthly Periods which
were not covered by Collections on Receivables (other than Recoveries)
allocated to Receivables for such Monthly Periods. The balance of Collections
of Receivables for such day shall be allocated to Principal Receivables. If the
Servicer shall at any time be able to determine the actual amount of
Collections processed on any day which are Collections of Finance Charge
Receivables, Collections of Principal Receivables and Recoveries, the Servicer,
upon ten (10) days notice to the Trustee, the Transferor (if the Servicer is
not then the Transferor) and each Rating Agency, may at its option henceforth
allocate Collections received on each day in accordance with the actual amount
of Collections of Finance Charge Receivables (other than Recoveries),
Collections of Principal Receivables and Recoveries collected on such day.
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(f) Collections. The Servicer will apply all Collections with respect to
the Receivables for each Monthly Period as described in this Article IV and
each Supplement. Except as otherwise provided herein or in the applicable
Supplement, the Servicer shall deposit Collections into the Collection Account
no later than the second Business Day following the Date of Processing of such
Collections. Subject to the express terms of any Supplement, but
notwithstanding anything else in this Agreement to the contrary, for so long
as, and only so long as, the Company or an Affiliate of the Company shall be
the Servicer hereunder and no Pay Out Event relating to a Servicer Default
shall have occurred and be continuing, and either (i) the Company or such
Affiliate shall maintain a short-term debt or certificate of deposit rating
(which may be an implied rating) of P-1 by Moody's and of A-1+ by Standard &
Poor's, or (ii) Xxxxxxxx'x, Inc. shall have obtained a written notification
from each Rating Agency to the effect that such Rating Agency does not intend
to downgrade or withdraw its then current rating of any outstanding Series of
Investor Certificates despite the Servicer's inability to satisfy the rating
requirement specified in clause (i), and for two Business Days following any
reduction of either such rating or failure to satisfy the conditions of clause
(ii), the Servicer need not deposit Collections into the Collection Account or
make payments to the holder of the Exchangeable Transferor Certificate prior to
the close of business on the second Business Day following the Date of
Processing, but rather may make a single deposit in the Collection Account in
immediately available funds on the Business Day prior to each Distribution Date
in an amount equal to the Collections with respect to the Monthly Period
preceding such Distribution Date to the extent such amounts and Collections are
allocated to one or more Series in accordance with Article IV. Collections
shall not be required to be invested in Permitted Investments until such time
as they are deposited into the Collection Account. The Servicer shall promptly
notify the Trustee of any downgrade or withdrawal of its short-term credit or
certificate of deposit rating or, if an Affiliate of Xxxxxxxx'x, Inc. is acting
as Servicer hereunder, of any such downgrade or withdrawal of any such rating
of such Affiliate.
Should the Servicer be required to make daily deposits of Collections into
the Collection Account pursuant to this subsection, during any Amortization
Period, the Servicer may, subject to the provisions of the applicable
Supplement, cease depositing Collections of Principal Receivables received in
any Monthly Period and allocable to a Series at such time as the amount of
Collections of Principal Receivables allocable to such Series and deposited
into the Collection Account equals the amount of principal scheduled or
permitted to be paid on the next succeeding Distribution Date with respect to
such Series. Collections of Principal Receivables allocable to such Series in
excess of such amount shall be distributed, on a daily basis as they are
collected, to the Transferor.
(g) Excess Funding Account. The Servicer, for the benefit of the
Certificateholders, shall establish and maintain or cause to be established and
maintained in the name of the Trustee, on behalf of the Trust, with a Qualified
Institution a segregated trust account, which may be a subaccount of the
Collection Account, bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of
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the Investor Certificateholders (the "Excess Funding Account"). The Trustee
shall possess all right, title and interest in all funds on deposit from time
to time in the Excess Funding Account and in all proceeds thereof. The Excess
Funding Account shall be under the sole dominion and control of the Trustee for
the benefit of the Investor Certificateholder. If, at any time, the institution
holding the Excess Funding Account is not the Trustee, or if another Person,
such institution ceases to be a Qualified Institution, the Trustee (or the
Servicer on its behalf) shall within five (5) Business Days of a Responsible
Officer of the Trustee receiving written notice or having actual knowledge of
such event establish a new Excess Funding Account meeting the conditions
specified above with a Qualified Institution and shall transfer any cash and/or
any investments to such new Excess Funding Account, and from the date such new
Excess Funding Account is established, it shall be the "Excess Funding
Account." The foregoing notwithstanding, pursuant to the authority granted to
the Servicer in Section 3.1(b), the Servicer shall have the power, revocable by
the Trustee, to make withdrawals and payments from the Excess Funding Account
and to instruct the Trustee to make withdrawals and payments from the Excess
Funding Account for the purposes of carrying out the Servicer's or the
Trustee's duties hereunder.
At the written direction of the Servicer, funds held in the Excess Funding
Account to be invested shall be invested by the Trustee in Permitted
Investments selected by the Servicer. All such Permitted Investments shall be
held by the Trustee for the benefit of the Investor Certificateholders. The
Trustee shall maintain for the benefit of the Investor Certificateholders
possession of the negotiable instruments or securities, if any, evidencing such
Permitted Investments. Funds held in the Excess Funding Account on any date
(after giving effect to any withdrawals from the Excess Funding Account on such
date) will be invested in Permitted Investments that will mature so that funds
will be available at the close of business on the next Business Day following
such date. On each Determination Date, the Servicer shall instruct the Trustee
to withdraw on the next succeeding Distribution Date from the Excess Funding
Account and deposit in the Collection Account all interest and other investment
earnings (net of losses and investment expenses) on funds held in the Excess
Funding Account, for application as Collections of Finance Charge Receivables
with respect to the prior Monthly Period. Interest (including reinvested
interest) and other investment income and earnings on funds held in the Excess
Funding Account shall not be considered part of the Excess Funding Amount for
purposes of this Agreement. On each Business Day (other than following a Pay
Out Event), the Servicer shall determine the amount by which the Transferor
Amount exceeds the Minimum Transferor Amount on such date and shall instruct
the Trustee to withdraw such amount from the Excess Funding Account on such
date and pay such amount to the holder of the Exchangeable Transferor
Certificate. On each Determination Date on which one or more Series is in an
Amortization Period, the Servicer shall determine the aggregate amount of
Principal Shortfalls, if any, with respect to each such Series that is a
Principal Sharing Series (after giving effect to the allocation and payment
provisions in the Supplement with respect to each such Series on the next
succeeding Distribution Date), and the Servicer shall instruct the Trustee to
withdraw such amount (up to the Excess Funding Amount) from the Excess Funding
Account on the next succeeding Distribution
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Date and allocate such amount among each such Series as Shared Principal
Collections as specified in each related Supplement to the extent needed to
cover the principal payments due to or for the benefit of such Series.
(h) Principal and Shared Principal Collections. Collections of Principal
Receivables and certain other amounts for any Monthly Period allocated to any
Series in a Group will be used first to cover certain amounts described in the
related Series Supplements (including any required deposits into a Principal
Account or required distributions to Certificateholders of such Series). For
each Distribution Date, the Servicer will determine the amount of collections
of Principal Receivables for any Monthly Period (plus certain other amounts
required by the related Series Supplement) allocated to such Series remaining
after covering such required deposits and distributions and any similar amount
remaining for any other Series in such Group (collectively, "Shared Principal
Collections"), and will allocate the Shared Principal Collections to cover any
principal distributions to Certificateholders and deposits to Principal
Accounts for any Series in such Group which are either scheduled or permitted
and which have not been covered out of collections of Principal Receivables and
certain other amounts for such Series, provided that the Series Supplement for
such Series so provides ("Principal Shortfalls"). If Principal Shortfalls
exceed Shared Principal Collections for any Monthly Period, Shared Principal
Collections will be allocated pro rata among the Series in a Group entitled to
the benefits thereof based on the respective Principal Shortfalls of such
Series. To the extent that Shared Principal Collections exceed Principal
Shortfalls, the balance will be distributed to the holder of the Exchangeable
Transferor Certificate; provided, however, that (i) such Shared Principal
Collections will be distributed to the holder of the Exchangeable Transferor
Certificate only to the extent the Transferor Amount is greater than the
Minimum Transferor Amount and (ii) in certain circumstances provided in the
applicable Supplement, such Shared Principal Collections will be deposited in
the Excess Funding Account. Any such reallocation of collections of Principal
Receivables and other amounts will not result in a reduction in the Investor
Amount of the Series to which such collections were initially allocated.
(i) Shared Excess Finance Charge Collection. Collections of Finance Charge
Receivables and certain other amounts allocable to any Series which is included
in such Group in excess of the amounts necessary to make required payments with
respect to such Series that are payable out of collections of Finance Charge
Receivables ("Shared Excess Finance Charge Collections") will be applied to
cover any shortfalls with respect to amounts payable from collections of
Finance Charge Receivables allocable to any other Series included in such
Group, pro rata based upon the amount of the shortfall, if any, with respect to
each other Series in such Group, provided, however, that the sharing of Shared
Excess Finance Charge Collections among Series in a Group will continue only
until such time, if any, at which the Transferor shall deliver to the Trustee a
certificate of an authorized officer to the effect that, in the reasonable
belief of the Transferor or its counsel, the continued sharing of Shared Excess
Finance Charge Collections among Series in any Group would have adverse
regulatory implications with respect to the Transferor. Following the delivery
by the Transferor of any such certificate to the Trustee there will
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not be any further sharing of Shared Excess Finance Charge Collections among
the Series in a Group. In all cases, any Shared Excess Finance Charge
Collections remaining after covering shortfalls with respect to all outstanding
Series in a Group will be paid to the holder of the Exchangeable Transferor
Certificate.
On each Distribution Date, (i) the Servicer shall allocate Shared Excess
Finance Charge Collections with respect to the Series in a Group to each Series
in such Group, pro rata, in proportion to the Finance Charge Shortfalls, if
any, with respect to each such Series and (ii) the Servicer shall withdraw (or
shall instruct the Trustee to withdraw) from the Collection Account and pay to
the holder of the Exchangeable Transferor Certificate an amount equal to the
excess, if any, of (x) the aggregate amount of Shared Excess Finance Charge
Collections for all such Series for such Distribution Date over (y) the
aggregate amount of Finance Charge Shortfalls for all such Series for such
Distribution Date.
(j) Net Deposits. For so long as Xxxxxxxx'x, Inc. or an Affiliate of
Xxxxxxxx'x, Inc. shall be the Servicer hereunder and a Servicer Default shall
not have occurred and be continuing, the Servicer may make deposits into the
Collection Account or the Excess Funding Account on any date net of amounts
payable as of such date to the Transferor or the Servicer from amounts held in
the Collection Account or the Excess Funding Account, it being understood that
the Investor Monthly Servicing Fee with respect to any Series shall be payable
to the Servicer only in accordance with the provisions specified in the related
Supplement and that the foregoing shall in no event increase the amount payable
to the Transferor or the Servicer hereunder or pursuant to any Supplement.
[THE REMAINDER OF ARTICLE IV IS RESERVED
AND MAY BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES]
ARTICLE V
[ARTICLE V IS RESERVED AND MAY BE SPECIFIED
IN ANY SUPPLEMENT WITH RESPECT TO ANY SERIES]
ARTICLE VI
THE CERTIFICATES
SECTION 6.1 THE CERTIFICATES. Subject to Sections 6.10 and 6.11, the
Investor Certificates of each Series and any class thereof may be issued in
bearer form (the "Bearer Certificates") with attached interest coupons and a
special coupon (collectively, the "Coupons") or in fully registered form (the
"Registered Certificates"), and shall be
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substantially in the form of the exhibits with respect thereto attached to the
applicable Supplement. The Exchangeable Transferor Certificate shall be
substantially in the form of Exhibit A. The Investor Certificates and the
Exchangeable Transferor Certificate shall, upon issue pursuant hereto or to
Section 6.9 or Section 6.11, be executed and delivered by the Transferor (or
the Trustee on behalf of the Trust, if specified in the applicable Supplement)
to the Trustee for authentication and redelivery as provided in Section 6.2.
Any Investor Certificates shall be issued in minimum denominations of $1,000
and in integral multiples of $1,000 in excess thereof, unless otherwise
specified in any Supplement. If specified in the related Supplement for any
Series, the Investor Certificates shall be issued upon initial issuance as a
single certificate in an original principal amount equal to the Initial
Investor Amount as described in Section 6.10. The Exchangeable Transferor
Certificate may also be issued in two or more certificates. Each Certificate
executed by the Transferor shall be executed by manual or facsimile signature
on behalf of the Transferor by its President, any Executive Vice President,
Senior Vice President or the Treasurer. Certificates bearing the manual or
facsimile signature of the individual who was, at the time when such signature
was affixed, authorized to sign on behalf of the Transferor or the Trustee
shall not be rendered invalid, notwithstanding that such individual has ceased
to be so authorized prior to the authentication and delivery of such
Certificates or does not hold such office at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Agreement or any
applicable Supplement, 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 Responsible Officer, and such certificate of authentication upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication, except Bearer
Certificates which shall be dated the Issuance Date.
SECTION 6.2 AUTHENTICATION OF CERTIFICATES. Contemporaneously with the
assignment and transfer of the Receivables and the other property to the Trust,
the Trustee shall authenticate and deliver the initial Series of Investor
Certificates upon the order of the Transferor, to the Persons designated in the
related Supplement. The Trustee shall authenticate and deliver the Exchangeable
Transferor Certificate to the Transferor simultaneously with its delivery of
the initial Series of Investor Certificates. Upon an Exchange as provided in
Section 6.9 of the Agreement and the satisfaction of the conditions specified
therein, the Trustee shall authenticate and deliver the Investor Certificates
of additional Series (with the designation provided in the applicable
Supplement), upon the order of the Transferor, to the Persons designated in
such Supplement. Upon the order of the Transferor, the Certificates of any
Series shall be duly authenticated by or on behalf of the Trustee, in
authorized denominations equal to (in the aggregate) the Initial Investor
Amount of such Series of Investor Certificates. If specified in the related
Supplement for any Series, the Trustee shall authenticate and deliver outside
the United States the Global Certificate that is issued upon original issuance
thereof, upon the written order of the Transferor, to the Common Depositary as
provided in Section 6.10 against payment of the purchase price therefor. If
specified in the related Supplement
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for any Series, the Trustee shall authenticate Book-Entry Certificates that are
issued upon original issuance thereof, upon the written order of the
Transferor, to a Clearing Agency or its nominee as provided in Section 6.11
against payment of the purchase price therefor.
SECTION 6.3 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Trustee shall cause to be kept at the office or agency to be
maintained by a transfer agent and registrar (which initially shall be the
Trustee) (the "Transfer Agent and Registrar") in accordance with the provisions
of Section 6.3(c) a register (the "Certificate Register") in which, subject to
such reasonable regulations as it may prescribe, the Transfer Agent and
Registrar shall provide for the registration of the Registered Certificates and
of transfers and exchanges of the Registered Certificates as herein provided.
The Trustee is hereby initially appointed Transfer Agent and Registrar for the
purpose of registering the Registered Certificates and transfers and exchanges
of the Registered Certificates as herein provided. The Trustee shall be
permitted to resign as Transfer Agent and Registrar upon 30 days' prior
written notice to the Transferor and the Servicer, provided, however, that such
resignation shall not be effective and the Trustee shall continue to perform
the duties of Transfer Agent and Registrar until the Transferor has appointed a
successor Transfer Agent and Registrar acceptable to the Transferor and the
Trustee. If specified in the related Supplement for any Series of
Certificates, the Transferor shall appoint any co-transfer agent and
co-registrar chosen by the Transferor, and acceptable to the Trustee,
including, if and so long as the Registered Certificates are listed on the
Luxembourg Stock Exchange or other stock exchange and such exchange shall so
require, a co-transfer agent and co-registrar in Luxembourg or the location
required by such other stock exchange. If specified in such related
Supplement, so long as the Registered Certificates relating to such Supplement
are outstanding, the Transferor shall maintain a co-transfer agent and
co-registrar in New York City or any other city designated in such Supplement
and any reference in this Agreement to the Transfer Agent and Registrar shall
include any co-transfer agent and co-registrar unless the context requires
otherwise.
Upon surrender for registration of transfer of any Registered Certificate
at any office or agency of the Transfer Agent and Registrar maintained for such
purpose, the Transferor (or the Trustee on behalf of the Trust, if specified in
the applicable Supplement) shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee, one or more new
Registered Certificates in authorized denominations of the same Series
representing like aggregate Undivided Interests in the Trust; provided,
however, that the provisions of this paragraph shall not apply to Bearer
Certificates.
At the option of any Holder thereof, Registered Certificates may be
exchanged for other Registered Certificates of the same class and Series in
authorized denominations of like aggregate Undivided Interests in the Trust,
upon surrender of the Registered Certificates to be exchanged at any office or
agency of the Transfer Agent and Registrar maintained for such purpose. At the
option of any Holder thereof, subject to
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applicable laws and regulations, Bearer Certificates may be exchanged for other
Bearer Certificates or Registered Certificates of the same class and Series in
authorized denominations of like aggregate Undivided Interests in the Trust,
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 6.3 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 Distribution Date after the related Series Termination Date need not
have attached the Coupon relating to such Distribution Date. No Registered
Certificates may be exchanged for a Bearer Certificate.
The preceding provisions of this Section 6.3(a) notwithstanding, the
Trustee or the Transfer Agent and Registrar, as the case may be, shall not be
required to register the transfer or exchange of any Certificate of any Series
for a period of 15 days preceding the due date for any payment with respect to
the Certificates of such Series.
Whenever any Investor Certificates of any Series are surrendered for
exchange, the Transferor (or the Trustee on behalf of the Trust, if specified
in the applicable Supplement) shall execute, and 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 of such
Series which the Certificateholder making the exchange is entitled to receive.
Every Investor Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in a form satisfactory to the Trustee and the Transfer Agent and Registrar duly
executed by the Certificateholder thereof or his attorney duly authorized in
writing.
Except as provided in any Supplement, no service charge shall be made for
any registration of transfer or exchange of Investor Certificates, but the
Transfer Agent and Registrar and the Trustee or any co-transfer agent and
co-registrar or co-trustee may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
or exchange of Investor Certificates.
All Investor Certificates (together with any Coupons attached to Bearer
Certificates) surrendered for registration of transfer or exchange shall be
canceled by the Transfer Agent and Registrar and disposed of in a manner
satisfactory to the Trustee and the Transferor. The Trustee shall cancel and
mutilate the Global Certificate upon its exchange in full for Definitive
Certificates and shall deliver such canceled and mutilated Global Certificate
to the Transferor. The Trustee shall also forward to the Transferor a copy of
each certificate of each Foreign Clearing Agency to the effect referred to in
Section 6.10 which was received by the Trustee with respect to each portion of
the Global Certificate exchanged for Definitive Certificates.
The Transferor shall execute and deliver to the Trustee or the Transfer
Agent and Registrar, as applicable, Bearer Certificates and Registered
Certificates in such
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amounts and at such times as are necessary to enable the Trustee to fulfill its
responsibilities under this Agreement and the Certificates.
(b) Except as provided in Sections 6.9 and 7.2 or in any Supplement, the
Transferor's interest in the Exchangeable Transferor Certificate and other
amounts payable to the Transferor pursuant to this Agreement shall not be sold,
transferred, assigned, exchanged, pledged, participated or otherwise conveyed,
unless (i) the Servicer has delivered to the Trustee an Officer's Certificate
stating that such sale, transfer, assignment, exchange, pledge, participation
or conveyance will not, while any Series of Certificates remains outstanding,
reduce the Transferor's retained interest in the Exchangeable Transferor
Certificate below the Minimum Transferor Interest Percentage and (ii) prior to
such sale, transfer, assignment, exchange, pledge, participation or conveyance,
the Rating Agency Condition is satisfied and (iii) the Trustee receives prior
thereto an Opinion of Counsel to the effect that (x) the conveyed interest in
the Exchangeable Transferor Certificate will be treated as either debt or an
interest in a partnership for Federal income tax purposes and that the
conveyance of such interest will not cause the Trust to be characterized for
Federal income tax purposes as an association taxable as a corporation or
otherwise have any material adverse impact on the Federal or applicable state
income taxation of any outstanding Series of Investor Certificates or any
Certificate Owner and (y) such transfer will not cause a taxable event for
Federal income tax purposes to any Investor Certificateholder.
(c) The Transfer Agent and Registrar will maintain at its expense in the
Borough of Manhattan, the City of New York (and, if specified in the related
Supplement for any Series, Luxembourg (or subject to Section 6.3(a) any other
city designated in such Supplement)), an office or offices or agency or
agencies 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).
(d) Unless otherwise provided in any related Supplement, registration of
transfer of Registered Certificates containing a legend relating to the
restrictions on transfer of such Registered Certificates (which legend shall be
set forth in the Supplement relating to such Investor Certificates) shall be
effected only if:
(i) (a) the sale is of at least U.S. $500,000 principal
amount of such Certificates and (b) a letter from the purchaser
satisfactory to counsel to the Servicer is executed and received;
or
(ii)(a) the Registered Certificates are transferred in
compliance with Rule 144 (or any amendment thereto) or Rule 144A
(or any amendment thereto) under the 1933 Act, and (b) a letter
from the purchaser satisfactory to counsel to the Servicer is
executed and received; or
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(iii) the Registered Certificates are sold or otherwise
transferred 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
request, an Opinion of Counsel satisfactory to it or them, in form
and substance satisfactory to it or them, is furnished to such
effect.
Registered Certificates issued upon registration of transfer of, or
Registered Certificates issued in exchange for, Registered 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 a Registered Certificate containing the legend set forth in the
related Supplement is presented to the Transfer Agent and Registrar for
registration of transfer, the Transfer Agent and Registrar shall promptly seek
written instructions from the Servicer regarding such transfer. The Transfer
Agent and Registrar and the Trustee shall be entitled to receive written
instructions signed by a Servicing Officer prior to registering any such
transfer or authenticating new Registered Certificates, as the case may be.
The Servicer 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 on their part and arising out of or in connection with actions
taken or omitted by them in good faith and in the exercise of ordinary care in
reliance on and in accordance with any such written instructions furnished
pursuant to this Section 6.3(d).
SECTION 6.4 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, the Trustee and the
Transferor 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 (or the
Trustee on behalf of the Trust, if specified in the applicable Supplement)
shall execute and 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 Undivided
Interest, if applicable. In connection with the issuance of any new
Certificate under this Section 6.4, the Trustee or the Transfer Agent and
Registrar may require the payment by the Certificateholder of a sum sufficient
to cover any tax or governmental charges (including those incurred by the
Trustee or the Transfer Agent and Registrar) connected therewith. Any
duplicate Certificate issued pursuant to this Section 6.4 shall constitute
complete and indefeasible evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
and presented at any time.
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SECTION 6.5 PERSONS DEEMED OWNERS. Prior to due presentation of a
Certificate (other than a Bearer Certificate) for registration of transfer, the
Trustee, the Paying Agent, the Transfer Agent and Registrar and any agent or
representative of any of them may treat the person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Article IV and for all other purposes
whatsoever, and neither the Trustee, the Paying Agent, the Transfer Agent and
Registrar nor any agent or representative of any of them shall be affected by
any notice to the contrary. In the case of a Bearer Certificate, the Trustee,
the Paying Agent, the Transfer Agent and Registrar and any agent or
representative of any of them may 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 Article IV and for all other purposes
whatsoever, and neither the Trustee, the Paying Agent, the Transfer Agent and
Registrar nor any agent or representative of any of them shall be affected by
any notice to the contrary. Notwithstanding the foregoing provisions of this
Section 6.5, in determining whether the holders of the requisite Undivided
Interests have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Certificates owned by the Transferor, the Servicer
or any Affiliate thereof shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Certificates which the Trustee 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 United
States, the Transferor, the Servicer or an Affiliate thereof .
SECTION 6.6 APPOINTMENT OF PAYING AGENT. The Paying Agent shall make
distributions to Investor Certificateholders from the Collection Account (or
any other account or accounts maintained for the benefit of Certificateholders
as specified in the related Supplement for any Series) pursuant to Articles IV
and V. Any Paying Agent shall have the revocable power to withdraw funds from
the Collection Account (or any other account or accounts maintained for the
benefit of Certificateholders as specified in the related Supplement for any
Series) for the purpose of making the distributions referred to above. The
Trustee (or the Servicer if the Trustee is the Paying Agent) may revoke such
power and remove the Paying Agent if the Trustee (or the Servicer if the
Trustee is the Paying Agent) determines in its sole discretion that the Paying
Agent shall have failed to perform its obligations under this Agreement in any
material respect or for other good cause. The Paying Agent shall (unless
otherwise specified in the related Supplement for any Series) 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 of Investor Certificates is
listed on the Luxembourg Stock Exchange or other stock exchange and such
exchange so requires, a co-paying agent in Luxembourg or the location of such
other stock exchange. The Trustee shall be permitted to resign as Paying
Agent upon 30 days' prior written notice to the Servicer and the Transferor;
provided, however, that such resignation shall not be effective and the Trustee
shall continue to perform the duties of Paying Agent until
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the appointment of a successor Paying Agent, pursuant to this Section 6.6. The
Transferor shall notify the Rating Agencies and the Trustee (if it is not then
serving as the Paying Agent) of any resignation or replacement of the Paying
Agent. In the event that the Trustee shall no longer be the Paying Agent, the
Transferor shall appoint a successor to act as Paying Agent and such successor
shall be acceptable to the Trustee. The Trustee shall cause the initial Paying
Agent (unless the initial Paying Agent is the Trustee) and each successor
Paying Agent or any additional Paying Agent appointed by the Transferor to
execute and deliver to the Trustee an instrument in which such initial or
successor Paying Agent or additional Paying Agent shall agree with the Trustee
that, as Paying Agent, such initial or successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the Investor
Certificateholders in trust for the benefit of the Investor Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders. The
Paying Agent shall return all unclaimed funds to the Trustee and upon removal
of a Paying Agent shall also return all funds in its possession to the Trustee.
The provisions of Sections 11.1, 11.2 and 11.3 shall apply to the Trustee also
in its role as Paying Agent, for so long as the Trustee shall act as Paying
Agent. Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
If specified in the related Supplement for any Series, so long as the
Investor Certificates of such Series are outstanding and such Investor
Certificates are held by the related Certificate Owners as Definitive
Certificates (for Registered Certificates not held in book-entry form, the
Transferor shall, if the Paying Agent is not located in New York City, appoint
a co-paying agent in New York City acceptable to the Trustee or any other city
designated in such Supplement which, if and so long as any Series of Investor
Certificates is listed on the Luxembourg Stock Exchange or other stock exchange
and such exchange so requires, shall be in Luxembourg or such other locations
required by such other stock exchange.
SECTION 6.7 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
The Trustee will furnish or cause to be furnished by the Transfer Agent and
Registrar to the Servicer or the Paying Agent (or any agent thereof), within
five Business Days after receipt by the Trustee of a request therefor from the
Servicer or the Paying Agent, respectively, in writing, a list in the form
maintained by the Trustee, of the names and addresses of the Investor
Certificateholders (other than Bearer Certificateholders). If Holders
representing Undivided Interests in the Trust aggregating not less than 10% of
the Investor Amount of the Investor Certificates of such Series (the
"Applicants") apply in writing to the Trustee, and such application states that
the Applicants desire to communicate with other Investor Certificateholders of
such Series with respect to their rights under this Agreement or under the
Investor Certificates and is accompanied by a copy of the communication which
such Applicants propose to transmit, then the Trustee, after having been
adequately indemnified by such Applicants for its costs and expenses,
and having given the Servicer notice that such request has been made together
with copies of such applications and proposed communications to Investor
Certificateholders, shall afford or shall cause the Transfer Agent and
Registrar to afford such Applicants access
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during normal business hours to the most recent list of Investor
Certificateholders (other than Bearer Certificateholders) held by the Trustee,
or shall mail or cause to be mailed such list within five Business Days after
the receipt of such application. Such list shall be as of a date no more than
45 days prior to the date of receipt of such Applicants' request.
Every Certificateholder, by receiving and holding a Certificate agrees
with the Trustee that none of the Trustee, the Transfer Agent and Registrar,
the Transferor, the Servicer or the Sellers, nor any of their respective agents
or representatives shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Investor
Certificateholders (other than Bearer Certificateholders) hereunder, regardless
of the sources from which such information was derived.
SECTION 6.8 AUTHENTICATING AGENT.
(a) The Trustee may appoint one or more authenticating agents with
respect to the Certificates which shall be authorized to act on behalf of the
Trustee in authenticating the Certificates in connection with the issuance,
delivery, registration of transfer, exchange or repayment of 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 a certificate of authentication executed
on behalf of the Trustee by an authenticating agent. Each authenticating agent
must be reasonably acceptable to the Transferor.
(b) Any institution succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
(c) An authenticating agent may at any time resign by giving written
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.
(d) The Trustee agrees to pay from its own funds, on behalf of the Trust,
to each authenticating agent from time to time reasonable compensation for its
services under this Section 6.8.
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(e) The provisions of Sections 11.1, 11.2 and 11.3 shall be applicable to
any authenticating agent.
(f) Pursuant to an appointment made under this Section 6.8, the
Certificates may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
"This is one of the Certificates described in the Master Pooling and
Servicing Agreement.
-----------------------
as Authenticating Agent
for the Trustee,
By:
--------------------
Authorized Officer"
SECTION 6.9 TENDER OF EXCHANGEABLE TRANSFEROR CERTIFICATE.
(a) The Transferor and the Trustee may at any time and from time to time
enter into one or more Supplements for the purpose of authorizing the issuance
by the Trust to the Transferor, one or more Series of Investor Certificates.
Upon any Exchange, the Trustee shall issue to the Transferor under Section 6.1
for execution (unless the Trustee is to execute such Series on behalf of the
Trust, as specified in the applicable Supplement) and redelivery to the Trustee
for authentication under Section 6.2 one or more new Series of Investor
Certificates. Any such Series of Investor Certificates shall be substantially
in the form specified in the applicable Supplement and shall bear, upon its
face, the designation for such Series to which it belongs so selected by the
Transferor. Except as specified in the Supplement for any Series as to
differing treatment of the Investor Certificates within such Series, all
Investor Certificates of any Series shall be equally and ratably entitled as
provided herein to the benefits hereof without preference, priority or
distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Agreement and
the applicable Supplement.
(b) The Holder of the Exchangeable Transferor Certificate may tender the
Exchangeable Transferor Certificate to the Trustee in exchange for (i) one or
more newly issued Series of Investor Certificates and (ii) a reissued
Exchangeable Transferor Certificate (any such tender an "Exchange"). The
Transferor may perform an Exchange by notifying the Trustee, in writing at
least three (3) days in advance (an "Exchange Notice") of the date upon which
the Exchange is to occur (an "Exchange Date"). Any Exchange Notice shall state
the designation of any Series to be issued on the Exchange
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Date and, with respect to each such Series: (x) its Initial Investor Amount
(or the method for calculating such Initial Investor Amount), if any, which, in
the aggregate, at any time, may not be greater than the current principal
amount of the Exchangeable Transferor Certificate less the product of the
Minimum Transferor Interest Percentage and the Aggregate Principal Receivables
at such time, and (y) its Certificate Rate (or the method for allocating
interest payments or other cash flows to such Series), if any and (z) the
applicable Enhancement, if any, for such Investor Certificates. On the
Exchange Date, the Trustee shall authenticate and deliver any such Series only
upon delivery to it of the following: (A) a Supplement in form satisfactory to
the Trustee executed by the Transferor and specifying the Principal Terms of
such Series, (B) the applicable Enhancement, if any, (C) an Opinion of Counsel
to the effect that, unless otherwise specified in the related Supplement, the
newly issued Series of Investor Certificates will be characterized as either
indebtedness or an interest in a partnership under existing law for Federal
income tax purposes and that the issuance of the newly issued Series of
Investor Certificates will not have any material adverse effect on the Federal
income tax characterization of any outstanding Series of Investor Certificates
that have been the subject of a previous opinion of tax counsel or result in
the Trust being taxable as an association for Federal or applicable state tax
purposes (such opinion, a "Tax Opinion"), (D) an agreement, if any, pursuant to
which the Enhancement Provider agrees to provide Enhancement, (E) written
confirmation from each Rating Agency that the Exchange will satisfy the Rating
Agency Condition and (F) the existing Exchangeable Transferor Certificate,
together with a written certification from the Transferor that the Transferor
Amount is at least equal to the Minimum Transferor Amount. Upon satisfaction
of such conditions, the Trustee shall cancel the existing Exchangeable
Transferor Certificate and issue, as provided above, such Series of Investor
Certificates and new Exchangeable Transferor Certificate, dated the Exchange
Date.
(c) In conjunction with an Exchange, the parties hereto shall execute a
Supplement, which shall specify the relevant terms with respect to any Series
of Investor Certificates, which may include, without limitation: (i) its name
or designation, (ii) an Initial Investor Amount or the method of calculating
the Initial Investor Amount, (iii) a Certificate Rate or Certificate Rates (or
formula for the determination thereof), (iv) the rights of the Holder of the
Exchangeable Transferor Certificate that have been transferred to the Holders
of such Series pursuant to such Exchange, (v) the interest payment date or
dates and the date or dates from which interest shall accrue, (vi) the method
of allocating Collections of Principal Receivables for such Series and, if
applicable, with respect to other Series and the method by which the principal
amount of Investor Certificates of such Series shall amortize or accrete and
the method for allocating Collections of Finance Charge Receivables and
Receivables in Defaulted Accounts, (vii) the names of any accounts to be used
by such Series and the terms governing the operation of any such
account, (viii) the Servicing Fee Percentage, (ix) the Minimum Transferor
Interest Percentage, (x) the Minimum Aggregate Principal Receivables, (xi) the
Series Termination Date, (xii) the terms of Enhancement, if any, (xiii) the
Enhancement Provider, if any, (xiv) the base rate, if any, (xv) the Repurchase
Terms or the terms on which the Certificates of such Series may be remarketed
to other investors, (xvi) any deposit into any account
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provided for such Series, (xvii) the number of classes of such Series, and if
more than one class, the rights and priorities of each such class, (xviii) the
extent to which the Investor Certificates will be issuable in temporary or
permanent global form, and in such case, the depository 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, (xix) whether the Certificates may be issued
in bearer form and any limitations imposed thereon and provisions relating to
compliance with applicable laws and rules for bearer instruments, (xx) the
priority of any Series with respect to any other Series, and (xxi) any other
relevant terms of such Series (all such terms, the "Principal Terms" of such
Series). The terms of such Supplement may modify or amend the terms of this
Agreement solely as applied to such new Series. If on the date of the issuance
of such Series, there is issued and outstanding no Series of Investor
Certificates which is currently rated by a Rating Agency, then as a condition
to such Exchange, a nationally recognized investment banking firm or commercial
bank (which may include NationsBanc Capital Markets, Inc.) shall also deliver
to the Trustee an opinion stating, in substance, that the Exchange will not
have an adverse effect on the timing or distribution of payments to such other
Series of Investor Certificates then issued and outstanding.
(d) The creation or sale of any additional interest in the Trust or the
Receivables, whether or not designated as an Exchange (including, but not
limited to, the receipt by the Trust or the Transferor of the proceeds of any
loan or additional loan provided by an Enhancement Provider) shall require the
delivery of a Tax Opinion with respect to such interest.
SECTION 6.10 GLOBAL CERTIFICATE; EURO-CERTIFICATE EXCHANGE DATE.
(a) If specified in the related Supplement for any Series, the Investor
Certificates may be initially issued in the form of a single temporary Global
Certificate (the "Global Certificate") in bearer form, without interest
coupons, in the denomination of the Initial Investor Amount and substantially
in the form attached to the applicable Supplement. Unless otherwise specified
in the applicable Supplement, the provisions of this Section 6.10 shall apply
to such Global Certificate. The Global Certificate will be authenticated by
the Trustee upon the same conditions, in substantially the same manner and with
the same effect as the Definitive Certificates. The Global Certificate may be
exchanged as described in this Section 6.10 or in the applicable Supplement for
Bearer Certificates and/or Registered Certificates in definitive form (the
"Definitive Euro-Certificates"). Notwithstanding the foregoing, no
Certificates shall be issued in bearer form unless the Transferor has
determined, and delivers an Opinion of Counsel to the Trustee substantially to
the effect that, the terms and procedures governing issuance and transfer of
such Certificates result in favorable treatment to Investor Certificateholders
under the Bearer Rules.
(b) The Manager shall, upon its determination of the date of completion
of the distribution of the Certificates, so advise the Trustee, the Transferor,
the Common
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Depositary, and each Foreign Clearing Agency in writing forthwith. Without
unnecessary delay, but prior to the Euro-Certificate Exchange Date, the
Transferor will execute and deliver to the Trustee at its office or to the
Trustee's designated agent outside the United States definitive Bearer
Certificates in an aggregate principal amount equal to the Initial Investor
Amount. All Bearer Certificates so issued and delivered will have Coupons
attached. The Global Certificate may be exchanged for an equal aggregate
principal amount of Definitive Euro-Certificates only on or after the
Euro-Certificate Exchange Date. A United States institutional investor will be
required to deliver to the Transferor, the Trustee and the Manager at the time
of its purchase of Registered Certificates a signed certificate substantially
in the form attached to the Supplement for the related Series. Upon any demand
for exchange for Definitive Certificates in accordance with this paragraph, the
Transferor shall cause the Trustee to authenticate and deliver the Definitive
Certificates to the Holder (x) outside the United States, in the case of Bearer
Certificates, and (y) according to the instructions of the Holder, in the case
of Registered Certificates, but only upon presentation to the Trustee of a
written statement substantially in the form attached to the Supplement for the
related Series with respect to the Global Certificate or portion thereof being
exchanged signed by a Foreign Clearing Agency, to the effect that it has
received in writing or by tested telex a certification substantially in the
form of the certificate attached to the Supplement for the related Series, such
certificate being dated no earlier than 15 days prior to the Euro-Certificate
Exchange Date and signed by or on behalf of the person appearing in the records
of a Foreign Clearing Agency as the beneficial owner of the Global Certificate
or portion thereof being exchanged. Upon receipt of such certification, the
Trustee shall cause the Global Certificate to be endorsed in accordance with
paragraph (d) below. Unless otherwise provided in the applicable Supplement,
any exchange as provided in this Section 6.10(b) shall be made free of charge
to the holders and the beneficial owners of the Global Certificate and to the
beneficial owners of the Definitive Euro-Certificates issued in exchange,
except that a person receiving Definitive Euro-Certificates must bear the cost
of insurance, postage, transportation and the like in the event that such
person does not receive such Definitive Euro-Certificates in person at the
offices of a Foreign Clearing Agency.
(c) 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 this Agreement.
(d) Upon any such exchange of all or a portion of the Global Certificate
for a Definitive Euro-Certificate or Certificates, such Global Certificate
shall be endorsed by or on behalf of the Trustee to reflect the reduction of
its principal amount by an amount equal to the aggregate principal amount of
such Definitive Euro-Certificate or Certificates. Until so exchanged in full,
such Global Certificate shall in all respects be entitled to the same benefits
under this Agreement as Definitive Euro-Certificates authenticated and
delivered hereunder, except that the beneficial owners of such Global
Certificate shall not be entitled to receive payments of interest on the
Certificates until they have exchanged their beneficial interests in such
Global Certificate for Definitive Euro-Certificates.
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SECTION 6.11 BOOK-ENTRY CERTIFICATES. Unless otherwise provided in
any related Supplement, the Investor Certificates, upon original issuance, will
be issued in the form of the requisite number of typewritten Certificates
representing the Book-Entry Certificates, to be delivered to The Depository
Trust Company, the initial Clearing Agency, by, or on behalf of, the
Transferor. The Investor Certificates shall initially be registered on the
Certificate Register in the name of Cede, the nominee of the Clearing Agency,
and no Certificate Owner will receive a definitive certificate representing
such Certificate Owner's interest in the Investor Certificates, except as
provided in Section 6.13. Unless and until definitive, fully registered
Investor Certificates (the "Definitive Certificates") have been issued to
Certificate Owners pursuant to Section 6.13:
(i) the provision of this Section 6.11 shall be in full
force and effect;
(ii) the Transferor, the Servicer, the Paying Agent, the
Transfer Agent and Registrar and the Trustee may deal with the
Clearing Agency for all purposes (including the making of
distributions on the Investor Certificates) as the authorized
representatives of the Certificate Owners;
(iii) to the extent that the provisions of this Section 6.11
conflict with any other provisions of this Agreement, the
provisions of this Section 6.11 shall control;
(iv) the rights of 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 6.13, the initial Clearing Agency will
make book-entry transfers among the Clearing Agency Participants
and receive and transmit distributions of principal and interest
on the Investor Certificates to such Clearing Agency Participants;
and
(v) whenever this Agreement requires or permits actions to
be taken based upon instructions or directions of a specified
percentage of the Investor Amount of any or all Series of Certificates
outstanding, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to such
effect from Certificate Owners and/or Clearing Agency Participants owning
or representing, respectively, such required percentage of the beneficial
interest in Investor Certificates.
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SECTION 6.12 NOTICES TO CLEARING AGENCY. Whenever notice or other
communication to the Investor Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued to
Certificate Owners pursuant to Section 6.13, the Trustee, the Servicer and the
Paying Agent shall give all such notices and communications specified herein to
be given to Holders of the Investor Certificates to the Clearing Agencies.
SECTION 6.13 DEFINITIVE CERTIFICATES. If Book-Entry Certificates have
been issued pursuant to Section 6.11 and if (i)(A) the Transferor advises the
Trustee in writing that the Clearing Agency is no longer willing or able to
discharge properly its responsibilities under the Depository Agreement, and (B)
the Trustee or the Transferor is unable to locate a qualified successor (which
successor must be treated as maintaining a book-entry system within the meaning
of Section 163(f)(3) of the Code), (ii) the Transferor at its option, advises
the Trustee in writing that it elects to terminate the book-entry system
through the Clearing Agency with respect to the Certificates or (iii) after the
occurrence of a Servicer Default, Certificate Owners representing beneficial
interests aggregating more than 50% of the Investor Amount of any Series advise
the Trustee and the Clearing Agency through the Clearing Agency Participants in
writing that the continuation of a book-entry system through the Clearing
Agency is no longer in the best interests of the Certificate Owners, the
Trustee shall notify the Certificate Owners, through each applicable Clearing
Agency, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of the Investor Certificates by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency for
registration, the Trustee shall issue the Definitive Certificates. None of the
Servicer, the Transferor, the Transfer Agent and Registrar nor the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates, all references herein to
obligations imposed upon or to be performed by the Clearing Agency shall be
deemed to be imposed upon and performed by the Trustee to the extent applicable
with respect to such Definitive Certificates and the Trustee shall recognize
the Holders of the Definitive Certificates as Certificateholders hereunder.
SECTION 6.14 MEETINGS OF CERTIFICATEHOLDERS.
(a) Unless not permitted by the Supplement for any Series issued in whole
or in part in Bearer Certificates, the Transferor, the Servicer or the Trustee
may at any time call a meeting of the Certificateholders of such Series or of
all Series, to be held at such time and at such place as the Transferor, 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 with respect to such Series
or in the Certificates of such Series, subject to Section 13.1. References in
this Section 6.14 to Certificateholders shall be deemed to refer to the
Exchangeable Transferor Certificates and only those Series of Investor
Certificates for which this Section 6.14 is applicable. Notice of any meeting
of Certificateholders, setting forth the time and
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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 and at least once
in an Authorized Newspaper and, if and for so long as the Certificates are
listed on the Luxembourg Stock Exchange or other stock exchange and such
exchange so requires, in a newspaper of general circulation in Luxembourg
(which newspaper shall be printed in the English or French language and
customarily published on each business day in Luxembourg) or the location
required by such other stock exchange, the first 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 Certificateholders, a person shall be (i) a
Holder of one or more Certificates of the applicable Series or (ii) a person
appointed by an instrument in writing as proxy by the Holder of one or more
Certificates. The only Persons who shall be entitled to be present or to speak
to any meeting of 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 counsels.
(b) At a meeting of Investor Certificateholders, persons entitled to vote
Investor Certificates evidencing Undivided Interests aggregating a majority of
the Investor Amount of the applicable Series 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 adjourned 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 at least 25% in
Undivided Interest of the applicable Series 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 (5) 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 Investor Certificates which shall
constitute a quorum.
(c) Any 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
Certificateholders 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 Certificateholder duly held in accordance with this Section
6.14 shall be binding on all the 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
and the Trustee, executed by any bank, trust company or recognized securities
dealer, wherever situated, satisfactory to the Servicer and the Trustee. Each
such certificate shall be dated and shall
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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 or
certified by a bank, trust company or recognized securities dealer on behalf of
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. The holding of Registered Certificates shall be proved by the
Certificate Register or by a certificate or certificates of the Transfer Agent
and Registrar.
(e) The Trustee shall appoint a temporary chairman of the meeting. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the holders of a majority in Undivided Interest of the Certificates of
such Series represented at the meeting. No vote shall be cast or counted at
any meeting in respect of any Certificate challenged as not outstanding and
ruled by the chairman of the meeting to be not outstanding. The chairman of
the meeting shall have no right to vote except as a Certificateholder or proxy.
Any meeting of 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
Certificateholders shall be by written ballot on which shall be subscribed the
signatures of the Certificateholders or proxies and on which shall be inscribed
the serial number or numbers of the Certificates held or represented by them.
The permanent chairman 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 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 chairman 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.
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ARTICLE VII
OTHER MATTERS RELATING
TO THE TRANSFEROR
SECTION 7.1 LIABILITY OF THE TRANSFEROR. The Transferor shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Transferor in such capacity herein.
SECTION 7.2 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, THE TRANSFEROR. The Transferor shall not consolidate with or
merge into any other business entity or convey or transfer its properties and
assets substantially as an entirety to any Person, unless:
(i) the entity formed by such consolidation or into which
the Transferor is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Transferor
substantially as an entirety shall be organized and existing under
the laws of the United States of America or any State or the
District of Columbia, a national banking association or a state
banking corporation or other depository entity whose deposits are
insured by the FDIC which is not subject to the bankruptcy laws of
the United States of America, or a single purpose, bankruptcy
remote entity that is organized under the laws of any state of the
United States, in each case, which is wholly-owned (other than
director qualifying shares) directly or indirectly, by Xxxxxxxx'x,
Inc. or its successors or assigns, and meets the Rating Agency
Condition 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 satisfactory to the Trustee,
the performance of every covenant and obligation of the
Transferor, as applicable, hereunder and shall benefit from all
the rights granted to the Transferor, as applicable, hereunder.
To the extent that any right, covenant or obligation of the
Transferor is inapplicable to the successor entity, such successor
entity shall be subject to such covenant or obligation, or benefit
from such right, as would apply, to the extent practicable, to
such successor entity;
(ii) no Pay Out Event shall occur as a result of any such
consolidation, merger, conveyance or transfer;
(iii) the Transferor has delivered to the Trustee an
Officer's Certificate signed by a Vice President or more senior
officer of the Transferor and an Opinion of Counsel each stating
that such consolidation, merger, conveyance or transfer and such
supplemental agreement comply with this Section 7.2 and that all
conditions precedent herein provided for relating to such
transaction have been complied with;
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(iv) the Transferor shall have delivered written notice of
such consolidation, merger, conveyance or transfer to the Trustee,
each Rating Agency assigning a rating to any class of Investor
Certificates of any then outstanding Series, each Person, if any,
specified in the Supplement with respect to each class of Investor
Certificates of any then outstanding Series which is not assigned
a rating by any Rating Agency and each Enhancement Provider; and
(v) the Transferor shall have received written notice from
each Rating Agency that such consolidation, merger, conveyance or
transfer will not result in a downgrading or withdrawal of its
then current rating of any outstanding Series of Investor
Certificates and shall have delivered copies of each such written
notice to the Servicer, the Trustee and each Person, if any
specified in the Supplement with respect to each class of Investor
Certificates of any then outstanding Series which is not assigned
a rating by any Rating Agency.
(b) The obligations of the Transferor hereunder shall not be
assignable nor shall any Person succeed to the obligations of the Transferor
hereunder except in each case in accordance with the provisions of the
foregoing paragraph.
SECTION 7.3 LIMITATION ON LIABILITY OF THE TRANSFEROR. The
directors, officers, employees, agents and representatives of the Transferor
shall not be under any liability to the Trust, the Servicer, the Trustee, the
Certificateholders, any Enhancement Provider, if any, or any other Person
hereunder or pursuant to any document delivered hereunder, it being expressly
understood that all such liability is expressly waived and released as a
condition of, and as consideration for, the execution of this Agreement and any
Supplement and the issuance of the Certificates; provided, however, that this
provision shall not protect the officers, directors, employees or agents of the
Transferor against any liability which would otherwise be imposed by reason of
bad faith or gross negligence in the performance of duties hereunder. Except
as provided in Sections 7.1 or 7.4, the Transferor shall not be under any
liability to the Trust, the Servicer, the Trustee, the Certificateholders, any
Enhancement Provider or any other Person for any action taken or for refraining
from the taking of any action in its capacity as Transferor pursuant to this
Agreement or any Supplement, however arising under this Agreement or any
Supplement; provided, however, that this provision shall not protect the
Transferor against any liability which would otherwise be imposed by reason of
its bad faith or gross negligence in the performance of its duties as
Transferor hereunder. The Transferor and any director, officer, employee,
agent or representative of the Transferor may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder.
[SECTION 7.4 LIABILITIES. Notwithstanding Section 7.3, by entering
into this Agreement, the Transferor agrees to be liable, directly to the
injured party, for the
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entire amount of any losses, claims, damages, expenses, or liabilities related
to (other than those incurred by a Certificateholder in the capacity of an
investor in the Investor Certificates as a result of the performance of the
Receivables, market fluctuations, a shortfall in any Enhancement or other
similar market or investment risks) or arising out of or based on the
arrangement created by this Agreement and the actions of the Servicer taken
pursuant hereto as though this Agreement created a partnership under the
Uniform Partnership Act in Alabama, Mississippi and Nevada. The Transferor
agrees to pay, indemnify and hold harmless each Investor Certificateholder
against and from any and all such losses, claims, expenses, damages and
liabilities (other than those incurred by a Certificateholder in the capacity
of an investor in the Investor Certificates as a result of the performance of
the Receivables, market fluctuations, a shortfall in any Enhancement or other
similar market or investment risks) arising as a result of the Trust not being
taxed as a partnership under the income tax laws of the States of Alabama,
Minnesota, Mississippi and/or Nevada, except to the extent that they arise from
any action or omission by such Investor Certificateholders. Subject to
Sections 8.3 and 8.4, in the event of a Service Transfer, the Successor
Servicer will indemnify and hold harmless the Transferor for any losses,
claims, damages and liabilities of the Transferor as described in this Section
7.4 arising from the actions or omissions of such Successor Servicer.]
ARTICLE VIII
OTHER MATTERS RELATING
TO THE SERVICER
SECTION 8.1 LIABILITY OF THE SERVICER. The Servicer shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Servicer in such capacity herein.
SECTION 8.2 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, THE SERVICER. The Servicer shall not consolidate with or merge
into any other business entity or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(i) 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 organized and existing under
the laws of the United States of America or any State or the
District of Columbia, or shall be a national banking association,
state banking corporation or other entity which is not subject to
the bankruptcy laws of the United States of America, and if the
Servicer is not the surviving entity, shall be an Eligible
Servicer and shall expressly assume, by an agreement supplemental
hereto, executed and delivered to the Trustee, the performance of
every covenant and obligation of the
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Servicer, as applicable, hereunder and shall benefit from all the
rights granted to the Servicer, as applicable, hereunder. To the extent
that any right, covenant or obligation of the Servicer is inapplicable to
the successor entity, such successor entity shall be subject to such
covenant or obligation, or benefit from such right, as would apply, to
the extent practicable, to such successor entity;
(ii) the Servicer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such
supplemental agreement comply with this Section 8.2 and that all
conditions precedent herein provided for relating to such
transaction have been complied with;
(iii) the Servicer shall have received written notice from
each Rating Agency that such assignment and succession will not
result in a downgrading or withdrawal of its then current rating
of any outstanding Series of Investor Certificates and shall have
delivered copies of each such notice to the Transferor and the
Trustee and each Person, if any, specified in the Supplement with
respect to each class of Investor Certificates of any then
outstanding Series which is not assigned a rating by any Rating
Agency.
(iv) The Transferor shall have delivered written notice of
such consolidation, merger, conveyance or transfer to the Trustee,
each Rating Agency assigning a rating to any class of Investor
Certificates of any then outstanding Series, and each Person, if
any, specified in the Supplement with respect to each class of
Investor Certificates of any then outstanding Series which is not
assigned a rating by any Rating Agency, and each Enhancement
Provider; and
The Servicer shall promptly advise the Rating Agencies in writing of any such
consolidation, merger, conveyance or transfer.
SECTION 8.3 LIMITATION ON LIABILITY OF THE SERVICER AND OTHERS. The
directors, officers, employees, agents and representatives of the Servicer
shall not be under any liability to the Trust, the Transferor, the Trustee, the
Certificateholders, any Enhancement Provider or any other Person hereunder or
pursuant to any document delivered hereunder, it being expressly understood
that all such liability is expressly waived and released as a condition of, and
as consideration for, the execution of this Agreement and any Supplement and
the issuance of the Certificates; provided, however, that this provision shall
not protect the directors, officers, employees or agents of the Servicer
against any liability which would otherwise be imposed by reason of bad faith
or negligence in the performance of the Servicer's express duties hereunder.
Except as provided in Section 8.4, the Servicer shall not be under any
liability to the Trust, the Transferor, the Trustee, the Certificateholders,
any Enhancement Provider or any other
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Person for any action taken or for refraining from the taking of any action in
its capacity as Servicer pursuant to this Agreement or any Supplement, however
arising under this Agreement or any Supplement; provided, however, that this
provision shall not protect the Servicer against any liability which would
otherwise be imposed by reason of bad faith or gross negligence in the
performance of its duties as Servicer hereunder. The Servicer and any
director, officer, employee, agent, or representative of the Servicer may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Servicer
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties to service the Receivables in
accordance with this Agreement or any Supplement and which in its reasonable
opinion may involve it in any expense or liability.
SECTION 8.4 INDEMNIFICATION OF THE TRUST AND THE TRUSTEE. The Servicer
shall indemnify and hold harmless the Transferor, the Trust, for the benefit of
the Certificateholders, and the Trustee, including its officers, directors,
agents and employees, from and against any loss, liability, expense, damage or
injury suffered or sustained by them and arising out of or relating to any
claims, actions or proceedings brought or asserted by third parties regarding
the activities of the Trust or the Trustee for which the Servicer is
responsible pursuant to this Agreement or any Supplement, including but not
limited to any judgment, award, settlement, reasonable attorneys' fees and
other costs or expenses incurred in connection with the defense of any actual
or threatened action, proceeding or claim; provided, however, that the Servicer
shall not indemnify (a) the Transferor, the Trust or the Trustee or their
respective officers, directors, agents and employees for liabilities imposed by
reason of fraud, negligence or breach of fiduciary duty by (i) the Trustee in
the performance of its duties under this Agreement or (ii) the Transferor or
any Certificateholders, (b) the Transferor, the Trust, the Trustee, the
Certificate Owners or the Certificateholders for liabilities arising from
actions taken by the Trustee at the request of Certificateholders, (c) the
Transferor, the Trust, the Trustee, the Certificate Owners or the
Certificateholders as to any losses, claims or damages incurred by a
Certificateholder or a Certificate Owner in its capacity as an investor,
including without limitation losses incurred as a result of Defaulted
Receivables or Receivables which are charged off as uncollectible or (d) the
Trust, the Trustee, the Certificate Owners or the Certificateholders for any
liabilities, costs or expenses of the Trust, the Trustee or the Certificate
Owners or Certificateholders arising under any tax law, including without
limitation any Federal, state or local income or franchise tax or any other tax
imposed on or measured by income (including any interest or penalties with
respect thereto or arising from a failure to comply therewith) required to be
paid by the Trust, the Certificate Owners or the Certificateholders in
connection with the Trust or this Agreement to any taxing authority. Except as
set forth in the preceding sentence, neither the Servicer nor any of its
directors, officers, employees or agents will be under any other liability to
the Trust, the Trustee, the Certificateholders or any other person for any
action taken, or for refraining from taking any action pursuant to this
Agreement. Neither the Transferor nor the Servicer nor any of their respective
directors, officers, employees or agents will be protected against any
liability which would otherwise be imposed by reason of bad faith or gross
negligence by or on behalf of the Transferor or the Servicer in the performance
of
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their respective duties hereunder. The Transferor and the Servicer will be
liable for any actual damages resulting directly from the material failure to
perform any of their respective obligations under this Agreement. In addition,
the Servicer is not under any obligation to appear in, prosecute or defend any
legal action which is not incidental to its servicing responsibilities under
this Agreement and which in its opinion may expose it to any expense or
liability.
Subject to Sections 7.1 and 7.4 and Section 10.2(b) of the Agreement, any
indemnification pursuant to this Section 8.4 shall only be from the assets of
the Servicer. The provisions of this indemnity shall run directly to and be
enforceable by an injured party subject to the limitations hereof and shall
survive the termination of this Agreement, the resignation and removal of the
Trustee and the payment in full of the Certificates.
SECTION 8.5 THE SERVICER NOT TO RESIGN. The Servicer shall not resign
from the obligations and duties hereby imposed on it as such except upon
determination that (i) the performance of its duties hereunder is or will
become impermissible under applicable law, regulation or order and (ii) there
is no reasonable action which the Servicer could take to make the performance
of its duties hereunder permissible under applicable law. Any such
determination permitting the resignation of the Servicer shall be evidenced as
to clause (i) of this Section by an Opinion of Counsel to such effect delivered
to the Trustee. No such resignation will become effective until the Trustee or
a Successor Servicer has assumed the Servicer's responsibilities and
obligations under this Agreement. If the Trustee is unable within 120 days of
the date of such determination to appoint a Successor Servicer pursuant to
Section 10.2(a), the Trustee or its duly appointed agent (which may not be the
outgoing Servicer) shall serve as Successor Servicer hereunder but the Trustee
shall have continued authority to appoint another Person as 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 the
Investor Certificateholders, or by applicable statutes or regulations, to
review such documentation, such access being afforded without charge but only
(i) upon reasonable request, (ii) during normal business hours, (iii) subject
to such security and confidentiality requirements and procedures as are
specified herein and/or which the Servicer may deem reasonably necessary and
(iv) at offices designated by the Servicer. Nothing in this Section 8.6 shall
derogate from the obligation of the Transferor, the Trustee or the Servicer to
observe any applicable law prohibiting disclosure of information regarding the
Obligors and the failure of the Servicer to provide access as provided in this
Section 8.6 as a result of such obligation shall not constitute a breach of
this Section 8.6.
SECTION 8.7 DELEGATION OF DUTIES. It is understood and agreed by the
parties hereto that the Servicer may delegate certain of its duties hereunder
to any Person, including XxXxx, Inc., as Subservicer who agrees to conduct such
duties in accordance
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with the applicable Credit Card Guidelines and the terms of this Agreement.
The fees of any Person to whom such duties are delegated shall be paid for by
the Servicer, from any source, including the Monthly Servicing Fee. Any such
delegations shall not relieve the Servicer of its liability and responsibility
with respect to such duties, and shall not constitute a resignation within the
meaning of Section 8.5 hereof. If any such delegation is not in the ordinary
course of business, notification thereof shall be given by the Servicer to each
Rating Agency.
SECTION 8.8 EXAMINATION OF RECORDS. The Transferor and the Servicer
shall clearly and unambiguously identify each Account (including any Account
designated pursuant to Section 2.6) in its computer or other records to reflect
that the Receivables arising in such Account have been conveyed to the Trust
pursuant to this Agreement. 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 and other records to determine that such receivable is not
a Receivable.
ARTICLE IX
PAY OUT EVENTS
SECTION 9.1 PAY OUT EVENTS. Unless modified with respect to any
Series of Investor Certificates by the Supplement for such Series, if any one
of the following events shall occur:
(a) the Transferor or the Company shall (i) become insolvent or
admit in writing its inability to generally pay its debts as they become
due or voluntarily and generally suspend payment of its obligations, (ii)
voluntarily seek, consent to, or acquiesce in the benefit or benefits of
any Debtor Relief Law, (iii) become a party to (or be made the subject
of) any proceeding provided for by any Debtor Relief Law, other than as a
creditor or claimant, and, in the event such proceeding is involuntary,
(A) within 10 Business Days after the Transferor or the Company
has knowledge of such proceeding or the filing thereof either (I) the
petition instituting same has not been dismissed or (II) an order has not
been entered by the court having jurisdiction which allows continued
transfer to the Trust of Principal Receivables with no adverse effect to
the Trust or the Certificateholders or (B) an order as contemplated in
(A)(II) above having previously been entered, is no longer in effect
other than by reason of the termination of such proceeding, or (iv)
become unable for any reason to transfer Receivables to the Trust in
accordance with the provisions of this Agreement; or
(b) the Trust or the Transferor shall become an "investment company"
within the meaning of the 1940 Act; or
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then, a Pay Out Event with respect to all Series of Certificates then
outstanding shall occur without any notice or other action on the part of
the Trustee or all Investor Certificateholders immediately upon the
occurrence of such event. Upon actual notice of the occurrence of any
Pay Out Event, the Trustee shall advise (i) each Rating Agency assigning
a rating for any class of Investor Certificates of any then outstanding
Series and (ii) each Person, if any, specified in any Supplement with
respect to each class of Investor Certificates of any then outstanding
Series which is not rated by any Rating Agency, in writing of the
occurrence of any Pay Out Event.
SECTION 9.2 ADDITIONAL RIGHTS UPON THE OCCURRENCE OF CERTAIN EVENTS.
(a) If the Transferor voluntarily goes into liquidation or consents
to the appointment of a conservator, receiver or liquidator under any Debtor
Relief Laws with respect to the Transferor 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 conservator or receiver or liquidator in any Debtor Relief Law
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Transferor; or the Transferor shall admit in writing
its inability to pay its debts generally as they become due, files a petition
to take advantage of any applicable Debtor Relief Laws, makes an assignment for
the benefit of its creditors or voluntarily suspends payment of its obligations
generally; or the Transferor shall become unable for any reason to transfer
Receivables to the Trust in accordance with the provisions of this Agreement
(such voluntary liquidation, appointment, entering of such decree, admission,
filing, making, suspension or inability, a "Dissolution Event"), the Transferor
shall promptly give notice of such event to the Trustee, and the Transferor
shall on the day of such appointment, voluntary liquidation, entering of such
decree, admission, filing, making, suspension or inability, as the case may be
(the "Appointment Day"), immediately cease to transfer Principal Receivables to
the Trust hereunder. 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 Dissolution Event and Collections in
respect of such Principal Receivables and Finance Charge Receivables whenever
created shall continue to be part of the Trust, and such Collections shall
continue to be allocated, deposited and held in accordance with the provisions
'of Article IV. Within 15 days of the receipt by the Trustee of the notice of
a Dissolution Event, the Trustee shall (i) publish a notice in an Authorized
Newspaper that a Dissolution Event has occurred and that the Trustee intends to
sell, dispose of or otherwise liquidate the Receivables in a commercially
reasonable manner and (ii) send written notice to the Investor
Certificateholders and any Enhancement Provider entitled thereto describing the
provisions of this Section 9.2 and requesting instructions from such Holders,
which notice shall request each Investor Certificateholder to advise the
Trustee in writing that it elects one of the following options: (A) the
Investor Certificateholder wishes the Trustee to instruct the Servicer not to
sell, dispose of or otherwise liquidate the Receivables and to instruct the
Servicer to reconstitute the Trust upon the same terms and conditions set forth
herein, or (B) the
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Investor Certificateholder wishes the Trustee to instruct the Servicer to sell,
dispose of or otherwise liquidate the Receivables, or (C) the Investor
Certificateholder refuses to advise the Trustee as to the specific action the
Trustee shall instruct the Servicer to take. If after 90 days from the day
notice pursuant to clause (i) above is first published (the "Publication
Date"), the Trustee shall not have received written instructions of Holders of
Investor Certificates aggregating in excess of 50% of the related Investor
Amount of each Series (or in the case of a Series having more than one class of
Investor Certificates, each class of such Series) and each Holder of any
interest in the Exchangeable Transferor Certificate other than the Transferor
to the effect that the Trustee shall instruct the Servicer not to sell, dispose
of, or otherwise liquidate the Receivables and to instruct the Servicer to
reconstitute the Trust upon the same terms and conditions as set forth herein,
the Trustee shall instruct the Servicer to proceed to sell, dispose of, or
otherwise liquidate the Receivables in a commercially reasonable manner and on
commercially reasonable terms, which shall include the solicitation of
competitive bids and the Servicer shall proceed to consummate the sale,
liquidation or disposition of the Receivables as provided above with the
highest bidder for the Receivables. If, however, with respect to the portion
of the Receivables allocable to any outstanding Series, the Holders of more
than 50% of the principal amount of each class of such Series and each Holder
of any interest in the Exchangeable Transferor Certificate other than the
Transferor, instruct the Trustee not to sell the portion of the Receivables
allocable to such Series, the Trust shall continue with respect to such Series
pursuant to the terms of the Agreement and the Supplement. If specified in the
applicable Supplement, the holder of an Enhancement Investor Amount with
respect to a Series shall be entitled to give instructions pursuant to this
Section 9.2 as if such Enhancement Investor Amount were a class of such Series.
The portion of the Receivables allocable to any Series shall be equal to the
sum of (1) the product of (A) the Transferor Percentage, (B) the Aggregate
Principal Receivables and (C) a fraction the numerator of which is the related
Investor Percentage with respect to Finance Charge Receivables and the
denominator of which is the sum of all Investor Percentages with respect to
Finance Charge Receivables of all Series outstanding and (2) the Investor
Amount of such Series. The Transferor or any of its Affiliates shall be
permitted to bid for the Receivables. In addition the Transferor or any of its
Affiliates shall have the right to match any bid by a third person and be
granted the right to purchase the Receivables at such matched bid price. The
Trustee may obtain a prior determination from the conservator or receiver that
the terms and manner of any proposed sale, disposition or liquidation are
commercially reasonable. The provisions of Sections 9.1 and 9.2 shall not be
deemed to be mutually exclusive.
(b) The proceeds from the sale, disposition or liquidation of the
Receivables pursuant to Section (a) above shall be treated as Collections on
the Receivables allocable to the Investor Certificateholders and shall be
allocated and deposited as Collections allocable to the Investor
Certificateholders of the applicable Series in accordance with the provisions
of Article IV; provided that the Trustee shall determine conclusively without
liability for such determination the amount of such proceeds which are
allocable to Finance Charge Receivables and the amount of such proceeds which
are allocable to Principal Receivables. On the day following the
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Distribution Date on which such proceeds are distributed to the Investor
Certificateholders (assuming that no Series elects to reconstitute the Trust),
the Trust shall terminate.
ARTICLE X
SERVICER DEFAULTS
SECTION 10.1 SERVICER DEFAULTS. If any one of the following events (a
"Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or deposit
or to give instructions or notice to the Trustee to make such payment, transfer
or deposit or to give notice to the Trustee as to any required drawing or
payment under any Enhancement on or before the date occurring five (5) Business
Days after the date such payment, transfer, deposit or drawing or such
instruction or notice is required to be made or given, as the case may be,
under the terms of this Agreement or any Supplement; provided, however, that
any such failure caused by circumstances beyond the Servicer's control shall
not constitute a Servicer Default if the Servicer promptly remedies such
failure within five (5) Business Days after receiving notice of such failure or
otherwise becoming aware of such failure;
(b) failure on the part of the Servicer duly to observe or perform any
other covenants or agreements of the Servicer set forth in this Agreement or
any Supplement, which has a material adverse effect on the Certificateholders
of any Series then outstanding (without regard to the amount of any
Enhancement) and which continues unremedied for a period of 60 days after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Trustee, or to the
Servicer and the Trustee by the Holders of Investor Certificates evidencing
Undivided Interests aggregating more than 50% of the Investor Amount of any
Series adversely affected thereby, and which continues to materially adversely
affect the rights of the Investor Certificateholders of any Series then
outstanding (without regard to the amount of any Enhancement); or the Servicer
shall delegate its duties under this Agreement, except as permitted by Section
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,
and which has a material adverse effect on the rights of the Certificateholders
of any Series then outstanding (without regard to the amount of any
Enhancement) and which continues to be incorrect in any material respect and
which continues to affect materially and adversely the rights of the
Certificateholders of any Series then outstanding (without regard to the amount
of any Enhancement) for a period of 60 days after the date on which written
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notice of such failure, requiring the same to be remedied, shall have been
given to the Servicer by the Trustee, or to the Servicer and the Trustee by the
Holders of Investor Certificates evidencing Undivided Interests aggregating
more than 50% of the Investor Amount of any Series adversely affected thereby;
or
(d) the Servicer shall consent to the appointment of a conservator,
receiver or liquidator under any Debtor Relief Law proceedings of or relating
to the Servicer or of or relating to all or substantially all of 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 conservator or receiver
or liquidator in any Debtor Relief Law proceedings, or for 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 Debtor Relief Law, make an assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations generally;
then, so long as such Servicer Default shall not have been remedied, either the
Trustee or the Holders of Investor Certificates evidencing Undivided Interests
aggregating more than 50% of the Aggregate Investor Amount, by notice then
given in writing to the Servicer (and to the Trustee if given by the Investor
Certificateholders) (a "Termination Notice"), may terminate all of the rights
and obligations of the Servicer as Servicer under this Agreement and in and to
all Receivables and the proceeds thereof and appoint a new Servicer (a "Service
Transfer"). The rights and interests of the Transferor in the Transferor
Interest will not be affected by any Service Transfer.
The Transferor shall have the right to nominate to the Trustee a potential
Successor Servicer. The Trustee shall as promptly as possible appoint the
entity nominated by the Transferor if such entity meets the eligibility
criteria set out herein. If the Transferor does not nominate an entity to be
the Successor Servicer, the Trustee shall as promptly as possible appoint a
Successor Servicer, and if no Successor Servicer has been appointed by the
Trustee and has accepted such appointment by the time the Servicer ceases to
act as Servicer, all authority, power and obligations of the Servicer
under this Agreement will pass to, and be vested in, the Trustee. Prior to any
Service Transfer, the Trustee will seek to obtain bids from potential servicers
meeting the eligibility criteria set out herein, to serve as a Successor
Servicer for servicing compensation not in excess of the Servicing Fee. If the
Trustee is unable to obtain any bids from eligible entities and the Servicer
delivers an Officer's Certificate to the effect that it cannot in good faith
cure the related Servicer Default, then the Trustee will, under certain
circumstances, offer the Transferor the right to accept the reassignment of all
of the Receivables. The deposit amount of such a reassignment shall be equal
to the sum of the Aggregate Investor Amount (less the aggregate amounts held
in the Excess Funding Account and in any Principal Account with respect to any
Series) plus accrued and unpaid interest on the Certificates of all Series plus
certain amounts payable to Enhancement Providers, if applicable.
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The Trustee, upon giving or receiving a Termination Notice, shall
immediately notify the Rating Agencies and any Enhancement Provider of such
notice. After receipt by the Servicer of such Termination Notice, and on the
date that a Successor Servicer shall have been appointed by the Trustee
pursuant to Section 10.2, all authority and power of the Servicer under this
Agreement shall pass to and be vested in a Successor Servicer; and, without
limitation, the Trustee is hereby authorized and empowered (upon the failure of
the Servicer to cooperate) to execute and deliver, on behalf of the Servicer,
as attorney-in-fact or otherwise, all documents and other instruments upon the
failure of the Servicer to execute or deliver such documents or instruments,
and to do and accomplish all other acts or things necessary or appropriate to
effect the purposes of such Service Transfer. The Servicer agrees to take all
reasonable actions 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, without limitation, the transfer to
such Successor Servicer of all authority of the Servicer to service the
Receivables provided for under this Agreement, including, without limitation,
all authority over all Collections which shall on the date of transfer be held
by the Servicer for deposit, or which have been deposited by the Servicer, in
the Collection Account, or which shall thereafter be received with respect to
the Receivables, and in assisting the Successor Servicer and in enforcing all
rights to Recoveries. The Servicer shall promptly transfer its electronic
records relating to the Receivables to the Successor Servicer in such
electronic form as the Successor Servicer may reasonably request and shall
promptly transfer to the Successor Servicer all other records, correspondence
and documents necessary for the continued servicing of the Receivables in the
manner and at such times as the Successor Servicer shall reasonably request.
To the extent that compliance with this Section 10.1 shall require the Servicer
to disclose to the Successor Servicer information of any kind which the
Servicer reasonably deems to be confidential, the Successor Servicer shall be
required to enter into such customary licensing and confidentiality agreements
as the Servicer shall deem reasonably necessary to protect its interest.
Notwithstanding the foregoing, a delay in or failure of performance
referred to in Section 10.1(a) for a period of 10 Business Days after the
applicable grace period or under Section 10.1(b) or (c) 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 public enemy, acts of declared or undeclared war, public
disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire,
hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods,
power outages, communication system failures or outages or similar causes. The
preceding sentence shall not relieve the Servicer from using its best
reasonable efforts to perform its obligations in a timely manner in accordance
with the terms of this Agreement or any Supplement and the Servicer shall
provide the Trustee, any Enhancement Provider, the Transferor and the
Certificateholders with an Officer's Certificate giving prompt notice of such
failure or delay by it, together with a description of the cause of such
failure or delay
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and its efforts so to perform its obligations. The Servicer shall immediately
notify a Responsible Officer of the Trustee in writing of any Servicer Default.
SECTION 10.2 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the receipt by the Servicer of a Termination Notice
pursuant to Section 10.1, the Servicer shall continue to perform all servicing
functions under this Agreement until the date specified in the Termination
Notice or otherwise specified by the Trustee in writing or, if no such date is
specified in such Termination Notice, or otherwise specified by the Trustee in
writing, until a date mutually agreed upon by the Servicer and Trustee (not to
exceed 90 days from the date of delivery of such notice). The Trustee shall as
promptly as possible after the giving of a Termination Notice appoint a
successor servicer (the "Successor Servicer"), with the consent of any
Enhancement Provider, and such Successor Servicer shall accept its appointment
by a written assumption in a form acceptable to the Trustee, the Transferor and
any Enhancement Provider. The Transferor shall have the right to nominate to
the Trustee the name of a potential successor servicer which nominee shall be
selected by the Trustee as the Successor Servicer, subject to the consent of
any Enhancement Provider. The Trustee may obtain bids from any potential
successor servicer. If the Trustee is unable to obtain any bids from any
potential successor servicer and the Servicer delivers an Officer's Certificate
to the effect that it cannot in good faith cure the Servicer Default which gave
rise to a transfer of servicing, then the Trustee shall notify each Enhancement
Provider that a sale of the Receivables is proposed and shall provide each
Enhancement Provider an opportunity to bid on the Receivables and shall offer
the Transferor the right of first refusal to purchase the Receivables on terms
equivalent to the best purchase offer as determined by the Trustee, but in no
event less than an amount equal to the Aggregate Investor Amount (less the
aggregate amount held in the Excess Funding Account and any Principal Account
with respect to any Series) on the date of such purchase plus all accrued but
unpaid interest on the Certificates of all Series at the applicable Certificate
Rates through the end of the applicable interest accrual periods of such Series
plus any other unpaid amounts required to be paid pursuant to this Section 10.2
under any Supplement; provided, however, that, if the Transferor shall not have
a rating of P-3 or Baa3 or higher by Moody's and A-3 or BBB- or higher by
Standard & Poor's, no such reassignment shall occur unless the Transferor shall
deliver to the Trustee and the Rating Agencies an Opinion of Counsel reasonably
acceptable to the Trustee that such reassignment would not constitute a
fraudulent conveyance. In the event that a Successor Servicer has not been
appointed and has not accepted its appointment at the time when the Servicer
ceases to act as Servicer, the Trustee (as trustee hereunder) without further
action shall automatically be appointed the Successor Servicer.
Notwithstanding the above, the Trustee shall, if it is legally unable so to
act, petition a court of competent jurisdiction to appoint any established
financial institution having a net worth of not less than $50,000,000 and whose
regular business includes the servicing of consumer revolving credit card
receivables as the Successor Servicer hereunder. Notwithstanding anything to
the contrary in this Agreement, the entire amount of the reassignment deposit
amount shall be distributed to the Investor Certificateholders of the related
Series on the subsequent
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Distribution Date for such Series pursuant to Section 12.3 (except for amounts
payable to any Enhancement Provider under the applicable Enhancement Agreement,
which amounts shall be distributed to such Enhancement Provider.)
(b) Upon its appointment, the Successor Servicer shall be the successor
in all respects to the Servicer with respect to all 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; provided, however, that, the outgoing Servicer
shall not be relieved of any liability hereunder for its actions prior to the
transfer of servicing hereunder; provided further, that the Successor Trustee
shall not be liable for any acts or omissions of the Servicer or for any breach
by the Servicer of any of its representations and warranties contained herein
or in any Supplement or amendment., by Officer's Certificate delivered in
connection herewith, and provided further, that, (i) the outgoing Servicer
shall not indemnify the Trust or the Trustee under Section 8.4 for acts,
omissions or alleged acts or omissions, including any involving negligence or
bad faith by a Successor Servicer and (ii) the outgoing Servicer shall not pay
or reimburse the Trustee pursuant to Section 11.5 for any expense, disbursement
or advance of the Trustee related to or arising as a result of the negligence
or bad faith of the Successor Servicer. Any Successor Servicer, by its
acceptance of its appointment, will automatically agree to be bound by the
terms and provisions of any applicable Enhancement agreement.
(c) In connection with such appointment and assumption, the Trustee shall
be entitled to such compensation, or may make such arrangements for the
compensation of the Successor Servicer out of Collections, as it and such
Successor Servicer shall agree; provided, however, that no such compensation
shall be in excess of the Monthly Servicing Fee permitted to the Servicer
pursuant to Section 3.2.
(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 on the Receivables. The
Successor Servicer shall transfer its electronic records relating to the
Receivables to the Transferor in such electronic form as the Transferor may
reasonably request and shall transfer all other records, correspondence and
documents to the Transferor in the manner and at such times as the Transferor
shall reasonably request. To the extent that compliance with this Section 10.2
shall require the Successor Servicer to disclose to the Transferor information
of any kind which the Successor Servicer deems to be confidential, the
Transferor shall be
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required to enter into such customary licensing and confidentiality agreements
as the Successor Servicer shall deem necessary to protect its interests.
SECTION 10.3 NOTIFICATION TO CERTIFICATEHOLDERS. Upon the occurrence of
any Servicer Default, the Servicer shall give prompt written notice thereof to
the Trustee, the Rating Agencies and any Enhancement Provider, and the Trustee
shall give notice to the Investor Certificateholders at their respective
addresses appearing in the Certificate Register. Upon any termination or
appointment of a Successor Servicer pursuant to this Article X, the Trustee
shall give prompt written notice thereof to Investor Certificateholders at
their respective addresses appearing in the Certificate Register, the Rating
Agencies and to any Enhancement Provider. Notice to Holders of Bearer
Certificates, if any, shall be given by publication in the manner described in
Section 13.5 of the Agreement.
SECTION 10.4 WAIVER OF PAST DEFAULTS. The Holders of Investor
Certificates evidencing Undivided Interests aggregating more than 66-2/3% of
the Investor Amount of any Series then outstanding affected by any default by
the Servicer or the Transferor may, on behalf of all Holders of Certificates of
such affected Series, waive any default by the Servicer or the Transferor in
the performance of their respective obligations hereunder and its consequences,
except a default in the failure to make any required deposits or payments of
interest or principal with respect to any Series of Certificates. 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.
ARTICLE XI
THE TRUSTEE
SECTION 11.1 DUTIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of a Servicer Default and after
the curing or waiving of all Servicer Defaults which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If a Servicer Default has occurred (which has not
been cured or waived), the Trustee (as Trustee and not as Successor Servicer)
shall exercise such of the rights and powers vested in it by this Agreement or
any Supplement, and use the same degree of care and skill in their exercise, as
a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which
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are specifically required to be furnished pursuant to any provision of this
Agreement or any Supplement, shall examine them to determine whether they
conform as to form to the requirements of this Agreement or any Supplement, but
shall not be required to verify the accuracy of any information, calculations
or conclusions stated therein.
(c) Subject to Section 11.1(a), no provision of this Agreement or any
Supplement shall be construed to relieve the Trustee from liability for its own
negligent action, its own bad faith, its own negligent failure to act or its
own willful misconduct; provided, however, 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 personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of the Holders of Investor
Certificates evidencing Undivided Interests aggregating more than
50% of the Investor Amount of any Series adversely affected
thereby 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 or any Supplement;
(iii) the Trustee shall not be charged with knowledge of any
failure by the Servicer (other than the Trustee, in its capacity as
Successor Servicer) to comply with the obligations of the Servicer
referred to in clauses (a), (b) and (c) of Section 10.1 unless a
Responsible Officer of the Trustee obtains actual knowledge of such
failure (it being understood that knowledge of the Servicer, in its
capacity as agent for the Trustee, is not attributable to the Trustee)
or the Trustee receives written notice of such failure from the
Servicer, any Holders of Investor Certificates evidencing Undivided
Interests aggregating more than 50% of the Investor Amount of any
Series adversely affected thereby or any Enhancement Provider; and
(iv) in making a determination of any material and adverse
effect upon Certificateholders or the Investor Certificates, the
Trustee may, as to matters of law, rely exclusively upon an
Opinion of Counsel.
(d) The Trustee (in its capacity as such) shall not be required to expend
or risk its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder, or in exercise of any of its rights or powers,
if there is reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it, and none of the provisions contained in this Agreement or any Supplement
shall in any event require the Trustee to perform, or be
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responsible for the manner of performance of, any of the obligations of the
Servicer or the Successor Servicer under this Agreement or any Supplement
except during such time, if any, as the Trustee shall be the Successor Servicer
in accordance with the terms of this Agreement or any Supplement.
(e) Except for actions expressly authorized by this Agreement or any
Supplement, the Trustee shall take no action 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 specifically provided in this Agreement, the Trustee shall
have no power to vary the corpus of the Trust.
(g) In the event that the Paying Agent or the Transfer Agent and
Registrar shall not be the Trustee and 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 a Responsible
Officer of the Trustee having written notice or actual knowledge thereof to
perform such obligation, duty or agreement in the manner so required.
(h) Any action, suit or proceeding brought in respect of one or more
particular Series shall have no effect on the Trustee's rights, duties and
obligations hereunder with respect to any one or more Series not the subject of
such action, suit or proceeding.
(i) The Trustee shall, upon the reasonable request of the Transferor,
enter into any intercreditor agreement relating to the assets of the
Transferor; provided however, that the Trustee shall have received an Officer's
Certificate from the Transferor stating that the Transferor does not believe
that any such intercreditor agreement will materially and adversely affect any
outstanding Investor Certificates of any Series, and the Trustee shall have
received a reliance letter entitling it to rely upon any Opinions of Counsel to
the Transferor delivered in connection with such intercreditor agreement.
SECTION 11.2 CERTAIN MATTERS AFFECTING THE TRUSTEE. Except as otherwise
provided in Section 11.1:
(a) the Trustee may rely on and shall be protected in acting on, or in
refraining from acting in accord with, any resolution, Officer's Certificate,
Opinion of Counsel, certificate of independent public accountants or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document, including, without
limitation, any request or instruction by the Servicer or the Transferor to
make any deposit or payment or any draw on any Enhancement or to transfer any
Receivables or Accounts, prima facie properly executed and submitted to it
pursuant to this Agreement or any Supplement by the proper party or parties;
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(b) the Trustee may consult with counsel as to matters of law and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel as to
any actions required to be taken or withheld hereunder;
(c) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement or any Supplement, or to
institute, conduct or defend any litigation hereunder or in relation hereto, at
the request, order or direction of any of the Certificateholders or Certificate
Owners or any Enhancement Provider, pursuant to the provisions of this
Agreement or any Supplement or any Enhancement, unless such Certificateholders
or Certificate Owners or such Enhancement Provider shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing contained herein
shall, however, relieve the Trustee (as Trustee but not as Successor Servicer)
of the obligations, upon the occurrence of any Servicer Default (which has not
been cured or waived), to exercise such of the rights and powers vested in it
by this Agreement or any Supplement, and to use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs;
(d) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement or any
Supplement;
(e) except as may be required by Sections 11.1(a) or 11.1(b), the Trustee
shall not be bound to make any investigation into the facts of matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, except to
the extent specifically requested in writing so to do by Holders of Investor
Certificates evidencing Undivided Interests aggregating more than 50% of the
Investor Amount of any Series which could be adversely affected if the Trustee
does not perform such acts and the Trustee is reasonably indemnified therefor;
(f) the Trustee (in its capacity as such) may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian, and the Trustee (in its capacity as
such) shall not be responsible for any misconduct or negligence on the part of
any such agent, attorney or custodian appointed with due care by it hereunder;
(g) except as may be required by Sections 11.1(a) or 11.1(b) hereof, 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 or Servicer with their representations, warranties or covenants
or for any other purpose;
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(h) the permissive right of the Trustee to take actions enumerated in
this Agreement or any Supplement shall in no event be construed as a duty;
(i) whenever in the administration of this Agreement or any Supplement,
the Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officer's Certificate;
(j) except with respect to any Enhancement Investor Amount, the Trustee
shall not be deemed to be a fiduciary for the Enhancement Provider, if any, in
its capacity as such, and the Trustee's sole responsibility with respect to the
Enhancement Provider in its capacity as such shall be to perform those duties
with respect to the Enhancement Provider as are specifically set forth in the
related Enhancement agreement and no implied covenants shall be read into this
Agreement against the Trustee with respect to the Enhancement Provider;
(k) the Trustee shall have no duty (i) to see to any recording, filing or
depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest in
the Receivables or the Accounts, or to see to the maintenance of any such
recording, filing or depositing or any rerecording, refiling or redepositing of
any thereof or (ii) to confirm or verify the contents of any reports or
certificates of the Servicer delivered to the Trustee pursuant to this
Agreement believed by the Trustee to be genuine and to have been signed or
presented by the proper party or parties; and
(l) in the event the entity serving as Trustee hereunder is also serving
as Paying Agent or Transfer Agent and Registrar hereunder, the rights, powers,
immunities and indemnities afforded to the Trustee hereunder shall also be
afforded to such Paying Agent and 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 certificates of authentication on the
Certificates). Except as set forth in Section 2.2(a) or Section 11.15, the
Trustee makes no representations as to (i) the validity or sufficiency of this
Agreement or any Supplement or of the Certificates (other than the certificates
of authentication on the Certificates), (ii) the existence or validity of any
Receivable, (iii) the validity of any transfer or assignment of any Receivable
to the Trust, (iv) the validity of any grant of a security interest to the
Trust in any Receivable, (v) the perfection of any security interest (whether
as of the date hereof or at any future time) in any Receivable, (vi) the
maintenance of or the taking of any action to maintain such perfection, (vii)
the receipt by the Trustee or the Servicer of any Receivable, (viii) the
performance or enforcement of any Receivable, (ix) the compliance by the
Transferor or the Servicer with any covenant or representation, (x) the breach
by
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the Transferor or the Servicer of any warranty or representation made hereunder
or in any related document or the accuracy of any such warranty or
representation or (xi) any action taken by the Servicer in the name of the
Trustee. 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 or other accounts now or hereafter established to effectuate the
transactions contemplated herein and in accordance with the terms hereof.
SECTION 11.4 TRUSTEE MAY OWN CERTIFICATES. The Trustee in its individual
or any other capacity may become the owner or pledgee of Investor Certificates
with the same rights as it would have if it were not the Trustee.
SECTION 11.5 THE SERVICER TO PAY TRUSTEE'S FEES AND EXPENSES. The
Servicer covenants and agrees to pay to the Trustee from time to time out of
its own funds, 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 or pursuant to any
Supplement of the Trustee, and, subject to Section 8.4, the Servicer will pay
or reimburse the Trustee (without reimbursement from the Collection Account or
otherwise) upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the
provisions of this Agreement or any Supplement (including the reasonable fees
and expenses of its agents and counsel) except any such expense, disbursement
or advance as may arise from its negligence or bad faith and except as provided
in the following sentence. If the Trustee is appointed Successor Servicer
pursuant to Section 10.2, the provisions of this Section 11.5 shall not apply
to expenses, disbursements and advances made or incurred by the Trustee in its
capacity as Successor Servicer.
The obligations of the Servicer and the Transferor under this Section
11.5, Section 7.4 and Section 8.4 shall survive the termination of the Trust
and the resignation or removal of the Trustee or the Servicer.
SECTION 11.6 ELIGIBILITY REQUIREMENTS FOR TRUSTEE. The Trustee hereunder
shall at all times be a national banking association, a banking corporation or
trust company organized and doing business under the laws of the United States
of America or any state thereof authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, a rating as to its long-term unsecured debt obligations of at
least Baa3 by Moody's (if Moody's shall then be a Rating Agency) and BBB- by
Standard & Poor's (if Standard & Poor's shall then be a Rating Agency) and a
rating as to its short-term deposits or long-term unsecured debt obligations
that satisfies the rating requirement of any other applicable Rating Agency and
subject to supervision or examination by Federal or state authority. If such
banking corporation or national banking association publishes reports of
condition at least
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annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purpose of this Section 11.6, the combined
capital and surplus of such corporation or national banking association 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 11.6,
the Trustee shall resign immediately in the manner and with the effect
specified in Section 11.7.
SECTION 11.7 RESIGNATION OR REMOVAL OF TRUSTEE.
(a) The Trustee may at any time resign as Trustee 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 such 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, or becomes insolvent, and shall fail to
resign after written request therefor by the Transferor, or if at any time the
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver or conservator 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 Transferor may, but shall not be required to, remove
the Trustee and promptly appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee.
(c) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 11.7 shall
not become effective until acceptance of appointment by the successor trustee
as provided in Section 11.8. Any liability of the Trustee arising hereunder
shall survive such appointment of a successor trustee.
SECTION 11.8 SUCCESSOR TRUSTEE.
(a) Any successor trustee appointed as provided in Section 11.7 shall
execute, acknowledge and deliver to the Transferor 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 and under any Supplement, with like effect as if
originally named as Trustee herein. The predecessor Trustee shall,
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upon payment of its reasonable fees and expenses, deliver to the successor
trustee all documents 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 11.8 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 11.6 hereof and shall be an
Eligible Servicer, and, the applicable Rating Agencies shall have consented to
such appointment.
(c) Upon acceptance of appointment by a successor trustee as provided in
this Section 11.8, such successor trustee shall mail notice of such succession
hereunder to each Rating Agency and all Certificateholders (other than Holders
of Bearer Certificates) at their addresses as shown in the Certificate
Register. Notice to Holders of Bearer Certificates shall be given by
publication in the manner described in Section 13.5 of the Agreement.
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 all or substantially all
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such Person shall be eligible under the provisions
of Section 11.6 and shall be an Eligible Servicer, 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 provision of this Agreement or any
Supplement, at any time, for the purpose of meeting any legal requirements 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 separate trustee, of all
or any part of the Trust, and to vest in such Person, in such capacity and for
the benefit of the Certificateholders, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section 11.10, such
powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
11.6 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 11.8.
(b) Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
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(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the
Trustee joining in such act), except to the extent that under any
laws of any jurisdiction in which any particular act or acts are
to be performed (whether as Trustee hereunder or as successor to
the Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of
title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder
appointed with due care; and
(iii) the Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article XI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement or any Supplement, specifically including every
provision of this Agreement or any Supplement 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 appoint the
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect to this
Agreement or any Supplement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 11.11 TAX RETURNS AND COMPLIANCE.
(a) In the event the Trust shall be required to file tax returns, the
Servicer shall prepare or cause to be prepared and is authorized hereunder to
sign any tax returns
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required to be filed by the Trust and, to the extent possible, shall file such
returns at least five (5) days before such returns are due to be filed. The
Servicer shall prepare or shall cause to be prepared all tax information
required by law to be distributed to Certificateholders and Certificate Owners
and shall deliver such information to the Paying Agent at least five (5) days
prior to the date it is required by law to be distributed to Certificateholders
and Certificate Owners. The Trustee shall, upon request, furnish the Servicer
with all such information known to the Trustee as may be reasonably required in
connection with the preparation of such tax returns and shall, upon request,
execute such tax returns. In no event shall the Trustee, the Paying Agent or
the Servicer be liable for any liabilities, costs or expenses of the Trust, the
Investor Certificateholders or the Certificate Owners arising under any tax
law, including without limitation, Federal, state, local or foreign income or
excise taxes or any other tax imposed on or measured by income (or any interest
or penalty with respect thereto or arising from a failure to comply therewith),
except to the extent that such tax is imposed as a result of a violation by
such Person of the provisions of this Agreement or any Supplement.
(b) The Trustee and each Paying Agent shall comply with all Federal
withholding requirements respecting payments to Investor Certificateholders or
persons receiving funds from the Trust. In the event the Trustee or Paying
Agent does withhold any amount from interest, principal, or other payments
pursuant to Federal withholding requirements, the Trustee or Paying Agent shall
indicate the amount withheld in writing with any payment to the person
otherwise entitled to such amount.
SECTION 11.12 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
CERTIFICATES. All rights of action and claims under this Agreement or any
Supplement 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. If a Servicer Default shall occur
and be continuing, the Trustee, in its discretion, may, subject to the
provisions of Section 10.1, proceed to protect and enforce its rights and the
rights of the Certificateholders under this Agreement or any Supplement by such
suit, action or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement
or any Supplement or in aid of the execution of any power granted in this
Agreement or any Supplement or for the enforcement of any other legal,
equitable or other remedy as the Trustee, being advised by counsel, shall deem
effectual to protect and enforce any of the rights of the Trustee or the
Certificateholders.
SECTION 11.14 RIGHTS OF CERTIFICATEHOLDERS TO DIRECT TRUSTEE. Holders of
Investor Certificates evidencing Undivided Interests aggregating more than 50%
of the
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Aggregate Investor Amount of all Series affected by the conduct of any
proceeding or the exercise of any right conferred on the Trustee 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, as
advised by counsel, determines that the action so directed may not lawfully be
taken, or if the Trustee in good faith shall, by a Responsible Officer or
Responsible Officers of the Trustee, determines that the proceedings so
directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Certificateholders of such Series not parties to
such direction or to the rights of Certificateholders of other Series; and
provided further that nothing in this Agreement or any Supplement shall impair
the right of the Trustee to take any action deemed proper by the Trustee and
which is not inconsistent with such direction.
SECTION 11.15 REPRESENTATIONS AND WARRANTIES OF TRUSTEE. The Trustee
represents and warrants that:
(i) The Trustee is a national banking association,
organized, existing and in good standing under the federal banking
laws of the United States and is, and will remain for the term of
this Agreement, duly qualified and in good standing in the States
of Minnesota and New York;
(ii) The Trustee has full power, authority and right to
execute, deliver and perform this Agreement and any Supplement,
and has taken all necessary action to authorize the execution,
delivery and performance by it of this Agreement and any
Supplement; and
(iii) This Agreement and any Supplement has been, or will be
duly executed and delivered by the Trustee, and assuming due
execution and delivery by the other parties thereto constitutes a
legal, valid and binding obligation of the Trustee enforceable
against the Trustee in accordance with its terms.
SECTION 11.16 MAINTENANCE OF OFFICE OR AGENCY. For so long as any
Investor Certificates are held by Certificate Owners in Definitive
Certificates, the Trustee will maintain at its expense in the Borough of
Manhattan, The City of New York, an office or offices or agency or agencies
where notices and demands to or upon the Trustee in respect of the Certificates
and this Agreement may be served. The Trustee initially appoints The
Depository Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Norwest New York City as its agent for such purposes in New York. The Trustee
will give prompt written notice (or in the case of Holders of Bearer
Certificates, notice by publication in the manner described in Section 13.5 of
the Agreement) to the Servicer and to Certificateholders of any change in the
location of such Corporate Trust Office, or such other office or agency.
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ARTICLE XII
TERMINATION
SECTION 12.1 TERMINATION OF TRUST.
(a) The respective obligations and responsibilities of the
Transferor, the Servicer, the Paying Agent and the Trustee and their agents
hereunder created hereby (other than the obligation of the Trustee to make
payments to Certificateholders as hereafter set forth) shall terminate, except
with respect to the duties described in Sections 2.4(c), 7.4, 8.4, 11.5 and
12.3(b), upon the earliest of (i) the day designated by the Transferor after
the Distribution Date following the date on which funds shall have been
deposited in the Collection Account or applicable Principal Account sufficient
to pay the Aggregate Investor Amount and any Enhancement Investor Amount plus
applicable Certificate Interest accrued through such Distribution Date, and
(ii) the day on which the final payment of principal is made to the
Certificateholders, and all right, title and interest to the Receivables and
other funds of the Trust (other than funds held in the Principal Account) will
be transferred to the holder of the Exchangeable Transferor Certificate (the
"Final Termination Date"); provided, however, in no event shall the Trust
created by this Agreement continue beyond the expiration of 21 years from the
death of the last survivor of the descendants of Xxxxxx Xxxxxxx Xxxxxx Xxxx,
former President of the United States of America, living on the date of this
Agreement. The Servicer shall promptly notify the Trustee of any prospective
termination pursuant to this Section 12.1.
(b) If on the last Distribution Date in the month immediately
preceding the month in which the Final Termination Date occurs (after giving
effect to all transfers, withdrawals, deposits and drawings to occur on such
date and the payment of principal on any Series of Certificates to be made on
such Distribution Date pursuant to Article IV), the Investor Amount or any
Enhancement Investor Amount of any Series would be greater than zero, the
Servicer shall sell within 30 days after such Distribution Date all of the
Receivables in a commercially reasonable manner and on commercially reasonable
terms which shall include the solicitation of competitive bids and shall
consummate the sale with the highest bidder for the Receivables. The
Transferor or any of its Affiliates shall be permitted to bid for the
Receivables. In addition, the Transferor or any Affiliate shall have the right
to match any bid by a third Person and be granted the right to purchase the
Receivables at such matched bid price. The proceeds of any such sale shall be
treated as Collections on the Receivables and shall be allocated in accordance
with Article IV; provided, however, that the Trustee shall determine
conclusively the amount of such proceeds which are allocable to Finance Charge
Receivables and the amount of such proceeds which are allocable to Principal
Receivables. Prior to such sale of Receivables, the Servicer shall continue to
collect Collections on the Receivables and allocate such payments in accordance
with the provisions of Article IV.
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SECTION 12.2 OPTIONAL PURCHASE; FINAL TERMINATION DATE OF INVESTOR
CERTIFICATES OF ANY SERIES.
(a) If provided in any Supplement with respect to a Series of Investor
Certificates (which provisions must refer specifically to this Section 12.2),
on any Distribution Date, the Transferor may, but shall not be obligated to,
purchase such Series by depositing into the Collection Account, prior to such
Distribution Date, an amount equal to the Investor Amount thereof plus interest
accrued and unpaid thereon at the applicable Certificate Rate through the
interest accrual period preceding such Distribution Date plus any other unpaid
amounts required to be paid pursuant to this Section 12.2 under any Supplement;
provided, however that, if the Transferor shall not have a rating of P-3 or
Baa3 or higher by Moody's, and A-3 or BBB- or higher by Standard & Poor's, no
such purchase of any Series of Investor Certificates shall occur unless the
Transferor shall deliver to the Trustee and the Rating Agencies an Opinion of
Counsel reasonably acceptable to the Trustee that such purchase of any Series
of Investor Certificates would not constitute a fraudulent conveyance. Nothing
herein limits the right of the Transferor or any Affiliate to purchase Investor
Certificates on the open market and submit them to the Trustee for
cancellation.
(b) The amount deposited pursuant to Section 12.2(a) shall be paid to the
Investor Certificateholders of the related Series pursuant to Article IV on the
Distribution Date following the date of such deposit. All Certificates of a
Series which are purchased by the Transferor pursuant to Section 12.2(a) shall
be delivered by the Transferor upon such purchase to, and be canceled by, the
Transfer Agent and Registrar and be disposed of in a manner satisfactory to the
Trustee and the Transferor.
(c) All principal or interest with respect to any Series of Investor
Certificates shall be due and payable no later than the Stated Series
Termination Date with respect to such Series. Unless otherwise provided in a
Supplement, in the event that the Investor Amount or any Enhancement Investor
Amount of any Series of Certificates is greater than zero on its Stated Series
Termination Date (after giving effect to all transfers, withdrawals, deposits
and drawings to occur on such date and the payment of principal to be made on
such Series on such date), the Trustee will sell or cause to be sold, and pay
the proceeds to all Certificateholders of such Series pro rata in final payment
of all principal of and accrued interest on such Series of Certificates, an
amount of Receivables or interests in Receivables up to 110% of the Adjusted
Investor Amount and any Enhancement Investor Amount of such Series at the close
of business on such date (but not more than an amount of Receivables equal to
the sum of (1) the product of (A) the Transferor Percentage, (B) the Aggregate
Principal Receivables and (C) a fraction the numerator of which is the related
Investor Percentage with respect to Finance Charge Receivables and the
denominator of which is the sum of all Investor Percentages with respect to
Finance Charge Receivables of all Series outstanding and (2) the Investor
Amount and any Enhancement Investor Amount of such Series). The Trustee shall
conduct the sale of Receivables in a commercially reasonable manner and on
commercially reasonable terms which shall include the solicitation of
competitive bids and shall consummate the sale with
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the highest bidder for the Receivables. The Transferor or any of its
Affiliates shall be permitted to bid for the Receivables. In addition, the
Transferor or any Affiliate shall have the right to match any bid by a third
Person and be granted the right to purchase the Receivables at such matched bid
price. Any proceeds of such sale in excess of the outstanding principal and
interest due to Certificateholders of the applicable Series (which shall be
paid to such Holders) shall be paid to the Holder of the Exchangeable
Transferor Certificate, unless the applicable Supplement shall provide
otherwise. Upon such Stated Series Termination Date with respect to the
applicable Series of Certificates, final payment of all amounts allocable to
any Investor Certificates of such Series shall be made in the manner provided
in Section 12.3.
SECTION 12.3 FINAL PAYMENT WITH RESPECT TO ANY SERIES.
(a) Written notice of any termination, specifying the Distribution Date
upon which the Investor Certificateholders of any Series may surrender their
Certificates for payment of the final distribution with respect to such Series
and cancellation, shall be given (subject to at least two (2) Business Days'
prior notice from the Servicer to the Trustee) by the Trustee to Investor
Certificateholders of such Series mailed not later than the fifth day of the
month of such final distribution (or in the case of the Holders of Bearer
Certificates by the publication by the Trustee of a notice at least once in a
newspaper of general circulation in Luxembourg (which newspaper shall be
printed in the English language and customarily published on each business day
in Luxembourg) and, so long as the Investor Certificates are listed on the
Luxembourg Stock Exchange or other stock exchange and such exchange so
requires, in Luxembourg or the location required by such other stock exchange)
specifying (a) the Distribution Date (which shall be the Distribution Date in
the month in which the deposit is made pursuant to Section 2.4, 9.2, 10.2 or
12.2(a) or such other section as may be specified in the related Supplement)
upon which final payment of such Investor Certificates will be made upon
presentation and surrender of such Investor Certificates at the office or
offices therein designated, (which, in the case of Bearer Certificates, shall
be outside the United States), (b) the amount of any such final payment and (c)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Investor Certificates at the office or offices therein specified. The
Servicer's notice to the Trustee in accordance with the preceding sentence
shall be accompanied by an Officer's Certificate setting forth the information
specified in the applicable Supplement covering the period during the then
current calendar year through the date of such notice and setting forth the
date of such final distribution. The Trustee shall give such notice to the
Transfer Agent and Registrar and the Paying Agent at the time such notice is
given to such Investor Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant to Section
12.1(a) or the occurrence of the Stated Series Termination Date with respect to
any Series, all funds then on deposit in the Collection Account shall continue
to be held in trust for the benefit of the Certificateholders and the Paying
Agent or the Trustee shall pay such funds to the Certificateholders upon
surrender of their Certificates (which surrenders and
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payments, in the case of Bearer Certificates, shall be made only outside the
United States). In the event that all of the Investor Certificateholders of
such Series shall not surrender their Certificates for cancellation within six
months after the date specified in the above-mentioned notice, the Trustee
shall give a second written notice (or in the case of Bearer Certificates,
publication notice) to the remaining Investor Certificateholders of such Series
upon receipt of the appropriate records from the Transfer Agent and Registrar
to surrender their Certificates for cancellation and receive the final
distribution with respect thereto. If within one and one-half years after the
second notice all the Investor Certificates of such Series shall not have been
surrendered for cancellation, the Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining Investor
Certificateholders of such Series concerning surrender of their Certificates,
and the cost thereof shall be paid out of the funds in the Collection Account
held for the benefit of such Investor Certificateholders. The Trustee shall
pay or cause to be paid to the Transferor upon request all monies held for the
payment of principal or interest which remain unclaimed after two years.
(c) All Certificates surrendered for payment of the final distribution
with respect to such Certificates and cancellation shall be mutilated and
physically canceled by the Transfer Agent and Registrar and be disposed of in a
manner satisfactory to the Trustee and the Transferor.
SECTION 12.4 TRANSFEROR'S TERMINATION RIGHTS. Upon the termination of the
Trust pursuant to Section 12.1 and the surrender of the Exchangeable Transferor
Certificate, the Trustee shall return to the Transferor (without recourse,
representation or warranty) all right, title and interest of the Trust in the
Receivables, whether then existing or thereafter created, and all monies due or
to become due with respect thereto, all proceeds thereof except for amounts
held by the Paying Agent pursuant to Section 12.3(b). The Trustee shall
execute and deliver such instruments of transfer and assignment, in each case
without recourse, and shall file and record UCC termination statements in all
Relevant UCC States as shall be reasonably requested by the Transferor to vest
in itself all right, title and interest which the Trust had in the applicable
Receivables.
SECTION 12.5 DEFEASANCE. Notwithstanding anything to the contrary in this
Agreement:
(a) The Transferor may at the Transferor's option be discharged from its
obligations hereunder with respect to any Series or all outstanding Series (the
"Defeased Series") on the date the applicable conditions set forth in
subsection 12.5(c) are satisfied (a "Defeasance"); provided, however, that the
following rights, obligations, powers, duties and immunities shall survive with
respect to the Defeased Series until otherwise terminated or discharged
hereunder: (i) the rights of the Holders of Investor Certificates of the
Defeased Series to receive, solely from the trust fund provided for in Section
12.5(c), payments in respect of principal of and interest on such Investor
Certificates when such payments are due; (ii) the right of any Enhancement
Provider to the repayment of any
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amount, including interest thereon, due to it under the applicable Enhancement
agreement and Supplement; (iii) the Transferor's obligations with respect to
such Certificates under Sections 6.3 and 6.4; (iv) the rights (including the
right to payment of its fees and expenses), powers, trusts, duties, and
immunities of the Trustee, the Paying Agent and the Transfer Agent and
Registrar hereunder; and (v) this Section 12.5.
(b) Subject to Section 12.5(c), the Transferor at its option may
cause Collections allocated to the Defeased Series and available to purchase
Principal Receivables to be applied to purchase Permitted Investments rather
than Principal Receivables.
(c) The following shall be the conditions to Defeasance under
Section 12.5(a):
(i) The Transferor irrevocably shall have deposited or
caused to be deposited with the Trustee (such deposit to be
made from other than the Transferor's funds), under the terms of
an irrevocable trust agreement in form and substance satisfactory
to the Trustee, as trust funds in trust for making the payments
described below, (A) U.S. Dollars in an amount, or (B) Permitted
Investments which through the scheduled payment of principal and
interest in respect thereof will provide, not later than the due
date of payment thereon, money in an amount, or (C) a combination
thereof, in each case sufficient to pay and discharge, and which
shall be applied by the Trustee to pay and discharge, all
remaining scheduled interest and principal payments on all
outstanding Investor Certificates of the Defeased Series on the
dates scheduled for such payments in this Agreement and the
applicable Supplements and all amounts owing to the Enhancement
Providers with respect to the Defeased Series;
(ii) prior to its exercise of its right pursuant to this
Section 12.5 with respect to a Defeased Series to substitute money
or Permitted Investments for Receivables, the Transferor shall
have delivered to the Trustee an Opinion of Counsel to the effect
that such deposit and termination of obligations will not have any
material adverse impact on the Federal income tax characterization
of any outstanding Series of Investor Certificates that have been
the subject of a previous opinion of tax counsel or result in the
Trust being taxable as an association for Federal or applicable
state income tax purposes and an Opinion of Counsel to the effect
that such deposit and termination of obligations will not result
in the Trust being required to register as an "investment company"
within the meaning of the 1940 Act;
(iii) the Transferor shall have delivered to the Trustee and
any Enhancement Provider an Officer's Certificate of the
Transferor stating
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the Transferor reasonably believes that such deposit and
termination of obligations will not, based on the facts known to
such officer at the time of such certification, then cause a Pay
Out Event with respect to any Series or any event that, with the
giving of notice or the lapse of time, would result in the
occurrence of a Pay Out Event with respect to any Series; and
(iv) the Rating Agency Condition shall have been satisfied.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 AMENDMENT.
(a) This Agreement and any Supplement may be amended from time to time by
the Servicer, the Transferor and the Trustee, without the consent of any of the
Investor Certificateholders, to cure any ambiguity, to revise certain exhibits
and schedules hereto, to correct or supplement any provisions herein which may
be inconsistent with any other provisions herein, to add other identifying code
numbers or identifying characteristics to the definition of Account or to add
any other provisions with respect to matters or questions raised under this
Agreement which shall not be inconsistent with the provisions of this
Agreement, including any matters arising under Section 2.5(d) necessary to
effect the conveyance contemplated thereunder and as otherwise permitted
herein; provided, however, that such action shall not adversely affect in any
material respect the interests of any of the Investor Certificateholders.
Additionally, this Agreement and any Supplement may be amended from time to
time by the Servicer, the Transferor and the Trustee, without the consent of
any of the Certificateholders, to add to, change or eliminate any of the
provisions of this Agreement to (i) enable Bearer Certificates to be issued in
conformity with the Bearer Rules, to provide that Bearer Certificates may be
registrable as to principal, to change or eliminate any restrictions on the
payment of principal of, premium, if any, or any interest on Bearer
Certificates to comply with the Bearer Rules, to permit Bearer Certificates to
be issued in exchange for Registered Certificates (if then permitted by the
Bearer Rules), to permit Bearer Certificates to be issued in exchange for
Bearer Certificates of other authorized denominations or to permit the issuance
of Certificates in uncertificated form, provided any such action shall not
adversely affect the interests of the Holders of Bearer Certificates of any
Series or any related Coupons in any material respect unless such amendment is
necessary to comply with the Bearer Rules, or any right of the Investor
Certificateholders hereunder, provided (ii) that (x) the Servicer shall have
furnished the Trustee with an Officer's Certificate to the effect that the
amendment will not materially and adversely affect the interests of any
Certificateholders thereunder, (y) such amendment will not cause the Trust to
be characterized as a corporation for Federal income tax purposes or otherwise
have a material adverse effect on the Federal income taxation of any Series and
(z) the Servicer shall have given each Rating Agency ten (10) Business Days'
prior written notice of such
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amendment and shall have received written confirmation from each Rating Agency
rating the affected Series that the Rating Agency Condition will be met. No such
amendment, however, may effect any of the amendments that require unanimous
Certificateholder consent as set forth in Section 13.1(b), or (i) reduce in any
manner the amount of, or delay the timing of, distributions which are required
to be made on any Investor Certificates of any Series, (ii) change the
definition of or the manner of calculating the interest of any
Certificateholder, (iii) alter the requirements for changing the percentage by
which the Minimum Transferor Amount is determined, (iv) change the manner in
which the Transferor Amount is determined, or (v) reduce the percentage required
in Section 13.1(b) to consent to such amendment. Notwithstanding the foregoing,
any amendments providing for the transfer of Receivables to or by, and the
generation of new Receivables by, the Bank as Seller, Transferor or Eligible
Originator, the appointment of the Bank as Servicer, and/or the assignment of
this Agreement including any Supplement to ____________ in connection with such
transfer and any amendments to this Agreement necessary to reflect such Bank and
any related special purpose, bankruptcy remote entity that is an Affiliate of
the Company and that is organized for purposes of purchasing Accounts and
Receivables from such Bank and serving as Transferor, will be deemed not to
materially and adversely affect the interests of the Certificateholders.
Prior to executing any amendment in accordance with this Section
13.1(a), the Trustee shall receive and shall be permitted to rely upon an
Opinion of Counsel to the effect that the conditions and requirements of this
Section 13.1(a) have been satisfied (without implying that such a rating
confirmation is required to be obtained, such Opinion of Counsel may rely as to
any rated Series solely on a rating confirmation from the Rating Agencies that
such amendment shall not cause a reduction or withdrawal of the rating of any
outstanding Series of Certificates). The Transferor shall deliver prior written
notice of any amendment pursuant to this Section 13.1(a) to each Rating Agency.
(b) This Agreement and any Supplement may also be amended from time to
time by the Servicer, the Transferor and the Trustee with the consent of the
Holders of Investor Certificates evidencing Undivided Interests aggregating not
less than 50% of the Investor Amount of all Series adversely affected, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or modifying in any manner the rights of the
Investor Certificateholders of any Series then issued and outstanding; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, distributions which are required to be made on any Investor
Certificate of such Series without the consent of all holders of the related
Investor Certificates, (ii) change the definition of or the manner of
calculating the Investor Amount, the Investor Percentage, the required amount
under any Enhancement or the Investor Default Amount of such Series without the
consent of the related Investor Certificateholders or (iii) reduce the aforesaid
percentage required to consent to any such amendment, without the consent of all
holders of the related Investor Certificates of all Series adversely affected
thereby. Any amendment pursuant to this Section 13.1(b) shall require that each
Rating Agency rating the affected Series confirm that such amendment
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will not cause a reduction or withdrawal of the rating of any outstanding Series
of Certificates.
(c) Each Certificateholder, by acquiring an interest in a Certificate,
is deemed to consent to any amendment to this Agreement or any Supplement
necessary for the Transferor to elect FASIT status for the Trust or any portion
thereof under the Code, provided that such election may not be made unless the
Transferor delivers to the Trustee an Opinion of Counsel to the effect that (i)
the issuance of FASIT regular interests will not adversely affect the tax
characterization as debt of Certificates of any outstanding Series or Class with
respect to which an Opinion of Counsel was delivered at the time of their
issuance that such Certificates would be characterized as debt, (ii) following
such issuance, the Trust will not be classified for Federal income tax purposes
as an association (or publicly traded partnership) taxable as a corporation and
(iii) such issuance will not cause or constitute an event in which gain or loss
would be recognized for federal income tax consequences by any
Certificateholder.
(d) Promptly after the execution of any such amendment other than an
amendment pursuant to Section 13.1(a), the Trustee shall furnish written
notification (or in the case of Bearer Certificates, publication notice in the
manner described in Section 13.5) of the substance of such amendment to each
Investor Certificateholder, and the Servicer shall furnish written notification
of the substance of such amendment to any related Enhancement Provider and each
Rating Agency.
(e) It shall not be necessary for the consent of Investor
Certificateholders under this Section 13.1 to approve the particular form of any
proposed amendment, but it shall be sufficient if such Certificateholders 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.
(f) Any Assignment or Reassignment regarding the addition to or removal
of Receivables from the Trust respectively, as provided in Sections 2.6 and 2.7,
respectively, executed in accordance with the provisions hereof shall not be
considered amendments to this Agreement, including, without limitation, for the
purpose of Sections 13.1(a), (b),(c) and (g).
(g) Prior to the execution of any amendment to this Agreement, the
Trustee shall be entitled to receive and rely upon an Opinion of Counsel
substantially in the form of Part Two of Exhibit G. The Trustee may, but shall
not be obligated to, enter into any such amendment which affects the Trustee's
own rights, duties or immunities under this Agreement or otherwise.
(h) Notwithstanding anything in this Section 13.1 to the contrary, any
Supplement may be amended on the terms and in accordance with the procedures
specified therein.
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SECTION 13.2 PROTECTION OF RIGHT, TITLE AND INTEREST TO TRUST.
(a) The Servicer shall cause this Agreement, any Supplement, all
amendments hereto and/or all financing statements, amendments and continuation
statements and any other necessary documents covering the right, title and
interest of the Trust in the property conveyed hereunder to be promptly
recorded, registered and filed, and at all times to be kept recorded, registered
and filed, all in such manner and in such places as may be required by law fully
to preserve and protect the right, title and interest of the Trustee hereunder
to all property comprising the Trust. The Servicer shall deliver to the Trustee
file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following such
recording, registration or filing. 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 Section
13.2(a).
(b) Within 30 days after the Transferor makes any change in its name,
identity or corporate structure which would make any financing statement,
amendment or continuation statement filed in accordance with paragraph (a) above
seriously misleading within the meaning of Section 9-402(7) of the UCC as in
effect in the Relevant UCC State, the 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 in the
Receivables and the proceeds thereof.
(c) The Transferor and the Servicer will give the Trustee prompt
written notice of any relocation of any office from which the Servicer 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, continuation statements or
amendments as may be necessary to continue the perfection of the Trust's
security interest in the Receivables and the proceeds thereof notwithstanding
any relocation of any office from which the Servicer services Receivables or
keeps records concerning the Receivables or of its principal executive office.
The Servicer will at all times maintain each office from which it services
Receivables, and the Transferor and the Servicer will at all times maintain
their respective principal executive offices, within the United States of
America.
(d) The Servicer will deliver to the Trustee and each Rating Agency:
(i) upon each date that any Additional Accounts are to be included in the
Accounts pursuant to Section 2.6 (other than Section 2.6(d)), an Opinion of
Counsel substantially in the form of Part One of Exhibit G; and (ii) on or
before June 30 of each year, beginning with June 30, 1998, an Opinion of
Counsel, dated as of a date within 90 days of such day, substantially in the
form of Exhibit H.
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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 provided herein) 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
Certificateholder previously shall have given notice to the Trustee, and unless
the Holders of Certificates evidencing Undivided Interests aggregating more than
662/3% of the Investor Amount of any Series which may be adversely affected but
for the institution of such suit, action or proceeding shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Certificateholders shall
have the right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Certificateholders of any other of the Certificates, or to
obtain or seek to obtain priority over or preference to any other such
Certificateholder, or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 13.3, each and every Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity. Each Certificate
Owner by its acquisition of a Book Entry Certificate shall be deemed to have
consented to the provisions of this Section 13.3.
SECTION 13.4 GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of New York, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
SECTION 13.5 NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if sent by
facsimile transmission to, sent by courier to or mailed by registered mail,
return receipt
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requested, to (a) in the case of the Transferor and the Servicer, 0000 Xxxxxxx
00 Xxxx, Xxxxxxx, Xxxxxxxxxxx 00000, Attention: Chief Financial Officer,
facsimile number (000) 000-0000, telephone number (000) 000-0000, (b) in the
case of the Trustee, Norwest Bank Minnesota, N.A., Norwest Center, Sixth and
Marquette, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Corporate Trust
Services -- Asset-Backed Administration and (c) as to such other parties to
which notices hereunder or under any Supplement are required to be given
pursuant to the terms of any Supplement, the addresses specified in any
Supplement or, as to each party, such other address as shall be designated by
such party in a written notice to each other party. Any notice required or
permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Certificateholder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
Any notice required or permitted to be made to Holders of Bearer
Certificates by publication shall be published in an Authorized Newspaper and,
if the Certificates of such Series are then listed on the Luxembourg Stock
Exchange and such stock exchange shall so require, in a newspaper of general
circulation in Luxembourg (which newspaper shall be printed in the English
language and customarily published on each business day in Luxembourg) and, if
the Certificates of such Series are listed on any other stock exchange and such
stock exchange shall so require, in any other city required by such stock
exchange outside the United States, or, if not practicable, elsewhere in Europe.
In case by reason of the suspension of publication of any Authorized
Newspaper or permitted newspaper with respect to Luxembourg or by reason of any
other cause it shall be impracticable to publish any notice to Holders of Bearer
Certificates as provided above, then such notification to Holders of Bearer
Certificates as shall be given with approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to Holders of Bearer Certificates as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of any notice mailed to Holders of Registered Certificates as
provided above.
Copies of all notices, reports, certificates and amendments delivered
hereunder shall be mailed to the Rating Agency as follows: Xxxxx'x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: ABS Monitoring
Department - 4th Floor; and to Standard & Poor's Ratings Services, 00 Xxxxxxxx,
Xxx Xxxx, XX 00000, Attention: Asset Backed Surveillance Department.
SECTION 13.6 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or rights of the Certificateholders thereof.
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SECTION 13.7 ASSIGNMENT. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 7.2, 8.2, 8.5 and 13.2(b), this
Agreement, including any Supplement, may not be assigned by the Transferor or
the Servicer, as the case may be, without the prior consent of Holders of
Investor Certificates evidencing Undivided Interests aggregating more than 50%
of the Aggregate Investor Amount.
SECTION 13.8 CERTIFICATES NONASSESSABLE AND FULLY PAID. It is the
intention of the parties to this Agreement that the Investor Certificateholders
(and the Certificate Owners) shall not be personally liable for obligations of
the Trust, that the Undivided Interests represented by the Investor Certificates
shall be nonassessable for any losses or expenses of the Trust or for any reason
whatsoever, and that Investor Certificates upon authentication thereof by the
Trustee pursuant to Section 6.2 are and shall be deemed fully paid.
SECTION 13.9 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, without limitation,
the execution of any financing statements or continuation statements relating to
the property of the Trust for filing under the provisions of the UCC of each
Relevant UCC State.
SECTION 13.10 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Trustee or the Investor
Certificateholders, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 13.11 COUNTERPARTS. This Agreement and any Supplement 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 NO THIRD-PARTY BENEFICIARIES. This Agreement and any
Supplement will inure to the benefit of and be binding upon the parties hereto,
the Certificateholders and the Certificate Owners and their respective
successors and permitted assigns. Except as otherwise provided in this Agreement
or any Supplement, no other person will have any right or obligation hereunder,
whether as third party beneficiaries or otherwise.
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114
SECTION 13.13 ACTIONS BY CERTIFICATEHOLDERS.
(a) Wherever in this Agreement or any Supplement, a provision is made
that an action may be taken or a notice, demand or instruction given by Investor
Certificateholders, such action, notice or instruction may be taken or given by
any Investor Certificateholder of any Series, unless such provision requires a
specific percentage of Investor Certificateholders of a certain Series or all
Series.
(b) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Certificateholder shall bind such Certificateholder and
every subsequent holder of such Certificate issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or omitted to be done by the Trustee or the Servicer in reliance
thereon, whether or not notation of such action is made upon such Certificate.
SECTION 13.14 MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement, including any Supplements, set forth the
entire understanding of the parties relating to the subject matter hereof, and
all prior understandings, written or oral, are superseded by this Agreement.
This Agreement may not be modified, amended, waived or supplemented except as
provided herein.
SECTION 13.15 HEADINGS. The cover page, titles, table of contents,
headings and subheadings of this Agreement are for purposes of reference only
and shall not otherwise affect the meaning or interpretation of any provision
hereof.
SECTION 13.16 CERTIFICATES AND OPINIONS OF COUNSEL.
(a) Any certificate delivered hereunder may be based, insofar as it
relates to legal matters, upon an Opinion of Counsel, unless the Person
delivering such certificate knows, or in the exercise of reasonable care should
know, that such opinion with respect to the matters upon which such certificate
may be based as aforesaid is erroneous. Any Opinion of Counsel or certificate
delivered hereunder may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Servicer or the Transferor, stating that the information with respect to
such factual matters is in the possession of such Person, unless the Person
delivering such certificate or such counsel knows, or in the exercise of
reasonable care should know, that such certificate, opinion or representations
with respect to such matters are erroneous. Any Opinion of Counsel delivered
hereunder may contain necessary exceptions and qualifications.
(b) Any Opinion of Counsel or certificate delivered hereunder may be
based, insofar as it relates to accounting matters, upon a certificate or
opinion of or representations by an independent public accountant or firm of
accountants, unless such counsel or the Person delivering such certificate, as
the case may be, knows that the certificate or opinions or representations with
respect to the accounting matters upon which the certificate or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous. Any certificate, opinion or
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representations of any firm of independent public accountants filed with the
Trustee shall contain a statement that such firm is independent.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments hereunder, they may, but need not, be consolidated and form one
instrument.
SECTION 13.17 NO PETITION COVENANT. Notwithstanding any prior
termination of this Agreement, the Transferor, the Servicer, the Trustee, the
Transfer Agent and Registrar and each Paying Agent shall not, prior to the date
which is one year and one day after the termination of this Agreement with
respect to the Trust, acquiesce, petition or otherwise invoke or cause the Trust
to invoke the process of any Governmental Authority for the purpose of
commencing or sustaining a case against the Trust under any Federal or state
Debtor Relief Laws the appointment of a receiver, liquidator, conservator,
assignee, trustee, custodian, sequestrator or other similar official for the
Trust or any substantial part of its property or ordering the winding-up or
liquidation of the affairs of the Trust.
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116
IN WITNESS WHEREOF, the Transferor, the Servicer and the Trustee and
Paying Agent have caused this Master Pooling and Servicing Agreement to be duly
executed by their respective officers as of the day and year first above
written.
XXXXXXXX'X CREDIT CORPORATION,
as Transferor
By:
------------------------------------
Name:
Title:
XXXXXXXX'X, INC.,
as Servicer
By
-------------------------------------
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee and Paying Agent
By:
------------------------------------
Name:
Title:
115
117
EXHIBIT A
TO THE
MASTER POOLING AND SERVICING AGREEMENT
FORM OF EXCHANGEABLE TRANSFEROR CERTIFICATE
118
EXHIBIT A
TO THE
MASTER POOLING AND SERVICING AGREEMENT
EXCHANGEABLE TRANSFEROR
CERTIFICATE
THIS CERTIFICATE OR ANY INTEREST HEREIN MAY NOT BE TRANSFERRED, ASSIGNED,
EXCHANGED OR CONVEYED, EXCEPT IN ACCORDANCE WITH SECTIONS 6.3, 6.9 AND 7.2 OF
THE MASTER POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
No. R-1 One Unit
XXXXXXXX'X CREDIT CARD MASTER TRUST
EXCHANGEABLE TRANSFEROR CERTIFICATE
This Certificate represents an interest in
the Xxxxxxxx'x Credit Card Master Trust
Evidencing an undivided interest in a trust, the corpus of which
consists of receivables generated or to be generated in a portfolio of consumer
revolving credit card accounts including, without limitation, VISA(R) Card and
MasterCard(R) credit card accounts, originated or acquired by the Sellers or
their Affiliates, including the Bank.
(Not an interest in or recourse obligation of Xxxxxxxx'x, Inc. or any
of its Affiliates)
This certifies that Xxxxxxxx'x, Inc. is the registered owner of an
undivided interest in the Xxxxxxxx'x Credit Card Master Trust (the "Trust")
issued pursuant to the Master Pooling and Servicing Agreement, dated as of July
__, 1997 (together with each Supplement, and as such Agreement may have been, or
may from time to time be, amended, supplemented or otherwise modified, the
"Pooling and Servicing Agreement"); by and among Xxxxxxxx'x Credit Corporation,
as Transferor (in such capacity, the "Transferor"), Xxxxxxxx'x, Inc., as
Servicer (in such capacity, the "Servicer"), and Norwest Bank Minnesota,
National Association, as Trustee (the "Trustee"). The corpus of the Trust
consists of all of the Transferor's right, title and interest in and to a
portfolio of receivables now existing and hereafter created (the "Receivables")
arising under certain consumer revolving credit card accounts from time to time
owned by the Transferor and identified in the Pooling and Servicing Agreement
(collectively, the "Accounts"), all monies due or to become due with respect
thereto (including Recoveries) on and after the Cut-Off Date, all proceeds of
such Receivables, all Interchange, if any, all monies as are from time to time
deposited in the Collection Account and any other account or accounts maintained
for the benefit of the Certificateholders and all monies as are from time to
time available under the Enhancement, if any, for any Series for payment to
Certificateholders. The Receivables consist of Receivables which arise generally
from the purchase of merchandise and
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services, periodic finance charges, cash advances and cash advance fees, annual
cardholder fees, late fees, over limit fees, returned check fees, service
contract charges and Insurance Charges billed to Obligors, as more fully
specified in the Pooling and Servicing Agreement, including Recoveries on
Receivables in Defaulted Accounts.
Although a summary of certain provisions of the Pooling and Servicing
Agreement is set forth below, this Certificate does not purport to summarize the
Pooling and Servicing Agreement and reference is made to the Pooling and
Servicing 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 Pooling and Servicing
Agreement may be requested from the Trustee by writing to the Trustee at Norwest
Bank Minnesota, National Association, Sixth and Marquette, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000, Attention: Asset Backed Securities Corporate Trust
Department. To the extent not defined herein capitalized terms used herein have
the meanings ascribed to them in the Pooling and Servicing Agreement.
This Certificate is the Exchangeable Transferor Certificate, which
represents a fractional undivided interest in the Trust, including the right to
receive the Collections and other amounts at the times and in the amounts
specified in the Pooling and Servicing Agreement to be paid to the holder of the
Exchangeable Transferor Certificate. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and Servicing
Agreement, to which Pooling and Servicing Agreement, as amended from time to
time, to which the holder hereof assents by its acceptance hereof, and by which
the holder hereof is bound.
This Exchangeable Transferor Certificate represents the Transferor
Interest in the Receivables in the Trust at any time. In addition to the
Exchangeable Transferor Certificate, Investor Certificates will be issued to
investors pursuant to the Pooling and Servicing Agreement, which will represent
the interests of Investor Certificateholders in the Trust. This Certificate
shall not represent any interest in the Collection Account or any other account
or any Enhancement, except as specifically provided in the Pooling and Servicing
Agreement.
The Transferor has entered into the Pooling and Servicing Agreement,
and this Certificate is issued, with the intention that, for federal, state and
local income and franchise tax purposes, the Investor Certificates (other than
those held by the Transferor or as otherwise provided in the applicable
Supplement) will qualify as indebtedness secured by the Receivables. The
Transferor, by entering into the Pooling and Servicing Agreement and by the
acceptance of the Exchangeable Transferor Certificate, agrees to treat the
Investor Certificates (other than those held by the Transferor or as otherwise
provided in the applicable Supplement) for federal, state and local income and
franchise tax purposes as indebtedness.
Subject to certain conditions in the Pooling and Servicing Agreement,
the obligations created by the Pooling and Servicing Agreement and the Trust
created thereby
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shall terminate upon the earlier of (i) the day designated by the Transferor
after the Distribution Date following the date on which funds shall have been
deposited in the Collection Account or applicable Principal Account sufficient
to pay the Aggregate Investor Amount and Enhancement Investor Amount plus
applicable Certificate Interest accrued through such Distribution Date, and (ii)
the day on which the final payment of principal is made to the
Certificateholders, and all right, title and interest to the Receivables and
other funds of the Trust (other than funds held in the Principal Account) are
transferred to the holder hereof.
Upon the termination of the Trust pursuant to Article XII of the
Pooling and Servicing Agreement and the surrender of the Exchangeable Transferor
Certificate, the Trustee shall assign and convey to the Transferor (without
recourse, representation or warranty) all right, title and interest of the
Trustee in and to the Receivables, whether then existing or thereafter created,
and all proceeds thereof except for amounts held by the Paying Agent and all
other Trust property. 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 Transferor all right, title and
interest which the Trustee had in the applicable Receivables and other Trust
property.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee, by manual signature, the holder of this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement,
or be valid for any purpose.
IN WITNESS WHEREOF, Xxxxxxxx'x, Inc. has caused this Exchangeable
Transferor Certificate to be duly executed under its official seal.
XXXXXXXX'X, INC.
By:
---------------------
Authorized Signatory
Dated: , 1997
------------
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Exchangeable Transferor Certificate referred to in the
within-mentioned Pooling and Servicing Agreement.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
By:
----------------------------------------
Authorized Signatory
Dated: , 1997
--------------
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EXHIBIT B
TO THE
MASTER POOLING AND SERVICING AGREEMENT
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
123
EXHIBIT B
TO THE
MASTER POOLING AND SERVICING AGREEMENT
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Subsection 2.6(c)(ii) of the
Master Pooling and Servicing Agreement)
ASSIGNMENT No. _________ OF RECEIVABLES IN ADDITIONAL ACCOUNTS, dated
as of _________________, _____, is from Xxxxxxxx'x Credit Corporation, a Nevada
corporation (the "Transferor"), to Norwest Bank Minnesota, National Association,
as trustee (the "Trustee") pursuant to the Master Pooling and Servicing
Agreement referred to below.
WITNESSETH:
WHEREAS, Xxxxxxxx'x Credit Corporation, as Transferor, Xxxxxxxx'x,
Inc., as Servicer, and the Trustee are parties to the Master Pooling and
Servicing Agreement, dated as of July __, 1997, including any Supplement thereto
(hereinafter as such Agreement may have been, or may from time to time be,
amended, supplemented or otherwise modified, the "Pooling and Servicing
Agreement"); and
WHEREAS, pursuant to the Pooling and Servicing Agreement, the
Transferor wishes to designate Additional Accounts to be included as Accounts
and to convey the Receivables of such Additional Accounts, whether now existing
or hereafter created, to the Trust as part of the corpus of the Trust (as each
such term is defined in the Pooling and Servicing Agreement); and
WHEREAS, the Trustee is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW THEREFORE, the Transferor and the Trustee hereby agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings ascribed to them in the Pooling and
Servicing Agreement.
"Additional Account Closing Date" shall mean, with respect to the
Additional Accounts designated hereby, ___________, ____.
"Additional Account Cut-Off Date" shall mean, with respect to the
Additional Accounts designated hereby, _________, _____.
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2. DESIGNATION OF ADDITIONAL ACCOUNTS. The Transferor shall deliver to
the Trustee on or prior to the Additional Account Closing Date, a computer file,
microfiche or written list containing a true and complete list of all Accounts
which as of the Additional Account Closing Date shall be deemed to be Additional
Accounts, identified by account number and by the Receivables balance in such
Accounts as of the close of business on the Additional Account Cut-Off Date.
Such list shall be marked as Schedule 1 to this Assignment and, as of the
Additional Account Closing Date, shall be incorporated into and made a part of
this Assignment and the Pooling and Servicing Agreement.
3. CONVEYANCE OF RECEIVABLES. (a) The Transferor does hereby transfer,
assign, set-over and otherwise convey to the Trust for the benefit of the
Certificateholders, without recourse, on and after the Additional Account
Closing Date, all right, title and interest of the Transferor in and to the
Receivables, now existing and hereafter created, in the Additional Accounts
designated on Schedule 1, all monies due or to become due on and after the
Additional Account Cut-Off Date and all amounts received with respect thereto,
including all Finance Charges, Recoveries and Interchange, if any, related
thereto, and all proceeds thereof (including Insurance Proceeds).
(b) In connection with such transfer, the Transferor agrees to
record and file, at its own expense, financing statements (and assignment and
continuation statements with respect to such financing statements when
applicable) with respect to the Receivables now existing and hereafter created
in the Additional Accounts designated on Schedule 1 (which may be a single
financing statement with respect to all such Receivables) for the transfer of
chattel paper, accounts and general intangibles (if necessary) as defined in
Section 9-106 of the UCC as in effect in the Relevant UCC State meeting the
requirements of applicable State law in such manner and such jurisdictions as
are necessary to perfect the assignment of such Receivables to the Trust, and to
deliver to the Trustee a file-stamped copy of such financing statement or other
evidence that such filing (which may, for purposes of this Section 3, consist of
telephone confirmation of such filing, confirmed within 24 hours in writing) to
the Trustee on or prior to the Additional Account Closing Date.
(c) In connection with such transfer, the Transferor further agrees,
at its own expense, on or prior to the Additional Account Closing Date, to cause
the Servicer to indicate, or cause to be indicated, clearly and unambiguously in
the computer files of the Transferor and the Sellers that the Receivables
created in connection with the Additional Accounts designated hereby have been
sold and transferred to the Trust pursuant to this Assignment for the benefit of
the Certificateholders.
4. ACCEPTANCE BY TRUSTEE. Subject to the satisfaction of the conditions
set forth in Section 6 of this Assignment, the Trustee hereby acknowledges its
acceptance on behalf of the Trust of all right, title and interest previously
held by the Transferor in and to the Receivables now existing and hereafter
created, and declares that it shall maintain such right, title and interest,
upon the trust herein set forth, for the benefit of all
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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 or written
list described in Section 2 of this Assignment.
5. REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR. The Transferor
hereby represents and warrants to the Trust as of the Additional Account Closing
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, receivership, conservatorship,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and creditors of
national banking associations and except as such enforceability may be limited
by general principles of equity (whether considered in a proceeding at law or in
equity).
(B) ELIGIBILITY OF ACCOUNTS. Each Additional Account designated
hereby was, as of the Additional Account Cut-Off Date, an Eligible Account.
(C) SELECTION PROCEDURES. No selection procedures believed by the
Transferor to be materially adverse to the interests of any Series of Investor
Certificates or any Enhancement Provider, if any, were utilized in selecting the
Additional Accounts designated hereby from the available Eligible Accounts in
the Transferor's portfolio of credit card accounts.
(D) INSOLVENCY. The Transferor is not insolvent and, immediately
after giving effect to the conveyance set forth in Section 3 of this Assignment,
will not be made insolvent by the transfer of the Receivables of such Additional
Accounts.
(E) SECURITY INTEREST. This Assignment constitutes either (i) a
valid transfer and assignment to the Trust of all right, title and interest of
the Transferor in and to Receivables now existing and hereafter created in
Additional Accounts designated on Schedule 1 hereto, all monies due or to become
due with respect thereto on and after the Additional Account Cut-Off Date
including all Finance Charges Recoveries, Interchange, if any, amounts held in
any of the accounts established for the benefit of Certificateholders on and
after the Additional Account Cut-Off Date and all proceeds of all Receivables to
the extent set forth in Section 9-306 of the UCC in effect in the Relevant UCC
State of such Receivables, and such Receivables and all proceeds thereof
(including Insurance Proceeds) will be conveyed to the Trust free and clear of
any Lien of any Person claiming through or under the Transferor or any of its
Affiliates except for (x) Liens permitted under subsection 2.5(b) of the Pooling
and Servicing Agreement, (y) the interest of the Transferor as holder of the
Exchangeable Transferor Certificate and (z) any right of the holder of the
Exchangeable Transferor Certificate to receive interest accruing on, and
investment earnings (net of investment losses and expenses) with respect to, the
Collection
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Account and any other account or accounts maintained for the benefit of
Certificateholders as provided in the Pooling and Servicing Agreement and any
Supplement; or (ii) a grant of a security interest (as defined in the UCC as in
effect in the Relevant UCC State) in such property to the Trustee on behalf of
the Trust, which is enforceable with respect to the existing Receivables of the
Additional Accounts designated on Schedule 1 hereto, and the proceeds thereof
(as defined in the UCC as in effect in the Relevant UCC State) (to the extent
set forth in Section 9-306 of the UCC as in effect in the Relevant UCC State),
upon the conveyance of such Receivables to the Trust, and which will be
enforceable with respect to the Receivables thereafter created in respect of
Additional Accounts designated on Schedule 1 hereto and the proceeds thereof (to
the extent set forth in Section 9-306 of the UCC as in effect in the Relevant
UCC State), upon such creation; and (iii) if this Assignment constitutes the
grant of a security interest to the Trust in such property, upon the filing of
the applicable financing statements described in Section 3 of this Assignment
with respect to the Additional Accounts designated hereby and in the case of the
Receivables of such Additional Accounts thereafter created and the proceeds
thereof (to the extent set forth in Section 9-306 of the UCC as in effect in the
Relevant UCC State), upon such creation, the Trust shall have a first priority
perfected security interest in such property and the proceeds thereof (to the
extent set forth in Section 9-306 of the UCC as in effect in the Relevant UCC
State), except for Liens permitted under subsection 2.5(b) of the Pooling and
Servicing Agreement.
6. CONDITIONS PRECEDENT. The acceptance of the Trustee set forth in
Section 4 of this Assignment and the amendment of the Pooling and Servicing
Agreement set forth in Section 7 hereof are subject to the satisfaction, on or
prior to the Additional Account Closing Date, of the following conditions
precedent:
(A) OFFICER'S CERTIFICATE. The Transferor shall have delivered to
the Trustee an Officer's Certificate dated as of the Additional Account Closing
Date, certifying that (i) all requirements set forth in Section 2.6 of the
Pooling and Servicing Agreement for designating Additional Accounts and
conveying the Receivables of such Additional Accounts, whether now existing or
hereafter created, have been satisfied, and (ii) each of the representations and
warranties made by the Transferor in Section 5 of this Assignment is true and
correct as of the Additional Account Closing Date. The Trustee may conclusively
rely on such Officer's Certificate, shall have no duty to make inquiries with
regard to the matters set forth therein, and shall incur no liability in so
relying.
(B) OPINION OF COUNSEL. The Transferor shall have delivered to the
Trustee and each Rating Agency an Opinion of Counsel with respect to the
Receivables in the Additional Accounts designated hereby substantially in the
form of Part One of Exhibit G to the Pooling and Servicing Agreement.
7. AMENDMENT OF THE POOLING AND SERVICING AGREEMENT. The Pooling and
Servicing Agreement is hereby amended to provide that all references therein to
the "Pooling and Servicing Agreement," to "this Agreement" and "herein" shall be
deemed from and after the Additional Account Closing Date to be a dual reference
to the Pooling
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and Servicing Agreement as amended by this Assignment. Except as expressly
amended hereby, all of the representations, warranties, terms, covenants and
conditions of the Pooling and Servicing Agreement shall remain unamended and
shall continue to be, and shall remain, in full force and effect in accordance
with its terms and except as expressly provided herein shall not constitute or
be deemed to constitute a waiver of compliance with or a consent to
non-compliance with any term or provision of the Pooling and Servicing
Agreement.
8. COUNTERPARTS. This Assignment may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Assignment of
Receivables in Additional Accounts to be duly executed and delivered by their
respective duly authorized officers on the day and year first above written.
XXXXXXXX'X CREDIT CORPORATION,
as Transferor of the Additional Accounts
By
---------------------------------------
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee and Paying Agent
By
---------------------------------------
Name:
Title:
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SCHEDULE 1
TO
ASSIGNMENT NO. ___
OF
RECEIVABLES
in
ADDITIONAL ACCOUNTS
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EXHIBIT C
TO THE
MASTER POOLING AND SERVICING AGREEMENT
FORM OF REASSIGNMENT OF RECEIVABLES
130
EXHIBIT C
TO THE
MASTER POOLING AND SERVICING AGREEMENT
FORM OF REASSIGNMENT OF RECEIVABLES
(As required by Section 2.7(b)(i)of the
Master Pooling and Servicing Agreement)
THIS REASSIGNMENT No. ___ OF RECEIVABLES, dated as of _________, ____,
is by and between Xxxxxxxx'x Credit Corporation, a Nevada corporation, and
Norwest Bank Minnesota, National Association, as Trustee (the "Trustee"),
pursuant to the Master Pooling and Servicing Agreement referred to below.
WITNESSETH:
WHEREAS, Xxxxxxxx'x Credit Corporation, as transferor (the
"Transferor"), Xxxxxxxx'x, Inc., a Tennessee corporation, as servicer (the
"Servicer"), and the Trustee are parties to the Master Pooling and Servicing
Agreement, dated as of July ___, 1997, including any Supplement (hereinafter as
such Agreement may have been, or may from time to time be, amended, supplemented
or otherwise modified, the "Pooling and Servicing Agreement"); and
WHEREAS, pursuant to the Pooling and Servicing Agreement, the
Transferor wishes to remove all Receivables from certain designated Accounts
(the "Removed Accounts") and to cause the Trustee to quitclaim the Receivables
of such Removed Accounts, whether now existing or hereafter created, from the
Trust to the Transferor (as each such term is defined in the Pooling and
Servicing Agreement); and
WHEREAS, the Trustee is willing to accept such designation and to
quitclaim 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. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings ascribed to them in the Pooling and
Servicing Agreement.
"Removal Date" shall mean, with respect to the Removed Accounts
designated hereby, ___________, ____.
"Removal Notice Date" shall mean, with respect to the Removed Accounts
designated hereby, __________, ____ (which shall be the tenth Business Day prior
to the Removal Date).
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2. DESIGNATION OF REMOVED ACCOUNTS. The Transferor shall deliver to the
Trustee herewith, a computer file, microfiche or written list containing a true
and complete list of each Account which as of the Removal Date shall be deemed
to be a Removed Account, such Accounts being identified by account number and by
the aggregate balance of the Receivables in such Removed Accounts as of the
Removal Notice Date. Such list shall be marked as Schedule 1 to this
Reassignment and shall be incorporated into and made a part of this Reassignment
and the Pooling and Servicing Agreement as of the Removal Date.
3. CONVEYANCE OF RECEIVABLES. The Trustee does hereby quitclaim to the
Transferor, without recourse, representation or warranty on and after the
Removal Date, all right, title and interest of the Trust in and to the
Receivables now existing and hereafter created in the Removed Accounts
designated on Schedule 1 hereto, all monies due or to become due and all amounts
received with respect thereto, including all Recoveries, Finance Charges,
Interchange, if any, Insurance Charges and service contract charges related
thereto, and all proceeds thereof.
(a) In connection with such transfer, the Trustee agrees to execute
and deliver to the Transferor on or prior to the date of this Reassignment, a
termination statement with respect to the Receivables now existing and hereafter
created in the Removed Accounts designated hereby (which may be a single
termination statement with respect to all such Receivables) evidencing the
release by the Trust of its lien on the Receivables in the Removed Accounts, and
meeting the requirements of applicable state law, in such manner and such
jurisdictions as are necessary to remove such lien. The Transferor shall be
responsible for filing any such termination statement and the Trustee shall have
no responsibility to see to any recording or filing of any such termination
statement.
4. ACCEPTANCE BY TRUSTEE. The Trustee hereby acknowledges that, prior
to or simultaneously with the execution and delivery of this Reassignment, the
Transferor delivered to the Trustee the computer file, microfiche or written
list represented by the Transferor to be as described in Section 2 of this
Reassignment.
5. REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR. The Transferor
hereby represents and warrants to the Trust as of the Removal Date:
(A) VALID AND LEGALLY BINDING OBLIGATION. This Reassignment
constitutes a valid and legally binding obligation of the Transferor enforceable
against the Transferor in accordance with its terms, subject to bankruptcy,
insolvency, receivership, conservatorship, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of creditors'
rights in general, including creditors of national banking associations and
except as such enforceability may be limited by general principles of equity
(whether considered in a proceeding at law or in equity); and
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(B) SELECTION PROCEDURES. No selection procedures believed by the
Transferor to be materially adverse to the interests of any outstanding Series
of Investor Certificates were utilized in selecting the Removed Accounts
designated hereby.
6. CONDITIONS PRECEDENT. The amendment of the Pooling and Servicing
Agreement set forth in Section 7 hereof is subject to the satisfaction, on or
prior to the Removal Date, of the following condition precedent:
(A) OFFICER'S CERTIFICATE. The Transferor shall have delivered to
the Trustee (with a copy to the Rating Agencies), an Officer's Certificate
certifying that (i) on the Removal Date, all requirements set forth in Section
2.7(b) of the Pooling and Servicing Agreement for designating Removed Accounts
and reconveying the Receivables of such Removed Account as provided herein,
whether now existing or hereafter created, have been satisfied, and (ii) each of
the representations and warranties made by the Transferor in Section 5 hereof is
true and correct as of the Removal Date. The Trustee may conclusively rely on
such Officer's Certificate, shall have no duty to make inquiries with regard to
the matters set forth therein and shall incur no liability in so relying.
7. AMENDMENT OF THE POOLING AND SERVICING AGREEMENT. The Pooling and
Servicing Agreement is hereby amended to provide that all references therein to
the "Pooling and Servicing Agreement," to "this Agreement" and "herein" shall be
deemed from and after the Removal Date to be a dual reference to the Pooling and
Servicing Agreement as amended by this Reassignment. Except as expressly amended
hereby, all of the representations, warranties, terms, covenants and conditions
of the Pooling and Servicing Agreement shall remain unamended and shall continue
to be, and shall remain, in full force and effect in accordance with its terms,
and except as expressly provided herein, shall not constitute or be deemed to
constitute a waiver of compliance with or a consent to non-compliance with any
term or provision of the Pooling and Servicing Agreement.
8. COUNTERPARTS. This 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 together shall constitute one and the
same instrument.
C-3
133
IN WITNESS WHEREOF, the undersigned have caused this Reassignment of
Receivables to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
XXXXXXXX'X CREDIT CORPORATION
as Transferor of the Additional Accounts
By
--------------------------------------
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee and Paying Agent
By
--------------------------------------
Name:
Title:
C-4
134
SCHEDULE 1
TO
REASSIGNMENT OF RECEIVABLES
REMOVED ACCOUNTS
C-5
135
EXHIBIT D
TO THE
MASTER POOLING AND SERVICING AGREEMENT
FORM OF SERIES CLOSING DATE REPORT
136
EXHIBIT D
TO THE
MASTER POOLING AND SERVICING AGREEMENT
FORM OF SERIES CLOSING DATE REPORT
XXXXXXXX'X, INC.
--------------------------------------
XXXXXXXX'X CREDIT CARD MASTER TRUST
--------------------------------------
The undersigned, duly authorized representative of Xxxxxxxx'x, Inc., as
Servicer (the "Servicer") pursuant to the Master Pooling and Servicing Agreement
dated as of July __, 1997, by and among Xxxxxxxx'x Credit Corporation, as
Transferor, Xxxxxxxx'x, Inc., as Servicer, and Norwest Bank Minnesota, National
Association, as trustee (the "Trustee"), does hereby certify to the best of his
or her knowledge that:
1. The Servicer is as of the date hereof the Servicer under the Pooling
and Servicing Agreement. Capitalized terms used but not defined in this
Certificate shall have their respective meanings set forth in the Pooling and
Servicing Agreement.
2. The undersigned is duly authorized pursuant to the Pooling and
Servicing Agreement to execute and deliver this Certificate to the Trustee.
3. This Certificate is delivered pursuant to Section 3.4(a) of the
Pooling and Servicing Agreement.
4. The Aggregate Principal Receivables as of the end of the day two
Business Days preceding the Closing Date for Series ______ was $____________.
[5. The Transferor Amount as of the end of the day two Business Days
preceding the Closing Date for Series ___ was $______ and the Transferor
Interest Percentage as of such date was ______%.] [insert if applicable]
6. The Transferor Interest Percentage after giving effect to the
issuance of the Investor Certificates of Series _____ is expected to be not less
than ____%.
D-1
137
IN WITNESS WHEREOF, the undersigned, a duly authorized officer of the
Servicer, has duly executed this Certificate this ___ day of ______, ____.
XXXXXXXX'X, INC.,
as Servicer
By:
--------------------------------
Name:
Title:
D-2
138
EXHIBIT E
TO THE
MASTER POOLING AND SERVICING AGREEMENT
FORM OF MONTHLY SERVICER'S CERTIFICATE
139
EXHIBIT E
TO THE
MASTER POOLING AND SERVICING AGREEMENT
FORM OF MONTHLY SERVICER'S CERTIFICATE
XXXXXXXX'X, INC.
--------------------------------------
XXXXXXXX'X CREDIT CARD MASTER TRUST
--------------------------------------
The undersigned, a duly authorized representative of Xxxxxxxx'x, Inc.
("Xxxxxxxx'x"), as Servicer, pursuant to the Master Pooling and Servicing
Agreement dated as of July ___, 1997 (the "Pooling and Servicing Agreement"),
between Xxxxxxxx'x Credit Corporation, as Transferor, Xxxxxxxx'x as Servicer,
and Norwest Bank Minnesota, National Association, as Trustee, does hereby
certify as follows:
1. Capitalized terms used but not defined in this Officer's Certificate
have their respective meanings set forth in the Pooling and
Servicing Agreement.
2. As of the date hereof, Xxxxxxxx'x is the Servicer under the Pooling
and Servicing Agreement.
3. The undersigned is a Servicing Officer.
4. This Officer's Certificate is delivered pursuant to Section 3.4 of
the Pooling and Servicing Agreement.
5. The aggregate amount of Collections processed for preceding Monthly
Period was equal to ....................................................... $
---------
6. The aggregate amount of Collections of Finance Charge Receivables
for the preceding Monthly Period was equal to ............................. $
---------
7. The aggregate amount of Collections of Principal Receivables for
preceding Monthly Period was equal to .................................... $
---------
X-0
000
0. The Investor Percentage with respect to
Collections of Principal Receivables for such Monthly
Period was equal to:
Series............................................................... _____%
Series............................................................... _____%
etc.
9. The Investor Percentage with respect to Collections of Finance Charge
Receivables with respect to the preceding Monthly Period was equal
to:
Series............................................................... _____%
Series............................................................... _____%
etc.
10. The Investor Percentage with respect to Defaulted Receivables with
respect to the preceding Monthly Period was equal to:
Series............................................................... _____%
Series............................................................... _____%
etc.
11. The total amount to be distributed to Investor Certificateholders on
the next succeeding Distribution Date is equal to:
Series.............................................................. $______
Series.............................................................. $______
etc.
12. The amount to be distributed to Investor Certificateholders on the
next succeeding Distribution Date per $1,000 original principal
amount is equal to:
Series.............................................................. $______
Series.............................................................. $______
etc.
13. The amount of such distribution allocable to principal is equal to:
Series.............................................................. $______
Series.............................................................. $______
etc.
14. The amount of such distribution allocable to principal per $1,000
original principal amount is equal to:
Series.............................................................. $______
Series.............................................................. $______
etc.
X-0
000
00. The amount of such distribution allocable to interest is equal to:
Series.............................................................. $_________
Series.............................................................. $_________
etc.
16. The amount of such distribution allocable to interest per $1,000
original principal amount is equal to:
Series.............................................................. $_________
Series.............................................................. $_________
etc.
17. The aggregate outstanding balance of Accounts which were delinquent
as of the last day of the immediately preceding Monthly Period by:
31-60 days....................................................... $_________
61-90 days....................................................... $_________
91 days or more ................................................. $_________
18. The Investor Default Amount for the preceding Monthly Period was
equal to:
Series.............................................................. $_________
Series.............................................................. $_________
etc.
19. (a)The amount of Investor Charge Offs with respect to the next
succeeding Distribution Date is equal to:
Series.............................................................. $_________
Series.............................................................. $_________
etc.
(b) The amount of reimbursement of Investor Charge Offs with
respect to the next succeeding Distribution Date is equal to :
Series.............................................................. $_________
Series.............................................................. $_________
etc.
20. The amount of the Monthly Servicing Fee required to be paid on the
next succeeding Distribution Date is equal to:
Series.............................................................. $_________
Series.............................................................. $_________
etc.
X-0
000
00. The existing Deficit Controlled [Amortization] [Accumulation] Amount,
if applicable, is equal to:
Series.............................................................. $_________
Series.............................................................. $_________
etc.
22. The aggregate amount of Receivables in the Trust at the close of
business on the last day of the preceding Monthly Period was equal to:
Series.............................................................. $_________
Series.............................................................. $_________
etc.
23. The Investor Amount at the close of business on the last day of the
preceding Monthly Period was equal to:
Series.............................................................. $_________
Series.............................................................. $_________
etc.
24. The available amount of applicable Enhancement, if any, is equal to:
Series.............................................................. $_________
Series.............................................................. $_________
etc.
25. Attached hereto is a true and correct copy of the Monthly
Certificateholder's Statement required to be delivered by the
Servicer on the date of this Officer's Certificate to the Trustee in
respect of each Series outstanding pursuant to the Pooling and
Servicing Agreement and the Supplements thereto.
26. As of the date hereof [no Pay Out Event with respect to any Series
has occurred during or with respect to the preceding Monthly Period]
[a Pay Out Event has occurred with respect to Series ______________]
E-4
143
IN WITNESS WHEREOF, the undersigned, a Servicing Officer, has duly
executed and delivered this certificate this _______________ day of
----------------------, ----.
XXXXXXXX'X, INC.,
as Servicer
By:
-------------------------------------
Name:
Title:
-------------------------------
E-5
144
EXHIBIT F
TO THE
MASTER POOLING AND SERVICING AGREEMENT
FORM OF ANNUAL SERVICER'S CERTIFICATE
145
EXHIBIT F
TO THE
MASTER POOLING AND SERVICING AGREEMENT
FORM OF ANNUAL SERVICER'S CERTIFICATE
XXXXXXXX'X, INC.
--------------------------------------
XXXXXXXX'X CREDIT CARD MASTER TRUST
--------------------------------------
The undersigned, a duly authorized representative of Xxxxxxxx'x, Inc.
("Xxxxxxxx'x"), as Servicer, pursuant to the Master Pooling and Servicing
Agreement dated as of July ___, 1997 (the "Pooling and Servicing Agreement"),
between Xxxxxxxx'x Credit Corporation, as Transferor, Xxxxxxxx'x as Servicer,
and Norwest Bank Minnesota, National Association, as Trustee, does hereby
certify that:
1. Capitalized terms used but not defined in this Officer's
Certificate have their respective meanings set forth in the
Pooling and Servicing Agreement.
2. As of the date hereof, Xxxxxxxx'x is the Servicer under the
Pooling and Servicing Agreement.
3. The undersigned is duly authorized pursuant to the Pooling and
Servicing Agreement to execute and deliver this Officer's
Certificate to the Trustee.
4. This Officer's Certificate is delivered pursuant to Section
3.5 of the Pooling and Servicing Agreement.
5. A review of the activities of the Servicer during the calendar
year ended December 31, ________ and of its performance under
the Pooling and Servicing Agreement was made under my
supervision.
6. Based on such review, to the best of the undersigned's
knowledge, the Servicer has fully performed all its
obligations under the Pooling and Servicing Agreement
throughout such calendar year and no event which, with the
giving of notice or passage of time or both, would constitute
a Servicer Default has occurred or is continuing except as
set forth in paragraph 7 below.
F-1
146
7. The following is a description of each Servicer Default under
the provisions of the Pooling and Servicing Agreement known to
me to have been made during the year ended December 31,
________, which sets forth in detail the (i) nature of each
such Servicer Default, (ii) the action taken by the Servicer,
if any, to remedy each such Servicer Default and (iii) the
current status of each such Servicer Default:
IN WITNESS WHEREOF, the undersigned, a duly authorized Servicing
Officer of the Servicer, has duly executed this Officer's Certificate this
________ day of __________, ____.
XXXXXXXX'X, INC.,
as Servicer
By:
------------------------------------
Name:
Title:
F-2
147
EXHIBIT G
TO THE
MASTER POOLING AND SERVICING AGREEMENT
FORM OF OPINION OF COUNSEL WITH RESPECT TO
THE MASTER POOLING AND SERVICING AGREEMENT
AND
ADDITIONAL ACCOUNTS
G-1
148
EXHIBIT G
TO THE
MASTER POOLING AND SERVICING AGREEMENT
PART ONE
PROVISIONS TO BE INCLUDED IN
OPINION OF COUNSEL TO BE
DELIVERED PURSUANT TO
SUBSECTIONS 2.6(C)(VI) AND 13.2(D) OF THE
MASTER POOLING AND SERVICING AGREEMENT
The Opinions set forth below may be subject to certain qualifications,
assumptions, limitations and exceptions taken or made in the opinion of the
Transferor's Counsel with respect to similar matters delivered on the Initial
Closing Date. Such Counsel may rely as to factual matters on Officer's
Certificates of the Transferor and the Servicer.
(i) The Assignment has been duly authorized, executed and delivered
by the Transferor and constitutes the valid and legally binding agreement of the
Transferor, enforceable against the Transferor in accordance with its terms
subject to bankruptcy, insolvency, fraudulent transfer, receivership,
conservatorship, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditor's rights and, as applicable, the
rights of creditors of national banking associations and to general equity
principles.
(ii) The provisions of the Pooling and Servicing Agreement are
effective to create, in favor of the Trustee for the benefit of the
Certificateholders, a valid security interest in the Receivables and the
proceeds thereof. Such security interest constitutes a first priority perfected
security interest in such Receivables and the proceeds thereof.
(iii) No filing or other action, other than the filing of Uniform
Commercial Code financing statements in the recording offices in the Relevant
UCC State is necessary to perfect or maintain the security interest in the
Receivables and the proceeds thereof, except that (a) appropriate Uniform
Commercial Code continuation statements must be filed timely and prior to the
expiration of five years from the date of the original filing, (b) if Transferor
changes its name, identity or corporate structure, appropriate Uniform
Commercial Code financing statements must be filed prior to the expiration of
four months after the Transferor changes its name, identity or corporate
structure and (c) if the Transferor changes its chief executive office or
principal place of business to a jurisdiction other than the State of _______,
such security interest must be perfected in such jurisdiction within four months
of the date on which the change occurs (or earlier, if perfection under the
laws of such jurisdiction would have otherwise ceased as set forth in clause
(a) above).
G-1
149
PART TWO
PROVISIONS TO BE INCLUDED IN
OPINION OF COUNSEL PURSUANT
TO SUBSECTION 13.1(g)
The counsel rendering this Opinion may rely on Officer's Certificates
of the Servicer as regards factual matters.
(i) The Amendment to the Master Pooling and Servicing Agreement,
attached hereto as Exhibit A (the "Amendment"), has been duly authorized,
executed and delivered by the Transferor and constitutes the valid and legally
binding agreement of the Transferor, enforceable in accordance with its terms
subject to bankruptcy, insolvency, fraudulent transfer, receivership,
conservatorship, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditor's rights and the rights of
creditors of national banking associations and to general equity principles.
(ii) The Amendment has been entered into in accordance with the terms
and provisions of Section 13.1 of the Pooling and Servicing Agreement.
G-2
150
EXHIBIT H
TO THE
MASTER POOLING AND SERVICING AGREEMENT
FORM OF ANNUAL OPINION OF COUNSEL
151
EXHIBIT H
TO THE
MASTER POOLING AND SERVICING AGREEMENT
PROVISIONS TO BE INCLUDED
IN ANNUAL OPINION OF COUNSEL
The Opinion set forth below, which is to be delivered pursuant to
subsection 13.2(d)(ii) of the Pooling and Servicing Agreement, may be subject to
certain qualifications, assumptions, limitations and exceptions taken or made in
the Opinion of Counsel delivered on the Initial Closing Date with respect to
similar matters.
No filing or other action, other than such filing or action described
in such Opinion, is necessary from the date of such Opinion through _________ of
the following year to continue the perfected status of interest of the Trust in
the collateral described in the financing statements referred to in such
opinion.
H-1
152
EXHIBIT I
TO THE
MASTER POOLING AND SERVICING AGREEMENT
ACCOUNT AGREEMENTS
153
EXHIBIT J
TO THE
MASTER POOLING AND SERVICING AGREEMENT
FORM OF DEPOSITORY AGREEMENT
(LETTER OF REPRESENTATIONS)
154
SCHEDULE 1
TO THE
MASTER POOLING AND SERVICING AGREEMENT
LIST OF ACCOUNTS
(DELIVERED TO TRUSTEE ONLY)