MBP DRAFT 5/9/97
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FIRST NATIONAL BANK OF COMMERCE
Transferor and Servicer
and
___________________
Trustee
on behalf of the Holders
of the First NBC Credit Card Master Trust
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POOLING AND SERVICING AGREEMENT
Dated as of ________________ __, 1997
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . .1
SECTION 1.1 Definitions. . . . . . . . . . . . .1
SECTION 1.2 Other Interpretive Provisions. . . 21
ARTICLE II CONVEYANCE OF RECEIVABLES. . . . . . . . 22
SECTION 2.1 Conveyance of Receivables. . . . . 22
SECTION 2.2 Acceptance by Trustee. . . . . . . 23
SECTION 2.3 Representations and Warranties of
Transferor. . . . . . . . . . . . . . . 24
SECTION 2.4 Representations and Warranties of
Transferor Relating to this
Agreement and the Receivables . 26
SECTION 2.5 Covenants of Transferor. . . . . . 32
SECTION 2.6 Addition of Accounts . . . . . . . 34
SECTION 2.7 Removal of Accounts. . . . . . . . 38
SECTION 2.8 Discount Option. . . . . . . . . . 39
SECTION 2.9 Additional Transferors. . . . . . . 40
ARTICLE III ADMINISTRATION AND SERVICING. . . . . . 40
SECTION 3.1 Acceptance of Appointment and Other
Matters Relating to Servicer . . 40
SECTION 3.2 Servicing Compensation . . . . . . 43
SECTION 3.3 Representations, Warranties and
Covenants of Servicer. . . . . . 43
SECTION 3.4 Reports and Records for Trustee. . 44
SECTION 3.5 Annual Servicer's Certificate. . . 45
SECTION 3.6 Annual Independent Accountants'
Servicing Report. . . . . . . . .45
SECTION 3.7 Tax Treatment. . . . . . . . . . . 46
SECTION 3.8 Notices to Transferor. . . . . . . 47
SECTION 3.9 Reports to the Commission. . . . . 47
ARTICLE IV RIGHTS OF HOLDERS AND ALLOCATION AND
APPLICATION OF COLLECTIONS . . . . . .47
SECTION 4.1 Rights of Holders. . . . . . . . . 47
SECTION 4.2 Establishment of Accounts. . . . . 47
SECTION 4.3 Collections and Allocations. . . . 50
SECTION 4.4 Shared Principal Collections. . . . 53
SECTION 4.5 Excess Finance Charge Collections . 54
SECTION 4.6 Allocation of Trust Assets to
Series or Groups. . . . . . . . . 54
ARTICLE V [ARTICLE V IS RESERVED AND SHALL BE SPECIFIED
IN THE SUPPLEMENT WITH RESPECT TO ANY
SERIES.]. . . . . . . . . . . . . . . . .55
ARTICLE VI THE CERTIFICATES . . . . . . . . . . . . 55
SECTION 6.1 The Certificates . . . . . . . . . 55
SECTION 6.2 Authentication of Certificates . . 56
SECTION 6.3 Registration of Transfer and Exchange
of Certificates . . . . . . . .56
SECTION 6.4 Mutilated, Destroyed, Lost or Stolen
Certificates. . . . . . . . . . . . . . .60
SECTION 6.5 Persons Deemed Owners. . . . . . . 60
SECTION 6.6 Appointment of Paying Agent. . . . 61
SECTION 6.7 Access to List of Holders' Names and
Addresses . . . . . . . . . . . . . . . .62
SECTION 6.8 Authenticating Agent . . . . . . . 62
SECTION 6.9 New Issuances. . . . . . . . . . . 63
SECTION 6.10 Book-Entry Certificates . . . . . 66
SECTION 6.11 Notices to Clearing Agency. . . . 67
SECTION 6.12 Definitive Certificates . . . . . 67
SECTION 6.13 Global Certificate; Euro-Certificate
Exchange Date. . . . . . . . .68
SECTION 6.14 Meetings of Holders . . . . . . . 68
ARTICLE VII OTHER MATTERS RELATING TO TRANSFEROR. . 68
SECTION 7.1 Liability of Transferor. . . . . . 68
SECTION 7.2 Merger or Consolidation of, or
Assumption of the Obligations of,
Transferor. . . . . . . . . . . .68
SECTION 7.3 Limitation on Liability. . . . . . 69
ARTICLE VIII OTHER MATTERS RELATING TO SERVICER . . 70
SECTION 8.1 Liability of Servicer. . . . . . . 70
SECTION 8.2 Merger or Consolidation of, or
Assumption of the Obligations
of, Servicer. . . . . . . . . . .70
SECTION 8.3 Limitation on Liability of Servicer
and Others. . . . . . . . . .. . 71
SECTION 8.4 Servicer Indemnification of the
Trust and Trustee . . . . . .. . 71
SECTION 8.5 Servicer Not to Resign . . . . . . 72
SECTION 8.6 Access to Certain Documentation
and Information Regarding the
Receivables . . . . . . . . . . .72
SECTION 8.7 Delegation of Duties . . . . . . . 73
SECTION 8.8 Examination of Records . . . . . . 73
ARTICLE IX TRUST PAY OUT EVENTS . . . . . . . . . . 73
SECTION 9.1 Trust Pay Out Events . . . . . . . 73
SECTION 9.2 Additional Rights Upon the
Occurrence of Certain Events . . 73
ARTICLE X SERVICER DEFAULTS . . . . . . . . . . . . 74
SECTION 10.1 Servicer Defaults . . . . . . . . 74
SECTION 10.2 Trustee to Act; Appointment of
Successor . . . . . . . . . . . 76
SECTION 10.3 Notification to Holders . . . . . 78
SECTION 10.4 Waiver of Past Defaults . . . . . 78
ARTICLE XI TRUSTEE. . . . . . . . . . . . . . . . . 78
SECTION 11.1 Duties of Trustee . . . . . . . . 78
SECTION 11.2 Certain Matters Affecting
Trustee . . . . . . . . . . . . 80
SECTION 11.3 Trustee Not Liable for Recitals in
Certificates . . . . . . . . . .81
SECTION 11.4 Trustee May Not Own Certificates. 82
SECTION 11.5 Servicer to Pay Trustee's Fees
and Expenses . . . . . . . . . .82
SECTION 11.6 Eligibility Requirements for
Trustee . . . . . . . . . . . . 82
SECTION 11.7 Resignation or Removal of Trustee.83
SECTION 11.8 Successor Trustee . . . . . . . . 83
SECTION 11.9 Merger or Consolidation of
Trustee . . . . . . . . . . . . 84
SECTION 11.10 Appointment of Co-Trustee or
Separate Trustee . . . . .. . .84
SECTION 11.11 Tax Returns. . . . . . . . . . . 85
SECTION 11.12 Trustee May Enforce Claims Without
Possession of Certificate. . . 86
SECTION 11.13 Suits for Enforcement. . . . . . 86
SECTION 11.14 Rights of Holders to Direct
Trustee . . . . . . . . . . . .86
SECTION 11.15 Representations and Warranties
of Trustee . . . . . . . . . . 87
SECTION 11.16 Maintenance of Office or Agency. 87
ARTICLE XII TERMINATION . . . . . . . . . . . . . . 87
SECTION 12.1 Termination of Trust. . . . . . . 87
SECTION 12.2 Optional Purchase . . . . . . . . 88
SECTION 12.3 Final Payment with Respect to
any Series . . . . . . . . . . .89
SECTION 12.4 Termination Rights of Holder of
Transferor Certificate. . . . . 90
SECTION 12.5 Defeasance. . . . . . . . . . . . 90
ARTICLE XIII MISCELLANEOUS PROVISIONS . . . . . . . 92
SECTION 13.1 Amendment . . . . . . . . . . . . 92
SECTION 13.2 Protection of Right, Title and
Interest to Trust.. . . . . . . 93
SECTION 13.3 Limitation on Rights of Holders . 95
SECTION 13.4 GOVERNING LAW . . . . . . . . . . 96
SECTION 13.5 Notices . . . . . . . . . . . . . 96
SECTION 13.6 Severability of Provisions. . . . 96
SECTION 13.7 Assignment. . . . . . . . . . . . 97
SECTION 13.8 Certificates Non-Assessable and
Fully Paid. . . . . . . . . . . 97
SECTION 13.9 Further Assurances. . . . . . . . 97
SECTION 13.10 No Waiver; Cumulative Remedies . 97
SECTION 13.11 Counterparts . . . . . . . . . . 97
SECTION 13.12 Third-Party Beneficiaries. . . . 97
SECTION 13.13 Actions by Holders . . . . . . . 97
SECTION 13.14 Rule 144A Information. . . . . . 98
SECTION 13.15 Merger and Integration . . . . . 98
SECTION 13.16 Headings . . . . . . . . . . . . 98
SECTION 9.2 Additional Rights Upon the
Occurrence of Certain Events. . .I-1
EXHIBITS
Exhibit A Form of Transferor Certificate
Exhibit B Form of Assignment of Receivables in
Additional Accounts
Exhibit C Form of Monthly Servicer's Certificate
Exhibit D Form of Annual Servicer's Certificate
Exhibit E Form of Opinion of Counsel Regarding
Additional Accounts
Exhibit F Form of Annual Opinion of Counsel
Exhibit G Form of Reassignment of Receivables
Exhibit H Form of Reconveyance of Receivables
Exhibit I Form of Amended Section 9.2
POOLING AND SERVICING AGREEMENT, dated as of ____________
__, 1997, by and between FIRST NATIONAL BANK OF COMMERCE, a
national banking association, as Transferor and Servicer, and
_________________________, a [[_____________] banking
corporation], as Trustee.
In consideration of the mutual agreements herein
contained, each party agrees as follows for the benefit of the
other parties and the Holders:
ARTICLE I DEFINITIONS
SECTION 1.1 Definitions. Whenever used in this
Agreement, the following words and phrases have the meanings
identified below:
"Account" means each VISA(R), MasterCard(R)* and Private
Label credit card account serviced at the New Orleans area
servicing centers of Transferor, or at such other servicing
center of Transferor as shall be designated by Transferor or
Servicer pursuant to subsection 13.2(c), established pursuant
to an Account Agreement and which is identified in an Account
Schedule delivered to Trustee by Transferor pursuant to
Section 2.1 or 2.6. The term "Account" also (i) includes each
Transferred Account, (ii) includes an Additional Account only
from and after its Addition Date and (iii) includes a Removed
Account only prior to its Removal Date.
--------------------------------
* VISA(R) and MasterCard(R) are registered servicemarks of
VISA U.S.A., Inc. and of MasterCard International
Inc., respectively.
"Account Agreement" means the agreement between any
Obligor and Transferor governing the operation of the
Obligor's Account, as each such agreement may be amended,
modified or otherwise changed from time to time in accordance
with Section 2.5(c).
"Account Guidelines" means Transferor's policies and
procedures relating to the operation of its credit card
business and the Accounts, including policies and procedures
for determining the creditworthiness of Obligors, the
extension of credit to Obligors and the maintenance of credit
card accounts and any other Accounts and collection of credit
card receivables and any other Receivables, as such policies
and procedures may be amended from time to time in accordance
with Section 2.5(c).
"Account Schedule" means a computer file or microfiche
list containing an accurate list of Accounts, identified by
account number and setting forth the Receivable balance as of
(a) the Cut-Off Date (for the Account Schedule delivered on
the Initial Closing Date), (b) the related Addition Cut-Off
Date (for any Account Schedule delivered in connection with
any designation of Additional Accounts) or (c) the end of the
prior Monthly Period (for any Account Schedule relating to
Transferred Accounts).
"Addition Cut-Off Date" means the date as of which any
Additional Accounts or Participations are designated for
inclusion in the Trust, as specified in the related
Assignment.
"Addition Date" means (a) as to Additional Accounts, the
date on which the Receivables in such Additional Accounts are
conveyed to the Trust pursuant to subsection 2.6(a) or (b),
and (b) as to Participations, the date from and after which
such Participations are to be included as Trust Assets
pursuant to subsection 2.6(a) or (b).
"Additional Account" is defined in subsection 2.6(a).
"Adjusted Aggregate Investor Interest" means as of any
date of determination, the sum of the "Adjusted Investor
Interest" (as defined in the related Supplement) of each
Series then issued and outstanding for which an Adjusted
Investor Interest is specified in the related Supplement plus
the sum of the Investor Interests of all other Series then
issued and outstanding.
"Adjusted Investor Interest" with respect to any Series,
has the meaning specified in the related Supplement, or if not
so specified, the Investor Interest of such Series.
"Affiliate" of any Person means any other Person
controlling, controlled by or under common control with such
Person.
"Aggregate Finance Charge Receivables" means, as of any
date of determination, the aggregate amount of the Finance
Charge Receivables, measured for each Account as of the end of
the applicable Billing Cycle ending in the Monthly Period
immediately preceding such date of determination.
"Aggregate Investor Interest" means, as of any date of
determination, the sum of the Investor Interests of all Series
then issued and outstanding.
"Aggregate Investor Percentage" means, as to Principal
Receivables, Finance Charge Receivables and Receivables in
Defaulted Accounts, as the case may be, as of any date of
determination, the sum (not to exceed 100%) of the relevant
Investor Percentages for all Series then issued and
outstanding.
"Aggregate Principal Receivables" means the aggregate
amount of the Principal Receivables, measured (a) for any date
of determination prior to the Conversion Date, for each
Account as of the end of the applicable Billing Cycle ending
in the Monthly Period immediately preceding such date of
determination and (b) for any other date of determination, as
of the end of the day on such date of determination.
"Aggregate Receivables" means, as of any date of
determination, the aggregate amount of the Receivables,
measured for each Account as of the end of the applicable
Billing Cycle ending in the Monthly Period immediately
preceding such date of determination.
"Agreement" means this Pooling and Servicing Agreement,
as amended, supplemented or otherwise modified from time to
time, including by any Supplement.
"Amortization Period" means, as to any Series or Class,
any period specified in the related Supplement during which
principal collections are set aside to repay the principal
investment in that Series or Class (excluding repayments of a
Variable Interest during its revolving period).
"Annual Account Fee" means amounts referred to as "annual
account fees," "annual fees," "annual membership fees" or
"inactivity charges" (or similar terms) in the Account
Agreement applicable to any Account.
"Applicants" is defined in Section 6.7.
"Assignment" is defined in subsection 2.6(d)(ii).
"Authorized Newspaper" means a newspaper 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.
"Automatic Additional Account" means Additional Accounts
that are treated as Automatic Additional Accounts pursuant to
subsection 2.6(c).
"Bank Portfolio" means all VISA, MasterCard, Private Label
and other revolving credit accounts owned by Transferor.
"Bearer Certificates" is defined in Section 6.1.
"Bearer Rules" means the provisions of the Internal
Revenue 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.
"Benefit Plan" is defined in subsection 6.3(e).
"BIF" means the Bank Insurance Fund administered by the
FDIC.
"Billed Finance Charge Receivables" is defined in
subsection 4.3(d).
"Billed Principal Receivables" is defined in subsection
4.3(d).
"Billing Cycle" means, with respect to any Account, the
monthly billing cycle for such Account, determined in
accordance with the Account Guidelines.
"Book-Entry Certificates" means certificates evidencing
a beneficial interest in the Investor Certificates, ownership
and transfers of which shall be made through book entries by
a Clearing Agency as described in Section 6.10.
"Business Day" means any day other than a Saturday, a
Sunday or a day on which banking institutions in New York, New
York, or New Orleans, Louisiana (or, for any Series, any
additional city specified in the related Supplement) are
authorized or obligated by law or executive order to be
closed.
"Cash Advance Fees" means amounts referred to as "cash
advance fees," "cash access / cash advance fees," "cash access
fees," "transaction fees for cash advances," or "cash advance
charges" (or similar terms) in the Account Agreement
applicable to any Account.
"CEDEL" means Cedel Bank, societe anonyme.
"Certificate" means an Investor Certificate, the
Transferor Certificate or any Supplemental Certificate.
"Certificate Owner" means the beneficial owner of a
Book-Entry Certificate, as reflected on the books of the
Clearing Agency or of a Person maintaining an account with the
Clearing Agency (directly or as an indirect participant).
"Certificate Register" is defined in Section 6.3.
"Class" means any class of Investor Certificates of any
Series.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934.
"Clearing Agency Participant" means a broker, dealer,
bank, other financial institution or other Person for whom
from time to time a Clearing Agency or Foreign Clearing Agency
effects book-entry transfers and pledges of securities
deposited with the Clearing Agency or Foreign Clearing Agency.
"Closing Date" means, for any Series, the date of issuance
of such Series of Certificates, as specified in the related
Supplement.
"Collected Finance Charge Receivables" is defined in
subsection 4.3(d).
"Collected Principal Receivables" is defined in subsection
4.3(d).
"Collection Account" is defined in subsection 4.2(a).
"Collection Recomputation Date" is defined in subsection
4.3(d).
"Collections" means all payments (including Insurance
Proceeds and Recoveries) received by Servicer in respect of
the Receivables, in the form of cash, checks, wire transfers,
ATM transfers or any other form of payment in accordance with
the Account Agreement in effect from time to time on any
Receivables.
"Conversion Date" means the date specified in a notice
from Servicer to Trustee and each Rating Agency as the date
upon which Servicer elects to begin administering this
Agreement on the basis of daily computations of the aggregate
amounts of Principal Receivables and Finance Charge
Receivables, rather than by reference to balances at the end
of each Billing Cycle which ends during each Monthly Period.
Any such notice shall be delivered (or not delivered) at
Servicer's sole option.
"Corporate Trust Office" means the principal office of
Trustee at which at any particular time its corporate trust
business is administered, which office at the date of this
Agreement is located at [_______________________________].
"Coupons" is defined in Section 6.1.
"Credit Adjustment" is defined in subsection 4.3(c).
"Credit Enhancement" means, as to any Series, the
subordination, cash collateral guaranty or account, collateral
interest, letter of credit, surety bond, insurance policy,
spread account, reserve account, cross-support feature or any
other contract or agreement for the benefit of the Holders of
such Series (or Holders of a Class within such Series) as
designated in the applicable Supplement.
"Credit Enhancement Provider" means, as to any Series, any
Person designated as such in the related Supplement.
"Cut-Off Date" means _______________ __, 1997.
"Date of Processing" means, as to any transaction, the
date on which such transaction is first recorded on Servicer's
computer master file of VISA, Mastercard and Private Label
accounts (without regard to the effective date of such
recordation).
"Default Amount" means, as to any Defaulted Account, the
amount of Principal Receivables (other than Ineligible
Receivables) in such Defaulted Account on the day it became a
Defaulted Account.
"Defaulted Account" means each Account as to which, in
accordance with the Account Guidelines or Servicer's customary
and usual servicing procedures for servicing credit card or
other receivables comparable to the Receivables, Servicer has
charged off the Receivables in such Account as uncollectible.
An Account shall become a Defaulted Account on the day on
which such Receivables are recorded as charged off as
uncollectible on Servicer's computer master file of VISA,
MasterCard and Private Label accounts. Notwithstanding any
other provision hereof, any Receivables in a Defaulted Account
that are Ineligible Receivables shall be treated as Ineligible
Receivables rather than Receivables in Defaulted Accounts.
"Defeasance" is defined in Section 12.4.
"Defeased Series" is defined in Section 12.4.
"Definitive Certificates" is defined in Section 6.10.
"Depository" is defined in Section 6.10.
"Depository Agreement" means, as to each Series (subject
to the related Supplement), the agreement among Transferor,
Trustee and the applicable Clearing Agency or Foreign Clearing
Agency.
"Determination Date" means, unless otherwise specified in
the related Supplement, the third Business Day prior to each
Transfer Date.
"Discount Option Receivables" is defined in Section 2.8.
"Discount Option Receivables Amount" means, on any date
of determination on and after the date on which Transferor's
exercise of its discount option pursuant to Section 2.8 takes
effect, the excess of (a) the aggregate Discount Option
Receivables created on or prior to such date (which amount,
prior to the date on which Transferor's exercise of its
discount option takes effect and with respect to Receivables
generated prior to such date, shall be zero), over (b) any
Discount Option Receivables Collections received on or prior
to such date.
"Discount Option Receivables Collections" means on any
Date of Processing on and after the date on which Transferor's
exercise of its discount option pursuant to Section 2.8 takes
effect, the product of (a) a fraction the numerator of which
is the Discount Option Receivables Amount and the denominator
of which is the sum of the Principal Receivables plus the
Discount Option Receivables Amount, in each case (for both
numerator and denominator) at the end of the prior Monthly
Period, and (b) Collections of Principal Receivables, prior to
any reduction for Discount Option Receivables, received on
such Date of Processing.
"Discount Percentage" is defined in Section 2.8.
"Distribution Account" is defined in subsection 4.2(c).
"Distribution Date" is defined, for each Series, in the
related Supplement.
"Dollars", "$" or "U.S. $" means United States dollars.
"Eligible Account" means, as of the Cut-Off Date (or, as
to Additional Accounts, as of the relevant Addition Date), a
VISA, Mastercard, Private Label or other revolving credit
account in the Bank Portfolio that:
(a) is in existence and maintained with Transferor;
(b) is payable in Dollars;
(c) has as its most recent billing address an
address located in the United States or its territories
or possessions or a Military Address; provided that an
Account having as its most recent billing address an
address which is not located in the United States or its
territories or possessions or at a Military Address shall
not be deemed to be ineligible pursuant to this clause
(c) at any time of determination to the extent that the
aggregate amount of all such Accounts shall be less than
3% of the aggregate amount of all Accounts at such time;
(d) except as provided below, Transferor has not
classified on its electronic records as counterfeit,
fraudulent, stolen or lost; and
(e) Transferor has not charged off in its
customary and usual manner for charging off such
Accounts.
Notwithstanding the foregoing, Eligible Accounts may include
accounts which have been identified by the Obligor as having
been incurred as a result of fraudulent use of credit cards or
with respect to any credit cards which have been reported to
Transferor as lost or stolen, so long as (1) the balance of
all receivables included in such accounts is reflected as zero
on the books and records of Transferor and (2) charging
privileges with respect to all such accounts have been
canceled and are not reinstated.
"Eligible Receivable" means a Receivable:
(a) that has arisen under an Eligible Account;
(b) that was created in compliance, in all
material respects, with (and pursuant to an Account
Agreement that complies, in all material respects, with)
all Requirements of Law applicable to Transferor;
(c) as to which all consents, licenses, approvals
or authorizations of, or registrations or declarations
with, any Governmental Authority required to be obtained,
effected or given by Transferor in connection with the
creation of such Receivable or the execution, delivery
and performance by Transferor of the Account Agreement
pursuant to which such Receivable was created, have been
duly obtained, effected or given and are in full force
and effect as of such date of creation;
(d) as to which, at the time of and at all times
after the creation of such Receivable, Transferor or the
Trust had good and marketable title, free and clear of
all Liens arising under or through Transferor or any of
its Affiliates (other than Liens permitted by subsection
2.5(b));
(e) that is the legal, valid and binding payment
obligation of the Obligor thereon, enforceable against
such Obligor in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar
laws, now or hereafter in effect, affecting the
enforcement of creditors' rights in general and except as
such enforceability may be limited by general principles
of equity (whether considered in a suit at law or in
equity); and
(f) that constitutes an "account," a "general
intangible" or "chattel paper."
"ERISA" means the Employee Retirement Income Security Act
of 1974.
"Euroclear Operator" means Xxxxxx Guaranty Trust Company
of New York, Brussels, Belgium office, as operator of the
Euroclear System.
"Excess Allocation Series" means any series that is
designated as an Excess Allocation Series in the related
Supplement.
"Excess Finance Charge Collections" means, with respect
to any Transfer Date, the aggregate amount for all outstanding
Excess Allocation Series that the related Supplements specify
are to be treated as "Excess Finance Charge Collections" for
such Transfer Date.
"Excess Funding Account" is defined in subsection 4.2(b).
"Extended Trust Termination Date" is defined in subsection
12.1(a).
"FDIC" means the Federal Deposit Insurance Corporation.
"Finance Charge Account" is defined in subsection 4.2(b).
"Finance Charge Receivables" means Receivables created in
respect of the Periodic Finance Charges, Cash Advance Fees,
Annual Account Fees, Late Fees, Overlimit Fees, NSF Fees,
closed account maintenance charges and similar fees and
charges, including charges for Special Fees to the extent such
Special Fees are categorized as Finance Charge Receivables,
and Discount Option Receivables. Except as otherwise
specified in any Supplement, Net Recoveries shall be treated
as Collections of Finance Charge Receivables. Collections of
Finance Charge Receivables with respect to any Monthly Period
shall also include (a) Discount Option Receivables Collections
(if any) with respect to such Monthly Period, (b) the amount
of Interchange (if any), Other Account Revenues (if any) and
other amounts allocable to any Series of Certificates pursuant
to any Supplement with respect to such Monthly Period (to the
extent received by the Trust and deposited into the Finance
Charge Account or any Series Account, as the case may be, on
the Transfer Date following such Monthly Period), and (c) all
interest and other investment earnings (net of losses and
investment expenses) accrued on or prior to the related
Transfer Date in connection with the investment of funds on
deposit in the Collection Account, the Distribution Account,
the Excess Funding Account and the Finance Charge Account.
"Finance Charge Shortfalls" is defined, for any Series,
in the related Supplement.
"First NBC" means First National Bank of Commerce, a
national banking association.
"Fitch" means Fitch Investors Service, L.P.
"Foreign Clearing Agency" means CEDEL and the Euroclear
Operator.
"Global Certificate" is defined in Section 6.13.
"Governmental Authority" means the United States of
America, any state or other political subdivision thereof and
any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Group" means, as to any Series, the group of Series in
which the related Supplement specifies that such Series shall
be included.
"Holder" means the Person in whose name a Certificate is
registered in the Certificate Register and, if applicable, the
holder of any Bearer Certificate or Coupon, as the case may
be, and, as to any Series, such other Person deemed to be an
"Investor Holder" or "Holder" in any related Supplement except
as otherwise provided in such Supplement.
"Ineligible Receivable" is defined in subsection
2.4(d)(iii).
"Initial Closing Date" means ____________________ __,
1997.
"Initial Investor Interest" means, as to any Series, the
amount stated in the related Supplement.
"Insolvency Event" is defined in Section 9.2.
"Insurance Proceeds" means any amounts recovered by
Servicer pursuant to any credit insurance policies covering
any Obligor with respect to Receivables under such Obligor's
Account.
"Interchange" means interchange fees payable to
Transferor, in its capacity as credit card issuer, through
VISA U.S.A., Inc. and Mastercard International Inc.
"Internal Revenue Code" means the Internal Revenue Code
of 1986.
"Investment Company Act" means the Investment Company Act
of 1940.
"Investor Account" means each of the Finance Charge
Account, the Excess Funding Account and the Distribution
Account.
"Investor Certificate" means any one of the certificates
(including Bearer Certificates, Registered Certificates and
Global Certificates) executed by Transferor and authenticated
by Trustee substantially in the form (or forms in the case of
a Series with multiple Classes) attached to the related
Supplement and such other interest in the Trust deemed to be
an "Investor Certificate" in any related Supplement except as
otherwise provided in such Supplement.
"Investor Holder" means the holder of record of an
Investor Certificate.
"Investor Interest" is defined, as to any Series, in the
related Supplement.
"Investor Issuance" is defined in subsection 6.9(b).
"Investor Percentage" is defined, as to any Series, in the
related Supplement.
"Investor Servicing Fee" is defined in Section 3.2.
"Issuance" means either of the procedures described under
subsection 6.9(b).
"Issuance Date" is defined in subsection 6.9(b).
"Issuance Notice" is defined in subsection 6.9(b).
"Late Fees" means amounts referred to as "late fees," "late
charges" or "late payment fees" (or similar terms) in the
Account Agreement applicable to any Account.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, participation or equity interest,
deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever,
including any conditional sale or other title retention
agreement, any financing lease having substantially the same
economic effect as any of the foregoing and the filing of any
financing statement under the UCC (other than any such
financing statement filed for informational purposes only) or
comparable law of any jurisdiction to evidence any of the
foregoing; provided that any assignment pursuant to Section
7.2 shall not be deemed to constitute a Lien.
"Military Address" means any mailing address on any United
States armed forces military base of operations, including but
not limited to APO and FPO addresses.
"Minimum Aggregate Principal Receivables" means, unless
otherwise provided in a Supplement relating to a Paired Series
(with respect to the Paired Series), as of any date of
determination, an amount equal to the sum of the numerators
used to calculate the Investor Percentages with respect to the
allocation of Collections of Principal Receivables for each
Series outstanding on such date.
"Minimum Transferor Interest" means the Minimum Transferor
Percentage of the Aggregate Principal Receivables.
"Minimum Transferor Percentage" means ___%; provided that
Transferor may increase or reduce the Minimum Transferor
Percentage upon (a) 30 days' prior notice to Trustee, each
Rating Agency and any Credit Enhancement Provider entitled to
receive such notice pursuant to the relevant Supplement, (b)
satisfaction of the Rating Agency Condition, and (c) delivery
to Trustee and each such Credit Enhancement Provider of an
Officer's Certificate stating that Transferor reasonably
believes that such increase or reduction will not, based on
the facts known to such officer at the time of such
certification, then or thereafter cause a Pay Out Event to
occur with respect to any Series.
"Monthly Period" means, unless otherwise defined in any
Supplement, each period from and including the first day of a
calendar month to and including the last day of that calendar
month.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Default Amount" means, for any Monthly Period, the
excess (if any) of (a) the amount of Receivables in Accounts
that became Defaulted Accounts during such Monthly Period over
(b) all Recoveries received during such Monthly Period.
"Net Recoveries" means, for any Monthly Period, the excess
(if any) of (a) all Recoveries received during such Monthly
Period over (b) the amount of Receivables in Accounts that
became Defaulted Accounts during such Monthly Period.
"Notice Date" is defined in subsection 2.6(d)(i).
"NSF Fees" means charges assessed against any Obligor
pursuant to the related Account Agreement on account of the
return of checks for non-sufficient funds.
"Obligor" means, as to any Account, the Person or Persons
obligated to make payments on that Account, including any
guarantor.
"Officer's Certificate" means a certificate signed by any
Vice President or more senior officer of Transferor or
Servicer and delivered to Trustee.
"Other Account Revenues" means amounts received by
Transferor (a) from any third party in consideration of the
inclusion of advertising inserts with monthly statements
relating to accounts in the Bank Portfolio, (b) from issuers
of credit insurance policies on account of experience rebates
or similar amounts related to obligors on accounts included in
the Bank Portfolio and (c) from any other Person on account of
revenues related to the Accounts, to the extent (in the case
of this clause (c)) that Transferor designates such amounts to
be treated as "Other Account Revenues" in an Officer's
Certificate.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for or an employee of the Person providing
the opinion, and who shall be reasonably acceptable to
Trustee.
"Overlimit Fees" means amounts referred to as "overlimit
fees," "overlimit charges," or "exceeding the credit limit fees"
(or similar terms) in the Account Agreement applicable to any
Account.
"Paired Series" means each Series that has been paired
with another Series (one of which Series may be prefunded or
partially prefunded) such that a reduction of the Adjusted
Investor Interest of one Series results in an increase of the
Investor Interest of the other Series.
"Participations" is defined in subsection 2.6(a).
"Paying Agent" means any paying agent appointed pursuant
to Section 6.6 and shall initially be Trustee.
"Pay Out Event" means each Trust Pay Out Event and, as to
any Series, each other "Pay Out Event," if any, described in
the Supplement for such Series.
"Periodic Finance Charges" means amounts referred to as
"finance charges" (or similar terms) in the Account Agreement
applicable to any Account.
"Permitted Investments" means, unless otherwise provided
in the Supplement with respect to any Series: (a) book-entry
securities or negotiable instruments or securities represented
by instruments in bearer or registered form which evidence (i)
obligations of or fully guaranteed by the United States of
America, (ii) demand deposits, time deposits or certificates
of deposit of any depository institution or trust company
incorporated under the laws of the United States of America or
any state thereof or domestic branches of foreign banks and
subject to supervision and examination by Federal or state
banking or depository institution authorities, provided that
at the time of the Trust's investment or contractual
commitment to invest therein, the certificates of deposit or
short-term deposits of such depository institution or trust
company shall have a credit rating from Moody's and Standard
& Poor's of P-1 and A-1+, respectively, (iii) commercial paper
having, at the time of the Trust's investment or contractual
commitment to invest therein, a rating from Moody's and
Standard & Poor's of P-1 and A-1+, respectively, and, if rated
by Fitch, F-1+ by Fitch, (iv) bankers' acceptances issued by
any depository institution or trust company described in
clause (a)(ii), (v) investments in money market funds rated
AAA-m or AAA-mg by Standard & Poor's and P-1 by Moody's and,
if rated by Fitch, AAA by Fitch, if such investment will not
require the Trust to register as an "investment company" under
the Investment Company Act, and (vi) repurchase obligations
with respect to (A) any security described in clause (a)(i) or
(B) any other security issued or guaranteed by an agency or
instrumentality of the United States of America, in either
case entered into with a depository institution or trust
company (acting as principal) described in clause (a)(ii); (b)
demand deposits in the name of the Trust or Trustee in any
depository institution or trust company described in clause
(a)(ii); and (c) any other investment if (i) the Rating Agency
Condition has been satisfied and (ii) purchase of such
investment will not require the Trust to be registered as an
investment company under the Investment Company Act.
"Person" means any legal person, including any individual,
corporation, limited liability company, partnership, joint
venture, association, joint-stock company, trust,
unincorporated organization, governmental entity or other
entity of similar nature.
"Principal Receivable" means each Receivable other than
(without duplication) (a) Finance Charge Receivables and (b)
Receivables in Defaulted Accounts. A Receivable shall be
deemed to have been created at the end of the day on the Date
of Processing of such Receivable. In calculating the aggregate
amount of Principal Receivables on any day, the amount of
Principal Receivables shall be reduced by the aggregate amount
of credit balances in the Accounts on such day. Any
Receivables which Transferor is unable to transfer as provided
in subsection 2.5(d)(i) shall not be included in calculating
the aggregate amount of Principal Receivables.
"Principal Sharing Series" means a Series designated
pursuant to the related Supplement as a Principal Sharing
Series which is entitled to receive Shared Principal
Collections.
"Principal Terms" is defined in subsection 6.9(c).
"Private Label" is the generic term used in this Agreement
to refer to revolving credit card accounts opened by
Transferor in connection with any of its military affinity
programs which are not MasterCard or VISA accounts.
"Qualified Institution" is defined in subsection 4.2(a).
"Rating Agency" means, as to each Series, the rating
agency or agencies, if any, specified in the related
Supplement.
"Rating Agency Condition" means, as to any event or
condition, receipt by Transferor from each Rating Agency that
such event or condition will not result in a downgrade or
withdrawal of its then current rating of any outstanding
Series.
"Reassignment" is defined in subsection 2.7(b)(ii).
"Reassignment Date" is defined in subsection 2.4(e).
"Receivable" means any amount owing by the Obligors under
the Account Agreements, including amounts owing for the
purchase of goods and services, cash advances, access checks,
Annual Account Fees, Cash Advance Fees, Periodic Finance
Charges, Late Fees, Overlimit Fees, NSF Fees and credit
insurance premiums and Special Fees, if any.
"Record Date" means, with respect to any Distribution
Date, the last Business Day of the preceding Monthly Period.
"Recoveries" means all amounts, including Insurance
Proceeds, received by Servicer with respect to Receivables in
Defaulted Accounts, less related expenses of outside
collection agencies.
"Registered Certificates" is defined in Section 6.1
"Removal Date" is defined in subsection 2.7(a).
"Removal Notice Date" is defined in subsection 2.7(a).
"Removed Accounts" is defined in subsection 2.7(a).
"Requirements of Law" for any Person means the certificate
of incorporation or articles of association and by-laws or
other organizational or governing documents of such Person,
and any law, treaty, rule or regulation, or determination of
an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such
Person is subject, whether Federal, state or local (including
usury laws, the Federal Truth in Lending Act and Regulation Z
and Regulation B of the Board of Governors of the Federal
Reserve System).
"Responsible Officer" means any officer within the
Corporate Trust Office (or any successor group of Trustee),
including any Vice President, any Assistant Secretary or any
other officer of Trustee customarily performing functions
similar to those performed by any person who at the time shall
be an above-designated officer and any particular officer to
whom any corporate trust matter is referred because of such
officer's knowledge of and familiarity with the particular
subject.
"Retention Condition" means:
(a) on any day on and after the Conversion Date,
either (i) the Transferor Interest is less than the
Minimum Transferor Interest or (ii) the sum of Aggregate
Principal Receivables and the principal amount on deposit
in the Excess Funding Account is less than the Minimum
Aggregate Principal Receivables (in each case determined
after giving effect to any transfer of Principal
Receivables to the Trust on such day); or
(b) on any day prior to the Conversion Date,
either (i)(A) the sum of the aggregate amount of
Receivables and the principal amount on deposit in the
Excess Funding Account at the end of the day immediately
prior to such date of determination, minus the Adjusted
Aggregate Investor Interest at the end of such preceding
day, minus the outstanding principal amount of all
Supplemental Certificates (and any purchased interest
sold pursuant to subsection 6.9(d)) at the end of such
preceding day is less than (B) __% [Minimum Transferor
Percentage minus __%] of the aggregate amount of
Receivables at the end of the day immediately prior to
such date of determination, or (ii)(A) the sum of (1) the
product of 0.___ times the aggregate amount of
Receivables plus (2) the principal amount on deposit in
the Excess Funding Account, in each case at the end of
the day immediately prior to such date of determination
is less than (B) the Minimum Aggregate Principal
Receivables (in the case of both clauses (i) and (ii)
determined after giving effect to any transfer of
Receivables to the Trust on such day).
"SAIF" means the Savings Association Insurance Fund
administered by the FDIC.
"Securities Act" means the Securities Act of 1933.
"Series" means any series of Investor Certificates issued
pursuant to a Supplement.
"Series Account" means any account established pursuant
to a Supplement for the benefit of the related Series.
"Series Principal Shortfall" is defined, as to any Series,
in the related Supplement.
"Series Servicing Fee Percentage" is defined, as to any
Series, in the related Supplement.
"Series Termination Date" is defined, as to any Series,
in the related Supplement.
"Servicer" means (a) initially First NBC and (b) after any
Person is appointed as Successor Servicer, such Person as
herein provided to service the Receivables.
"Servicer Default" is defined in Section 10.1.
"Servicer Letter of Credit" is defined in subsection
4.3(a).
"Servicing Fee" is defined in Section 3.2.
"Servicing Officer" means any officer of Servicer involved
in, or responsible for, the administration and servicing of
the Receivables whose name appears on a list of servicing
officers furnished to Trustee by Servicer, as such list may be
amended from time to time.
"Shared Principal Collections" means, with respect to any
Transfer Date, the aggregate amount for all outstanding
Principal Sharing Series that the related Supplements specify
are to be treated as "Shared Principal Collections" for such
Transfer Date.
"Special Fees" means fees which are not now but from time
to time may be assessed on the Accounts. On or after the date
on which any of such Special Fees begin to be assessed on the
Accounts, Transferor may designate in an Officer's Certificate
whether such Special Fees shall be treated as Principal
Receivables or Finance Charge Receivables.
"Standard & Poor's" means Standard & Poor's Ratings
Services, a division of The McGraw Hill Companies, Inc.
"Successor Servicer" is defined in subsection 10.2(a).
"Supplement" means, as to any Series or Supplemental
Certificate, a supplement to this Agreement executed in
conjunction with any issuance of that Series or Supplemental
Certificate.
"Supplemental Certificate" is defined in subsection
6.3(b).
"Tax Opinion" means, as to any action, an Opinion of
Counsel to the effect that, for Federal income tax purposes,
(a) such action will not adversely affect the tax
characterization as debt of Investor 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 Investor Certificates would be characterized as debt, (b)
such action will not cause the Trust to be classified, for
Federal income tax purposes, as an association (or publicly
traded partnership) taxable as a corporation and (c) such
action will not cause or constitute an event in which gain or
loss would be recognized by any Investor Holder.
"Termination Notice" is defined in Section 10.1.
"Transfer Agent and Registrar" is defined in Section 6.3
and shall initially be Trustee's Corporate Trust Office.
"Transfer Date" means, unless otherwise specified in the
related Supplement, with respect to any Series, the Business
Day immediately prior to each Distribution Date.
"Transferor" means First NBC.
"Transferor Certificate" means the certificate executed
by Transferor and authenticated by Trustee, substantially in
the form of Exhibit A. At any time there shall be only one
Transferor Certificate.
"Transferor Interest" means, on any date of determination,
the result (but not less than zero) of (a) the sum of the
aggregate amount of Principal Receivables and the principal
amount on deposit in the Excess Funding Account at the end of
the day immediately prior to such date of determination, minus
(b) the Adjusted Aggregate Investor Interest at the end of
such preceding day, minus (c) the outstanding principal amount
of any purchased interest sold pursuant to subsection 6.9(d)
at the end of such preceding day.
"Transferor Issuance" is defined in subsection 6.9(b).
"Transferor Percentage" means, on any date of
determination, when used with respect to Principal
Receivables, Finance Charge Receivables and Receivables in
Defaulted Accounts, a percentage equal to 100% minus the
Aggregate Investor Percentage with respect to such categories
of Receivables.
"Transferor Servicing Fee" is defined in Section 3.2.
"Transferred Account" means (a) an Account with respect
to which a new credit account number has been issued by
Servicer or Transferor under circumstances resulting from a
lost or stolen credit card or from the transfer from one
affinity group to another affinity group and not requiring
standard application and credit evaluation procedures under
the Account Guidelines or (b) an Eligible Account resulting
from the conversion of an Account that was a standard account
to a premium account or from a premium account to a standard
account, and which in either case can be traced or identified
by accessing Transferor's computer files by reference to or by
way of an Account Schedule delivered to Trustee pursuant to
Section 2.1 or 2.6 or pursuant to this definition as an
account into which an Account has been transferred. A
Transferred Account shall not be treated as an Automatic
Additional Account for purposes of this Agreement or any
Supplement.
"Trust" means the trust created by this Agreement, which
shall be known as the First NBC Credit Card Master Trust, and
the corpus of which is the Trust Assets.
"Trust Assets" means the Receivables now existing or
hereafter created and arising in connection with the Accounts,
all monies due or to become due with respect to such
Receivables (including all Finance Charge Receivables and
Recoveries), all proceeds (as defined in Section 9-306 of the
UCC as in effect in the State of Louisiana) of such
Receivables and Insurance Proceeds relating to the
Receivables, and all proceeds (as defined in Section 9-306 of
the UCC as in effect in the State of Louisiana) thereof, the
right to receive certain amounts paid or payable as
Interchange (if provided for in any Supplement), such funds as
from time to time are deposited in the Collection Account, the
Finance Charge Account, the Excess Funding Account, the
Distribution Account and any Series Account and the rights to
any Credit Enhancement with respect to any Series.
"Trust Extension" is defined in subsection 12.1(a).
"Trust Pay Out Event" is defined in Section 9.1.
"Trust Termination Date" means the earliest to occur of
(a) unless a Trust Extension shall have occurred, the first
Business Day after the Distribution Date with respect to any
Series following the date on which funds shall have been
deposited in the Distribution Account or the applicable Series
Account for the payment of Investor Holders of each Series
then issued and outstanding sufficient to pay in full such
Certificates, (b) if a Trust Extension shall have occurred,
the Extended Trust Termination Date and (c) a day which is 21
years less one day after the death of the officers and the
last survivor of all the lineal descendants of every officer
of Trustee who are living on the date hereof; provided,
however, that if at any time any rights, privileges or options
under the Trust shall be or become valid under applicable law
for a period subsequent to the 21st anniversary of the death
of such last survivor or without limiting the generality of
the foregoing, if legislation shall become effective providing
for the validity or permitting the effective grant of such
rights, privileges and options for a period in gross,
exceeding the period for which such rights, privileges and
options are stated to extend and be valid pursuant to this
clause (c)), then such rights, privileges or options shall not
terminate as otherwise provided in this clause (c) but,
subject to the occurrence of the Trust Termination Date
pursuant to clause (a) or clause (b) above, shall extend to
and continue in effect, but only if such nontermination and
extension shall then be valid under applicable law, until one
day prior to such time as the same shall, under applicable
law, cease to be valid.
"Trustee" means ___________________, a [[_____________]
banking corporation], and its successors and any corporation
resulting from or surviving any consolidation or merger to
which it or its successors may be a party and any successor
trustee appointed as herein provided.
"UCC" means the Uniform Commercial Code as in effect in
any specified jurisdiction.
"Undivided Interest" means the undivided interest in the
Trust evidenced by an Investor Certificate.
"Variable Interest" means either of (a) any Investor
Certificate that is designated as a variable funding
certificate in the related Supplement and (b) any purchased
interest sold as permitted by subsection 6.9(d).
"Zero Balance Account" means, as of any date of
determination, an Account with a Receivable balance of zero
and in which there has been no activity for the twelve
calendar months preceding such date of determination.
SECTION 1.2 Other Interpretive Provisions. With respect
to any Series, all terms used and not defined herein are used
as defined in the related Supplement. All terms defined in
this Agreement shall have the defined meanings when used in
any certificate or other document delivered pursuant hereto
unless otherwise defined therein. For purposes of this
Agreement and all such certificates and other documents,
unless the context otherwise requires: (a) accounting terms
not otherwise defined in this Agreement, and accounting terms
partly defined in this Agreement to the extent not defined,
shall have the respective meanings given to them under
generally accepted accounting principles; (b) terms defined in
Article 9 of the UCC as in effect in the State of Louisiana
and not otherwise defined in this Agreement are used as
defined in that Article; (c) any reference to each Rating
Agency shall only apply to any specific rating agency if such
rating agency is then rating any outstanding Series; (d)
references to any amount as on deposit or outstanding on any
particular date means such amount at the close of business on
such day; (e) the words "hereof," "herein" and "hereunder" and
words of similar import refer to this Agreement (or the
certificate or other document in which they are used) as a
whole and not to any particular provision of this Agreement
(or such certificate or document); (f) references to any
Section, Schedule or Exhibit are references to Sections,
Schedules and Exhibits in or to this Agreement (or the
certificate or other document in which the reference is made),
and references to any paragraph, subsection, clause or other
subdivision within any Section or definition refer to such
paragraph, subsection, clause or other subdivision of such
Section or definition; (g) the term "including" means
"including without limitation"; (h) references to any law or
regulation refer to that law or regulation as amended from
time to time and include any successor law or regulation; (i)
references to any Person include that Person's successors and
assigns; and (j) headings are for purposes of reference only
and shall not otherwise affect the meaning or interpretation
of any provision hereof. The agreements, representations and
warranties of First NBC in this Agreement, in its capacities
as Transferor and Servicer, shall be deemed to be its
agreements, representations and warranties only so long as it
remains a party to this Agreement in such capacity. The
monthly Servicer certificate shall be in substantially the
form of Exhibit C, with such changes as Servicer may determine
to be necessary or desirable; provided that no such change
shall serve to exclude information required by this Agreement
or any Supplement. Servicer shall, upon making such
determination, deliver to Trustee and each Rating Agency an
Officer's Certificate to which shall be annexed the form of
the related Exhibit, as so changed. Upon the delivery of such
Officer's Certificate to Trustee, the related Exhibit, as so
changed, shall for all purposes of this Agreement constitute
such Exhibit. Trustee may conclusively rely upon such
Officer's Certificate in determining whether the related
Exhibit, as changed, conforms to the requirements of this
Agreement.
ARTICLE II CONVEYANCE OF RECEIVABLES
SECTION 2.1 Conveyance of Receivables. (a) Transferor
hereby transfers, assigns, sets-over and otherwise conveys to
Trustee, on behalf of the Trust, for the benefit of the
Holders, without recourse, all of its right, title and
interest in, to and under the Receivables now existing and
hereafter created and arising in connection with the Accounts
(other than Receivables in Additional Accounts), all monies
due or to become due with respect to such Receivables
(including all Finance Charge Receivables and Recoveries), any
collateral securing any such Receivables and Insurance
Proceeds relating to such Receivables, and all proceeds of all
of the foregoing.
(b) In connection with such transfer, assignment, set-
over and conveyance, Transferor agrees to record and file, at
its own expense, a financing statement (including any
continuation statements with respect to such financing
statement when applicable) with respect to the Receivables now
existing and hereafter created meeting the requirements of
applicable state law in such manner and in such jurisdictions
as are necessary to perfect the assignment of the Receivables
to the Trust, and to deliver a file-stamped copy of such
financing statement or continuation statement or other
evidence of such filing (which may, for purposes of this
Section 2.1, consist of telephone confirmation of such filing)
to Trustee on or prior to the date of issuance of the
Certificates (and in the case of any continuation statements
filed pursuant to this Section 2.1, as soon as practicable
after receipt thereof by Transferor). The foregoing transfer,
assignment, set-over and conveyance to the Trust shall be made
to Trustee, on behalf of the Trust, and each reference in this
Agreement to such transfer, assignment, set-over and
conveyance shall be construed accordingly.
(c) In connection with such transfer, Transferor agrees,
at its own expense, on or prior to the Initial Closing Date
(i) to indicate in its computer files that the Receivables
created in connection with the Accounts (other than any
Additional Accounts) have been transferred to Trustee, on
behalf of the Trust, pursuant to this Agreement for the
benefit of the Holders by identifying such Accounts as those
that may be accessed on Transferor's computer files through
use of the database code "T" and (ii) to deliver to Trustee an
Account Schedule relating to the initial Accounts, which is
hereby incorporated into and made a part of this Agreement.
Transferor further agrees, at its own expense, with respect to
Automatic Additional Accounts to indicate in its computer
files on or prior to the applicable Addition Date that
Receivables created in connection with each Automatic
Additional Account have been transferred to Trustee, on behalf
of the Trust, pursuant to this Agreement for the benefit of
the Holders by identifying such Accounts as those that may be
accessed on Transferor's computer files through use of the
database code "T". Transferor shall not alter the file
designations referenced in this subsection 2.1(c) with respect
to any Account during the term of this Agreement unless and
until such Account becomes a Removed Account or a Zero Balance
Account. Transferor shall hold the information to be provided
with respect to the Transferred Accounts, prior to delivery to
Trustee, in trust for the benefit of Trustee, on behalf of the
Trust.
(d) The parties intend that if, and to the extent that,
such transfer is not deemed to be a sale, Transferor shall be
deemed hereunder to have granted to Trustee, for the benefit
of the Investor Holders, a first priority perfected security
interest in all of Transferor's right, title and interest in,
to and under the Receivables now existing and hereafter
created and arising in connection with the Accounts (other
than Receivables in Additional Accounts), all monies due or to
become due with respect to such Receivables, any collateral
securing any such Receivables and all Insurance Proceeds
relating to such Receivables (including all Finance Charge
Receivables and Recoveries) and all proceeds of all of the
foregoing, that this Agreement shall constitute such a
security agreement under applicable law, and that the
Transferor Interest shall be deemed to represent Transferor's
equity in the collateral granted.
Pursuant to the request of Transferor, Trustee shall
cause Certificates in authorized denominations evidencing the
entire interest in the Trust to be duly authenticated and
delivered to or upon the order of Transferor pursuant to
Section 6.2.
SECTION 2.2 Acceptance by Trustee. (a) Trustee hereby
acknowledges its acceptance, on behalf of the Trust, of all
right, title and interest previously held by Transferor in and
to the Receivables now existing and hereafter created and
arising in connection with the Accounts (other than
Receivables in Additional Accounts), all monies due or to
become due with respect to such Receivables (including all
Finance Charge Receivables and Recoveries), any collateral
securing any such Receivables, Insurance Proceeds relating to
such Receivables and all proceeds of all of the foregoing, and
declares that it shall maintain such right, title and
interest, upon the Trust herein set forth, for the benefit of
all Holders. Trustee further acknowledges that, prior to or
simultaneously with the execution and delivery of this
Agreement, Transferor delivered to Trustee the initial Account
Schedule referred to in subsection 2.1(c).
(b) Trustee agrees not to disclose to any Person any of
the names, addresses, account numbers or other information
contained in the computer files or microfiche lists delivered
to Trustee by Transferor pursuant to Sections 2.1, 2.6 and 2.7
or any other information provided by Transferor to Trustee in
any format whatsoever except as is required in connection with
the performance of its duties hereunder or in enforcing the
rights of the Holders or to a Successor Servicer appointed
pursuant to Section 10.2, as mandated pursuant to any
Requirement of Law applicable to Trustee or as required to
ensure that any security interest in the Receivables is
perfected. Trustee agrees to take such measures as shall be
reasonably requested by Transferor to protect and maintain the
security and confidentiality of such information, and, in
connection therewith, (i) Trustee shall not open the sealed
container in which any Account Schedule is delivered to
Trustee by Transferor except (A) after the appointment of
Trustee or any other Person as Successor Servicer after a
Servicer Default, (B) as necessary to answer any query made to
it in its capacity as a secured party with respect to the
Receivables or any other Trust Assets (and, in the case of
this clause (B), only after Trustee has informed Transferor of
such query and Transferor has consented to such disclosure) or
(C) in connection with any disclosure permitted by the next
sentence, and (ii) Trustee shall allow Transferor to inspect
Trustee's security and confidentiality arrangements, policies
and procedures from time to time during normal business hours.
In the event that Trustee is required by law to disclose any
such information, Trustee shall provide Transferor with prompt
written notice, unless such notice is prohibited by law, of
any such request or requirement so that Transferor may request
a protective order or other appropriate remedy. Trustee shall
make best efforts to provide Transferor with written notice no
later than five days prior to any disclosure pursuant to this
subsection 2.2(b).
(c) Trustee shall have no power to create, assume or
incur indebtedness or other liabilities in the name of the
Trust other than as contemplated in this Agreement.
SECTION 2.3 Representations and Warranties of
Transferor. Transferor hereby represents and warrants to the
Trust as of the Initial Closing Date:
(a) Organization and Good Standing. Transferor is a
national banking association duly organized and validly
existing in good standing under the laws of the United States
and has full corporate power, authority and legal right to own
its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and
to execute, deliver and perform its obligations under this
Agreement and to execute and deliver to Trustee the
Certificates pursuant hereto.
(b) Due Qualification. Transferor is duly qualified to do
business and is in good standing (or is exempt from such
requirement) in any state required in order to conduct its
business, and has obtained all necessary licenses and
approvals with respect to Transferor required under Federal
and Louisiana law; provided that no representation or warranty
is made with respect to any qualifications, licenses or
approvals which Trustee would have to obtain to do business in
any state in which Trustee seeks to enforce any Receivable.
(c) Due Authorization. The execution and delivery of this
Agreement and the execution and delivery to Trustee of the
Certificates by Transferor and the consummation of the
transactions provided for in this Agreement have been duly
authorized by Transferor by all necessary corporate action on
its part, and this Agreement will remain, from the time of its
execution, an official record of Transferor.
(d) No Conflict. The execution and delivery of this
Agreement and the Certificates, the performance of the
transactions contemplated by this Agreement and the
fulfillment of the terms hereof by Transferor will not
conflict with, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice
or lapse of time or both) a material default under, any
material indenture, contract, agreement, mortgage, deed of
trust or other instrument to which Transferor is a party or by
which it or any of its properties are bound.
(e) No Violation. The execution and delivery of this
Agreement and the Certificates, the performance of the
transactions contemplated by this Agreement and the
fulfillment of the terms hereof by Transferor will not
conflict with or violate any Requirements of Law applicable to
Transferor.
(f) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of
Transferor, threatened against Transferor before any court,
regulatory body, administrative agency, or other tribunal or
governmental instrumentality (i) asserting the invalidity of
this Agreement or the Certificates, (ii) seeking to prevent
the issuance of the Certificates or the consummation of any of
the transactions contemplated by this Agreement or the
Certificates, (iii) seeking any determination or ruling that,
in the reasonable judgment of Transferor, would materially and
adversely affect the performance by Transferor of its
obligations under this Agreement, (iv) seeking any
determination or ruling that would materially and adversely
affect the validity or enforceability of this Agreement or the
Certificates or (v) seeking to affect adversely the income tax
attributes of the Trust.
(g) Eligibility of Accounts. As of the Cut-Off Date, each
Account was an Eligible Account and no selection procedures
adverse to the Investor Holders have been employed by
Transferor in selecting the Accounts from among the Eligible
Accounts in the Bank Portfolio.
(h) Transferor's Deposit Accounts. As of the Initial
Closing Date, deposits in Transferor's deposit accounts were
insured to the limits provided by law by BIF or SAIF.
(i) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any
governmental body or official required in connection with the
execution and delivery of this Agreement and the Certificates,
the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof by
Transferor, have been obtained.
(j) Insolvency. No Insolvency Event has occurred.
Transferor did not (i) execute this Agreement or the
Certificates, (ii) grant to Trustee the security interests
described in Section 2.1(d), (iii) cause, permit, or suffer
the perfection or attachment of such a security interest, (iv)
otherwise effectuate or consummate any transfer to Trustee
pursuant to this Agreement or (v) acquire its interest in the
Trust, in each case: (A) in contemplation of insolvency; (B)
with a view to preferring one creditor over another or to
preventing the application of its assets in the manner
required by applicable law or regulations; (C) after
committing an act of insolvency; or (D) with any intent to
hinder, delay, or defraud itself or its creditors.
(k) Trustee. Trustee is not an insider or Affiliate of
Transferor.
For the purposes of the representations and warranties
contained in this Section 2.3 and made by Transferor on the
Initial Closing Date, "Certificates" means the Certificates
issued on the Initial Closing Date. The representations and
warranties set forth in this Section 2.3 shall survive the
transfer and assignment of the respective Receivables to the
Trust and any termination of the rights and obligations of
Servicer pursuant to Section 10.1. Transferor hereby
represents and warrants to the Trust, with respect to any
Series of Certificates, as of its Closing Date, unless
otherwise stated in the related Supplement, that the
representations and warranties of Transferor set forth in this
Section 2.3 are true and correct as of such date (and for
purposes of such representations and warranties, (x)
"Certificates" means the Certificates issued on the related
Closing Date, (y) references to the Initial Closing Date shall
be deemed to refer to that Closing Date and (z) subsection
2.3(g) shall be deemed to refer to the applicable Addition
Cut-Off Date with respect to any Additional Account). Upon
discovery by Transferor, Servicer or Trustee of a breach of
any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to
the others.
SECTION 2.4 Representations and Warranties of Transferor
Relating to this Agreement and the Receivables.
(a) Binding Obligation; Valid Transfer and Assignment.
Transferor hereby represents and warrants to the Trust that,
as of the Initial Closing Date:
(i) This Agreement constitutes a legal, valid and
binding obligation of Transferor, enforceable against
Transferor in accordance with its terms, except (A) 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 the
rights of creditors of national banking associations, and
(B) as such enforceability may be limited by general
principles of equity (whether considered in a suit at law
or in equity).
(ii) This Agreement constitutes either (A) a valid
transfer, assignment, set-over and conveyance to Trustee,
on behalf of the Trust, for the benefit of the Holders,
of all right, title and interest of Transferor in and to
the Receivables now existing and hereafter created and
arising in connection with the Accounts (other than
Receivables in Additional Accounts), all monies due or to
become due with respect to such Receivables (including
all Finance Charge Receivables and Recoveries), and
Insurance Proceeds relating to such Receivables, all of
which property will be held by the Trust free and clear
of any Lien of any Person claiming through or under
Transferor or any of its Affiliates except for (x) Liens
permitted under subsection 2.5(b), and (y) the interest
of Transferor as Holder of the Transferor Certificate, or
(B) a grant of a security interest in such property to
Trustee, for the benefit of the Investor Holders, which
is enforceable with respect to the existing Receivables
(other than Receivables in Additional Accounts), the
proceeds thereof, and Recoveries and Insurance Proceeds
relating thereto upon execution and delivery of this
Agreement, and which will be enforceable with respect to
such Receivables hereafter created, the proceeds thereof
and Insurance Proceeds relating thereto, upon such
creation. If this Agreement constitutes the grant of a
security interest to Trustee in such property, upon the
filing of the financing statement described in Section
2.1 and in the case of the Receivables hereafter created
and proceeds thereof and Recoveries and Insurance
Proceeds relating thereto, upon such creation, Trustee
shall have a first priority perfected security interest
in such property (subject to Section 9-306 of the UCC as
in effect in the State of Louisiana), except for Liens
permitted under subsection 2.5(b). Neither Transferor nor
any Person claiming through or under Transferor shall
have any claim to or interest in the Excess Funding
Account, the Finance Charge Account, the Distribution
Account or any Series Account, and if this Agreement
constitutes the grant of a security interest in such
property, except for the interest of Transferor in such
property as a debtor for purposes of the UCC as in effect
in the State of Louisiana.
(b) Eligibility of Receivables. Transferor hereby
represents and warrants to the Trust as of the Initial Closing
Date and as of each Addition Date, as the case may be, that:
(i) As of the Initial Closing Date, Transferor
represents and warrants that each Receivable was an
Eligible Receivable as of the end of the Cut-Off Date. As
of any Addition Date, Transferor represents and warrants
that each Receivable was an Eligible Receivable (A) as of
the Addition Cut-Off Date, if such Addition Date occurs
prior to the Conversion Date and (B) as of the Addition
Cut-Off Date, if such Addition Date occurs at any later
date.
(ii) Each Receivable then existing has been
conveyed to the Trust free and clear of any Lien of any
Person claiming through or under Transferor or any of its
Affiliates (other than Liens permitted under subsection
2.5(b)) and in compliance, in all material respects, with
all Requirements of Law applicable to Transferor.
(iii) With respect to each Receivable then
existing, all consents, licenses, approvals or
authorizations of or registrations or declarations with
any Governmental Authority required to be obtained,
effected or given by Transferor in connection with the
conveyance of such Receivable to the Trust have been duly
obtained, effected or given and are in full force and
effect.
(iv) As of the Initial Closing Date or the
applicable Addition Date, the related Account Schedule is
an accurate and complete listing in all material respects
of (A) on the Closing Date, all of the Accounts as of the
Cut-Off Date and (B) on an Addition Date, the related
Additional Accounts. In either case, the information
contained therein with respect to the identity of such
Accounts and the Receivables existing thereunder is
accurate in all material respects as of the Cut-Off Date
or the applicable Addition Date. As of the Cut-Off Date,
the Aggregate Receivables equaled $__________, of which
$__________ consisted of the Aggregate Principal
Receivables and $__________ consisted of the Aggregate
Finance Charge Receivables.
On each day on which any new Receivable is created, Transferor
shall be deemed to represent and warrant to the Trust that (A)
each Receivable created on such day is an Eligible Receivable,
(B) each Receivable created on such day has been conveyed to
the Trust in compliance, in all material respects, with all
Requirements of Law applicable to Transferor, (C) with respect
to each such Receivable, all consents, licenses, approvals or
authorizations of or registrations or declarations with, any
Governmental Authority required to be obtained, effected or
given by Transferor in connection with the conveyance of such
Receivable to the Trust have been duly obtained, effected or
given and are in full force and effect and (D) the
representations and warranties set forth in subsection 2.4(a)
are true and correct with respect to each Receivable created
on such day as if made on such day.
(c) Notice of Breach. The representations and warranties
set forth in this Section 2.4 shall survive the transfer and
assignment of the respective Receivables to the Trust. Upon
discovery by Transferor, Servicer or 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 to the other parties mentioned above.
Transferor agrees to cooperate with Servicer and Trustee in
attempting to cure any such breach.
(d) Transfer of Ineligible Receivables.
(i) Automatic Removal. In the event of a breach
with respect to a Receivable of any representations and
warranties set forth in subsection 2.4(b)(ii), or 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 (d) of the definition of Eligible
Receivable, and any of the following three conditions is
met: (A) as a result of such breach or event such
Receivable is charged off as uncollectible or the Trust's
rights in, to or under such Receivable or its proceeds
are impaired or the proceeds of such Receivable are not
available for any reason to the Trust free and clear of
any Lien; (B) the Lien upon the subject Receivable (1)
arises in favor of the United States of America or any
State or any agency or instrumentality thereof and
involves taxes or liens arising under Title IV of ERISA
or (2) has been consented to by Transferor; or (C) the
certificate of deposit or unsecured short term debt
rating of Transferor is not P-1 by Xxxxx'x and the Lien
upon the subject Receivable ranks prior to the Lien
created pursuant to this Agreement; then, upon the
earlier to occur of the discovery of such breach or event
by Transferor or Servicer or receipt by Transferor of
written notice of such breach or event given by Trustee,
each such Receivable shall be automatically removed from
the Trust on the terms and conditions set forth in
subsection 2.4(d)(iii).
(ii) Removal After Cure Period. In the event of a
breach of any of the representations and warranties set
forth in subsection 2.4(b) other than a breach or event
subject to subsection 2.4 (d)(i), and as a result of such
breach the related Account becomes a Defaulted Account or
the Trust's rights in, to or under the Receivable or its
proceeds are impaired or the proceeds of such Receivable
are not available for any reason to the Trust free and
clear of any Lien, then, upon the expiration of 60 days
(or such longer period as may be agreed to by Trustee in
its sole discretion, but in no event later than 120 days)
from the earlier to occur of the discovery of any such
event by either Transferor or Servicer, or receipt by
Transferor of written notice of any such event given by
Trustee, each such Receivable shall be removed from the
Trust on the terms and conditions set forth in subsection
2.4(d)(iii); provided that no such removal shall be
required to be made if, on any day within such applicable
period, such representations and warranties with respect
to such Receivable shall then be true and correct in all
material respects as if such Receivable had been created
on such day.
(iii) Procedures for Removal. When the provisions
of subsection 2.4(d)(i) or (ii) require removal of a
Receivable, Transferor shall accept reassignment of such
Receivable (an "Ineligible Receivable") by directing
Servicer to deduct the principal balance of each such
Ineligible Receivable (other than any portion of such
principal balance constituting Discount Option
Receivables) from the Principal Receivables in the Trust
(to the extent previously included therein) and to
decrease the Transferor Interest by such amount. On and
after the date of such removal, each Ineligible
Receivable shall be deducted from the aggregate amount of
Principal Receivables used in the calculation of any
Investor Percentage, the Transferor Percentage or the
Transferor Interest. If the exclusion of an Ineligible
Receivable from the calculation of the Transferor
Interest would cause the Transferor Interest to be
reduced below zero, Transferor shall promptly, and in no
event later than 10 Business Days after such event, make
a deposit in the Excess Funding Account in immediately
available funds prior to the next succeeding Transfer
Date in an amount equal to the amount by which the
Transferor Interest would be reduced below zero. Upon the
removal of any Ineligible Receivable (and the making of
any deposit required above), the Trust shall
automatically and without further action be deemed to
transfer, assign, set-over and otherwise convey to
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 to such Ineligible Receivable and all
proceeds of such Ineligible Receivable and Recoveries and
Insurance Proceeds relating to such Ineligible Receivable
and Interchange (if any) allocated to such Ineligible
Receivable pursuant to any Supplement. Such reassigned
Ineligible Receivable shall be treated by the Trust as
collected in full as of the date on which it was
transferred. Trustee shall execute such documents and
instruments of transfer or assignment and take other
actions as shall reasonably be requested by Transferor to
evidence the conveyance of such Ineligible Receivable
pursuant to this subsection 2.4(d)(iii). The obligation
of Transferor set forth in this subsection 2.4(d)(iii),
or the automatic removal of such Receivable from the
Trust, as the case may be, shall constitute the sole
remedy respecting any breach of the representations and
warranties set forth in the above-referenced subsections
with respect to such Receivable available to Holders or
Trustee on behalf of Holders.
(iv) Proceeds Held by Servicer. For the purposes
of subsections 2.4(d)(i) and (ii) above, proceeds of a
Receivable shall not be deemed to be impaired hereunder
solely because such proceeds are held by Servicer (if
Servicer is Transferor) for more than the applicable
period under Section 9-306(3) of the UCC as in effect in
the State of Louisiana.
(e) Reassignment of Trust Portfolio. If any of the
representations and warranties set forth in subsection 2.4(a)
is not true and correct in any material respect when made and
such breach has a material adverse effect upon the interest of
the Holders in the Receivables, then either Trustee or the
Holders of Investor Certificates evidencing Undivided
Interests aggregating more than 50% of the Aggregate Investor
Interest, by notice then given in writing to Transferor (and
to Trustee and Servicer, if given by the Investor Holders),
may direct Transferor to accept reassignment of all Principal
Receivables and Discount Option Receivables within 60 days of
such notice (or within such longer period as may be specified
in such notice), and Transferor shall accept reassignment of
such Principal Receivables and Discount Option Receivables on
a Distribution Date specified by Transferor (such Distribution
Date, the "Reassignment Date") occurring within such applicable
period on the terms and conditions set forth below; provided
that no such reassignment shall be required to be made if, at
any time during such applicable period, the representations
and warranties contained in subsection 2.4(a) shall then be
true and correct in all material respects. Transferor shall
deposit on the Transfer Date (in New York Clearing House, next
day funds) preceding the Reassignment Date an amount equal to
the reassignment deposit amount for such Receivables in the
Distribution Account or, if provided in the related Supplement
for any Series, a Series Account for such Series, for
distribution to the Investor Holders pursuant to Article XII.
The reassignment deposit amount with respect to each Series
for such reassignment, unless otherwise stated in the related
Supplement, shall be equal to (i) the Investor Interest of
such Series at the end of the day on the last day of the
Monthly Period preceding the Reassignment Date, less the
amount, if any, previously allocated for payment of principal
to such Holders on the related Distribution Date in the
Monthly Period in which the Reassignment Date occurs, plus
(ii) an amount equal to all interest accrued but unpaid on the
Investor Certificates of such Series at the applicable
interest rate through such last day, less the amount, if any,
previously allocated for payment of interest to the Holders of
such Series on the related Distribution Date in the Monthly
Period in which the Reassignment Date occurs. Payment of the
reassignment deposit amount with respect to each Series, and
all other amounts in the Distribution Account or the
applicable Series Account in respect of the preceding Monthly
Period, shall be considered a prepayment in full of the
Receivables represented by the Investor Certificates. On the
Distribution Date following the Transfer Date on which such
amount has been deposited in full into the Distribution
Account or the applicable Series Account, the Receivables and
all monies due or to become due with respect to such
Receivables and any collateral securing any such Receivables
and Recoveries and Insurance Proceeds relating to such
Receivables and Interchange (if any) allocated to the
Receivables pursuant to any Supplement and proceeds of all of
the foregoing shall be released to Transferor after payment of
all amounts otherwise due hereunder on or prior to such dates
and Trustee shall execute and deliver such instruments of
transfer or assignment, in each case without recourse,
representation or warranty, as shall be prepared by and as are
reasonably requested by Transferor to vest in 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 to such Receivables and any collateral
securing any such Receivables and Recoveries and Insurance
Proceeds relating to such Receivables and Interchange (if any)
allocated to the Receivables pursuant to any Supplement, and
proceeds of all of the foregoing. If Trustee or the Investor
Holders give notice directing Transferor to accept
reassignment as provided above, the obligation of Transferor
to accept reassignment of the Receivables and pay the
reassignment deposit amount pursuant to this subsection 2.4(e)
shall constitute the sole remedy respecting a breach of the
representations and warranties contained in subsection 2.4(a)
available to the Investor Holders or Trustee on behalf of the
Investor Holders.
SECTION 2.5 Covenants of Transferor. Transferor hereby
covenants that:
(a) Receivables Not to Be Instruments. Except as the
Servicer may deem appropriate in connection with enforcement
activities, Transferor shall take no action to cause any
Receivable to be evidenced by an instrument.
(b) Security Interests. Except for the conveyances
hereunder, Transferor shall 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;
Transferor shall immediately notify Trustee of the existence
of any Lien on any Receivable; and Transferor shall 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
Transferor; provided that nothing in this subsection 2.5(b)
shall prevent or be deemed to prohibit Transferor from
suffering to exist upon any of the Receivables any Liens for
municipal or other local taxes if such taxes shall not at the
time be due and payable or if Transferor shall currently be
contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate
reserves with respect thereto.
(c) Account Agreements and Account Guidelines. Transferor
shall comply with and perform its obligations under the
Account Agreements relating to the Accounts and the Account
Guidelines and all applicable rules and regulations of VISA
U.S.A., Inc. and MasterCard International Inc., as applicable,
except insofar as any failure to comply or perform would not
materially and adversely affect the rights of the Trust or the
Holders hereunder or under the Certificates. Transferor may
change the terms and provisions of the Account Agreements or
the Account Guidelines in any respect (including the reduction
of the required minimum monthly payment, the calculation of
the amount, or the timing, of charge-offs and the Periodic
Finance Charges and other fees to be assessed thereon) only if
such change (i) would not, in the reasonable belief of
Transferor, cause a Pay Out Event for any related Series to
occur, and (ii) is made applicable to any comparable segment
of the revolving credit accounts owned and serviced by
Transferor which have characteristics the same as, or
substantially similar to, the Accounts that are the subject of
such change, except as otherwise restricted by an endorsement,
sponsorship, or other agreement between Transferor and an
unrelated third party or by the terms of the Account
Agreements.
(d) Account Allocations.
(i) If 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 an order
by any Federal governmental agency having regulatory
authority over Transferor or any court of competent
jurisdiction that Transferor not transfer any additional
Principal Receivables to the Trust) then, in any such
event: (A) Transferor agrees to allocate and pay to the
Trust, after the date of such inability, all Collections
with respect to Principal Receivables, all Discount
Option Receivables Collections, and all amounts which
would have constituted Collections with respect to
Principal Receivables and all Discount Option Receivables
Collections but for Transferor's inability to transfer
such Receivables (up to an aggregate amount equal to the
amount of Principal Receivables and the Discount Option
Receivables Amount in the Trust on such date); (B)
Transferor agrees to have such amounts applied as
Collections in accordance with Article IV; and (C) for
only so long as all Collections and all amounts which
would have constituted Collections are allocated and
applied in accordance with clauses (A) and (B), Principal
Receivables and Discount Option Receivables (and all
amounts which would have constituted Principal
Receivables or Discount Option Receivables, as the case
may be, but for Transferor's inability to transfer
Receivables to the Trust) that are charged off as
uncollectible in accordance with this Agreement shall
continue to be allocated in accordance with Article IV,
and all amounts that would have constituted Principal
Receivables or Discount Option Receivables, as the case
may be, but for Transferor's inability to transfer
Receivables to the Trust shall be deemed to be Principal
Receivables or Discount Option Receivables, as the case
may be, for the purpose of calculating (i) the applicable
Investor Percentage with respect to any Series and (ii)
the Aggregate Investor Percentage thereunder. If
Transferor is unable pursuant to any Requirement of Law
to allocate Collections as described above, Transferor
agrees that it shall in any such event allocate, after
the occurrence of such event, payments on each Account
with respect to the principal balance of such Account
first to the oldest principal balance of such Account and
to have such payments applied as Collections in
accordance with Article IV. The parties hereto agree that
Finance Charge Receivables, whenever created, accrued in
respect of Principal Receivables that have been conveyed
to the Trust, or that would have been conveyed to the
Trust but for the above described inability to transfer
such Receivables, shall continue to be a part of the
Trust notwithstanding any cessation of the transfer of
additional Principal Receivables and Discount Option
Receivables to the Trust, and Collections with respect
thereto shall continue to be allocated and paid in
accordance with Article IV.
(ii) If Transferor accepts reassignment of an
Ineligible Receivable pursuant to subsection 2.4(d),
then, in any such event, Transferor agrees to account for
payments received with respect to such Ineligible
Receivable separately from its accounting for Collections
on Principal Receivables retained by the Trust. If
payments received from or on behalf of an Obligor are not
specifically applicable either to an Ineligible
Receivable of such Obligor reassigned to Transferor or to
the Receivables of such Obligor retained in the Trust,
then Transferor agrees to allocate payments
proportionately based on the total amount of Principal
Receivables of such Obligor retained in the Trust and the
total amount owing by such Obligor on any Ineligible
Receivables reassigned to Transferor, and the portion
allocable to any Principal Receivables retained in the
Trust shall be treated as Collections and deposited in
accordance with the provisions of Article IV.
(e) Delivery of Collections. If at any time Transferor
ceases to act as Servicer, Transferor shall pay to the
Successor Servicer all payments received by Transferor in
respect of the Receivables as soon as practicable after
receipt thereof by Transferor.
(f) Conveyance of Accounts. Transferor shall not convey,
assign, exchange or otherwise transfer the Accounts to any
Person prior to the termination of this Agreement pursuant to
Article XII; provided that Transferor shall not be prohibited
hereby from conveying, assigning, exchanging or otherwise
transferring the Accounts in connection with a transaction
complying with the provisions of Section 7.2.
SECTION 2.6 Addition of Accounts. (a) If during any
period of thirty consecutive days, the Transferor Interest
averaged over that period is less than the Minimum Transferor
Interest for that period, Transferor shall designate
additional Eligible Accounts ("Additional Accounts") from the
Bank Portfolio to be included as Accounts in a sufficient
amount such that the average Transferor Interest for such
thirty-day period, computed by assuming that the amount of the
Principal Receivables of such Additional Accounts shall be
deemed to be outstanding in the Trust during each day of such
thirty-day period, is at least equal to the Minimum Transferor
Interest. In addition, if on any Record Date the sum of the
Aggregate Principal Receivables plus the principal amount on
deposit in the Excess Funding Account is less than the Minimum
Aggregate Principal Receivables, Transferor shall designate
Additional Accounts from the Bank Portfolio to be included as
Accounts in a sufficient amount such that the Aggregate
Principal Receivables plus the principal amount on deposit in
the Excess Funding Account will be equal to or greater than
the Minimum Aggregate Principal Receivables. Receivables from
all such Additional Accounts shall be transferred to the Trust
on or before the tenth Business Day following such thirty-day
period or Record Date, as the case may be. In lieu of, or in
addition to, designating Additional Accounts as required
above, Transferor may (subject to compliance with applicable
securities laws), on or before such tenth business day, convey
to the Trust participations or trust certificates representing
undivided legal or beneficial interests in a pool of assets
primarily consisting of receivables arising under revolving
credit card accounts or other revolving credit accounts owned
by Transferor or any of its Affiliates and collections thereon
("Participations"). Any addition of Participations to the Trust
(whether pursuant to this subsection (a) or subsection (b)
below) shall be effected by an amendment hereto, dated the
applicable Addition Date, pursuant to subsection 13.1(a).
(b) In addition to its obligation under subsection
2.6(a), Transferor may, but shall not be obligated to, from
time to time designate Additional Accounts or Participations
to be included as Trust Assets, in either case as of the
applicable Addition Date.
(c) Additional Accounts that Transferor is required to
designate pursuant to subsection 2.6(a), or elects to
designate pursuant to subsection 2.6(b), shall be treated as
Automatic Additional Accounts (with the result that the Rating
Agency Condition will not have to be satisfied with respect to
such designation), so long as (x) such Additional Accounts are
MasterCard, VISA or Private Label accounts originated by
Transferor in the ordinary course of business and (y) the
number of such new Additional Accounts would not exceed an
amount equal to the lesser of:
(i) the excess (if any) of (A) [15]% of the
aggregate number of Accounts determined as of the first
day of the third Monthly Period prior to the applicable
Addition Date (or, if later, as of the Initial Closing
Date) over (B) the aggregate number of Automatic
Additional Accounts the Addition Date for which has
occurred since the first day of such third prior Monthly
Period (or, if later, since the Initial Closing Date);
and
(ii) the excess (if any) of (A) [20]% of the
aggregate number of Accounts determined as of the first
day of the calendar year in which the Addition Date
occurs (or, if later, as of the Initial Closing Date)
over (B) the aggregate number of Automatic Additional
Accounts the Addition Date for which has occurred since
the first day of such calendar year (or, if later, since
the Initial Closing Date).
(d) Transferor agrees that any transfer of Receivables
from Additional Accounts or Participations under subsection
2.6(a) or (b) shall occur only upon satisfaction of the
following conditions (to the extent applicable):
(i) on or before the fifth Business Day prior to
the Addition Date with respect to additions pursuant to
subsection 2.6(a) and on or before the tenth Business Day
prior to the Addition Date with respect to additions
pursuant to subsection 2.6(b) (the "Notice Date"),
Transferor shall give Trustee, each Rating Agency and
Servicer written notice that such Additional Accounts or
Participations will be included, which notice shall
specify the approximate aggregate amount of the
Receivables or Participations to be transferred;
(ii) on or before the Addition Date, Transferor
shall have delivered to Trustee a written assignment
(including an acceptance by Trustee on behalf of the
Trust for the benefit of the Investor Holders) in
substantially the form of Exhibit B (the "Assignment")
and Transferor shall have indicated in its computer files
that the Receivables created in connection with the
Additional Accounts have been transferred to the Trust
and, within ten Business Days thereafter, Transferor
shall have delivered to Trustee an Account Schedule
relating to the Additional Accounts, which Account
Schedule list shall be deemed automatically, as of the
date of such Assignment, incorporated into and made a
part of such Assignment and this Agreement;
(iii) Transferor shall represent and warrant that
(A) each Additional Account is an Eligible Account, and
each Receivable in such Additional Account is an Eligible
Receivable, in each case as of the Addition Cut-Off Date,
(B) no selection procedures believed by Transferor to be
materially adverse to the interests of the Investor
Holders were utilized in selecting the Additional
Accounts from the available Eligible Accounts from the
Bank Portfolio, (C) as of the Addition Date, Transferor
is not insolvent and (D) in the reasonable belief of
Transferor, the transfer of the Receivables from such
Additional Accounts shall not cause a Pay Out Event to
occur;
(iv) Transferor shall represent and warrant that
(A) as of the Addition Date, the Assignment constitutes
either (x) a valid transfer and assignment to Trustee, on
behalf of the Trust, of all right, title and interest of
Transferor in and to the Receivables then existing and
thereafter created in the Additional Accounts, and all
monies due or to become due with respect to such
Receivables (including all Finance Charge Receivables and
Recoveries), and Insurance Proceeds relating to such
Receivables and all proceeds of all of the foregoing, all
of which will be held by Trustee on behalf of the Trust,
free and clear of any Lien of any Person claiming through
or under Transferor or any of its Affiliates, except for
(i) Liens permitted under subsection 2.5(b), (ii) the
interest of Transferor as Holder of the Transferor
Certificate and (iii) Transferor's right to receive
interest accruing on, and investment earnings in respect
of, the Finance Charge Account, the Excess Funding
Account and any Series Account, as provided in this
Agreement and any related Supplement, or (y) a grant of
a security interest in such property to Trustee, for the
benefit of the Investor Holders, which is enforceable
with respect to then existing Receivables in the
Additional Accounts, the proceeds thereof and any
Insurance Proceeds and Recoveries relating thereto upon
the conveyance of such Receivables to the Trust, and
which will be enforceable with respect to the Receivables
thereafter created in respect of Additional Accounts
conveyed on such Addition Date, the proceeds thereof and
any Insurance Proceeds and Recoveries relating thereto
upon such creation; and (B) if the Assignment constitutes
the grant of a security interest to Trustee 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 the Receivables thereafter
created in such Additional Accounts and the proceeds
thereof, and any Insurance Proceeds and Recoveries
relating thereto, upon such creation, Trustee shall have
a first priority perfected security interest in such
property (subject to Section 9-306 of the UCC as in
effect in the State of Louisiana), except for Liens
permitted under subsection 2.5(b);
(v) Transferor shall deliver to Trustee an
Officer's Certificate confirming the items set forth in
clauses (ii) through (iv);
(vi) Transferor shall deliver an Opinion of
Counsel with respect to the Receivables in the Additional
Accounts to Trustee (with a copy to each Rating Agency
for any outstanding Series) substantially in the form of
Exhibit E; and
(vii) the Rating Agency Condition shall have been
satisfied as to the initial transfer of Receivables from
such Additional Accounts (other than Automatic Additional
Accounts) or Participations.
SECTION 2.7 Removal of Accounts. (a) Subject to the
conditions set forth below, Transferor may, but shall not be
obligated to, designate Receivables from Accounts for deletion
and removal ("Removed Accounts") from the Trust; provided that
Transferor shall not make more than one such designation in
any Monthly Period. On or before the fifth Business Day (the
"Removal Notice Date") prior to the date on which the
designated Removed Accounts will be reassigned by Trustee to
Transferor (the "Removal Date"), Transferor shall give Trustee
and Servicer written notice that the Receivables from such
Removed Accounts are to be reassigned to Transferor.
(b) Transferor shall be permitted to designate and
require reassignment to it of the Receivables from Removed
Accounts only upon satisfaction of the following conditions:
(i) the removal of any Receivables of any Removed
Accounts on any Removal Date shall not, in the reasonable
belief of Transferor, (a) cause a Pay Out Event to occur,
provided that for the purposes of this subsection
2.7(b)(i)(a), the Receivables of each Removed Account
shall be considered to have been removed as of the
Removal Date, (b) cause the Transferor Interest as a
percentage of the aggregate amount of Principal
Receivables to be less than the Minimum Transferor
Percentage on such Removal Date, (c) cause the aggregate
amount of Principal Receivables to be less than the
Minimum Aggregate Principal Receivables, or (d) result in
the failure to make any payment specified in the related
Supplement with respect to any Series;
(ii) on or prior to the Removal Date, Transferor
shall have delivered to Trustee for execution a written
assignment substantially in the form of Exhibit G (the
"Reassignment") and, within five Business Days
thereafter, Transferor shall have delivered to Trustee a
computer file or microfiche list containing an accurate
list of all Removed Accounts identified by account number
and the aggregate amount of the Receivables in such
Removed Accounts as of the Removal Date, which computer
file or microfiche list shall as of the Removal Date
modify and amend and be made a part of this Agreement;
(iii) Transferor shall represent and warrant that
no selection procedures believed by Transferor to be
materially adverse to the interests of the Holders were
utilized in selecting the Removed Accounts to be removed
from the Trust;
(iv) on or before the tenth Business Day prior to
the Removal Date, each Rating Agency shall have received
notice of such proposed removal of the Receivables of
such Accounts, and the Rating Agency Condition shall have
been satisfied with respect to the removal; and
(v) Transferor shall have delivered to Trustee an
Officer's Certificate confirming the items set forth in
clauses (i) through (iv).
Upon satisfaction of the above conditions, Trustee shall
execute and deliver the Reassignment to Transferor, and the
Receivables from the Removed Accounts shall no longer
constitute a part of the Trust; provided, that, if Transferor
so elects, Receivables existing in Removed Accounts prior to
the Removal Date may remain in the Trust, in which case (x)
Servicer shall allocate, after the Removal Date and until the
balance of such retained Receivables has been reduced to zero
(in accordance with the following allocation method), payments
on each such Removed Account with respect to the principal
balance of such Account first to the oldest principal balance
of such Account and apply such payments as Collections in
accordance with Article IV, and (y) Finance Charge
Receivables, whenever created, accrued in respect of retained
Principal Receivables in Removed Accounts (the balance of
which shall be determined in accordance with the allocation
rule specified in clause (x)) shall continue to be a part of
the Trust notwithstanding any cessation of the transfer of
additional Principal Receivables from the related Removed
Accounts to the Trust, and Collections with respect thereto
shall continue to be allocated and paid in accordance with
Article IV. Transferor may impose additional conditions upon
the designation of Removed Accounts that it determines are
necessary for Transferor to derecognize the Receivables under
applicable accounting principles.
(c) Transferor may, but shall not be obligated to,
designate at any time Zero Balance Accounts, any future
receivables of which will no longer be part of the Trust, and
to remove from its computer records the designation of
Receivables arising in such Accounts as having been
transferred to the Trust.
SECTION 2.8 Discount Option. Transferor may at any time,
upon at least 30 days' prior written notice to Servicer,
Trustee, each Credit Enhancement Provider and each Rating
Agency, designate a percentage, which may be a fixed
percentage or a variable percentage based on a formula (the
"Discount Percentage"), of the amount of Principal Receivables
(determined before subtracting Discount Option Receivables)
arising in all of the Accounts on and after such designation
(and, if so elected by Transferor, Principal Receivables then
existing), or for the period specified, to be treated as
Discount Option Receivables (collectively, "Discount Option
Receivables"), and Transferor may from time to time increase,
reduce or eliminate the Discount Percentage for Discount
Option Receivables arising in the Accounts on and after the
date of such change; provided that no such designation or
changes to the Discount Percentage shall become effective
unless the following conditions have been satisfied:
(i) the designation of Discount Option Receivables
(or increase, reduction or elimination of the Discount
Percentage) shall not, in the reasonable belief of
Transferor, cause a Pay Out Event to occur or cause an
event which with notice or the lapse of time or both
would constitute a Pay Out Event;
(ii) on or before the date specified in the
written notice, Transferor shall have notified each
Rating Agency of the exercise of Transferor's rights
under this Section 2.8 and the Rating Agency Condition
shall have been satisfied; and
(iii) Transferor shall have delivered to Trustee
an Officer's Certificate confirming the items set forth
in clauses (i) and (ii). 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.
SECTION 2.9 Additional Transferors. Transferor may
designate additional or substitute Persons to be included as
Transferors under this Agreement by an amendment to this
Agreement (which amendment shall be subject to Section 13.1
and to any applicable restrictions in the Supplement for any
outstanding Series) and, in connection with such designation,
the initial Transferor shall surrender the Transferor
Certificate to Trustee in exchange for a newly issued
Transferor Certificate reflecting such additional Transferor's
interest in the Transferor Interest; provided that prior to
any such designation and issuance the conditions set forth in
Section 6.3(b) shall have been satisfied.
ARTICLE III ADMINISTRATION AND SERVICING
SECTION 3.1 Acceptance of Appointment and Other Matters
Relating to Servicer. (a) Transferor agrees to act as Servicer
under this Agreement. The Investor Holders of each Series by
their acceptance of the related Certificates consent to
Transferor acting as Servicer.
(b) Servicer shall service and administer the Receivables
and shall collect payments due under the Receivables in
accordance with its customary and usual servicing procedures
for servicing credit card or other receivables comparable to
the Receivables and in accordance with the Account Guidelines
and shall have full power and authority, acting alone or
through any party properly designated by it hereunder, to do
any and all things in connection with such servicing and
administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing and subject
to Section 10.1, Servicer is hereby authorized and empowered
(i) to make withdrawals from the Collection Account as set
forth in this Agreement, (ii) unless such power and authority
is revoked by Trustee on account of the occurrence of a
Servicer Default pursuant to Section 10.1, to instruct Trustee
to make withdrawals and payments from the Finance Charge
Account, the Excess Funding Account and any Series Account, in
accordance with such instructions as set forth in this
Agreement, (iii) unless such power and authority is revoked by
Trustee on account of the occurrence of a Servicer Default
pursuant to Section 10.1, to instruct Trustee in writing, as
set forth in this Agreement, (iv) to execute and deliver, on
behalf of the Trust for the benefit of the Holders, 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 (v) to make any filing, reports, notices,
applications, registrations with, and to seek any consents or
authorizations from, the Securities and Exchange Commission
and any state securities authority on behalf of the Trust as
may be necessary or advisable to comply with any Federal or
state securities or reporting requirements. Trustee agrees
that it shall promptly follow the instructions of Servicer to
withdraw funds from the Excess Funding Account, the Finance
Charge Account or any Series Account and to take any action
required under any Credit Enhancement, in each case at such
time or times as required under this Agreement. Trustee shall
execute at Servicer's written request such documents prepared
by Transferor and acceptable to Trustee as may be necessary or
appropriate to enable Servicer to carry out its servicing and
administrative duties hereunder.
(c) If 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
Transferor or any court of competent jurisdiction that
Transferor not transfer any additional Principal Receivables
to the Trust) then, in any such event, (A) Servicer agrees to
allocate, after such date, all Collections with respect to
Principal Receivables, all Discount Option Receivables
Collections and all amounts which would have constituted
Collections with respect to Principal Receivables and all
Discount Option Receivables Collections but for Transferor's
inability to transfer such Receivables (up to an aggregate
amount equal to the aggregate amount of Principal Receivables
and the Discount Option Receivables Amount in the Trust as of
such date) in accordance with subsection 2.5(d); (B) Servicer
agrees to apply such amounts as Collections in accordance with
Article IV, and (C) for only so long as all Collections and
all amounts which would have constituted Collections are
allocated and applied in accordance with clauses (A) and (B)
above, Principal Receivables and Discount Option Receivables
(and all amounts which would have constituted Principal
Receivables or Discount Option Receivables, as the case may
be, but for Transferor's inability to transfer Receivables to
the Trust) that 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 Principal Receivables or Discount Option
Receivables, as the case may be, but for Transferor's
inability to transfer Receivables to the Trust shall be deemed
to be Principal Receivables for the purpose of calculating (i)
the applicable Investor Percentage with respect to any Series
and (ii) the Aggregate Investor Percentage thereunder. If
Servicer is unable pursuant to any Requirement of Law to
allocate payments on the Accounts as described above, Servicer
agrees that it shall in any such event allocate, after the
occurrence of such event, payments on each Account with
respect to the principal balance of such Account first to the
oldest principal balance of such Account and to have such
payments applied as Collections in accordance with Article IV.
The parties hereto agree that Finance Charge Receivables,
whenever created, accrued in respect of Principal Receivables
which have been conveyed to the Trust, or which would have
been conveyed to the Trust but for the above described
inability to transfer such Receivables, shall be deemed to be
a part of the Trust notwithstanding any cessation of the
transfer of additional Principal Receivables and Discount
Option Receivables to the Trust, and Collections with resect
thereto shall continue to be allocated and paid in accordance
with Article IV.
(d) If Transferor accepts reassignment of an Ineligible
Receivable pursuant to subsection 2.4(d) then, in any such
event, Servicer agrees to account for payments received with
respect to such Ineligible Receivable separately from its
accounting for Collections on Principal Receivables retained
by the Trust. If payments received from or on behalf of an
Obligor are not specifically applicable either to an
Ineligible Receivable of such Obligor reassigned to Transferor
or to Receivables of such Obligor retained in the Trust, then
Servicer agrees to allocate payments proportionately based on
the total amount of Principal Receivables of such Obligor
retained in the Trust and the total amount owing by such
Obligor on any Ineligible Receivables purchased by Transferor,
and the portion allocable to any Principal Receivables
retained in the Trust shall be treated as Collections and
deposited in accordance with the provisions of Article IV.
(e) 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 Servicer in connection with
servicing other credit card receivables.
(f) Servicer shall maintain fidelity bond coverage
insuring against losses through wrongdoing of its officers and
employees who are involved in the servicing of credit card
receivables covering such actions and in such amounts as
Servicer believes to be reasonable from time to time.
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 servicing fee (the
"Servicing Fee") prior to the termination of the Trust pursuant
to Section 12.1. The Servicing Fee shall be payable, with
respect to each Series, at the times and in the amounts set
forth in the related Supplement. The Servicing Fee shall be
allocated between the Investor Certificates (the "Investor
Servicing Fee") and the Holder of the Transferor Certificate
(the "Transferor Servicing Fee").
Servicer's expenses include the amounts due to Trustee
pursuant to Section 11.5 and the reasonable fees and
disbursements of independent public accountants and all other
expenses incurred by Servicer in connection with its
activities hereunder; provided that Servicer shall not be
liable for any liabilities, costs or expenses of the Trust,
the Investor Holders or the Certificate Owners arising under
any tax law, including any Federal, state or local income or
franchise taxes or any other tax imposed on or measured by
income (or any interest or penalties with respect thereto or
arising from a failure to comply therewith). Servicer shall be
required to pay such expenses for its own account and shall
not be entitled to any payment therefor other than the
Servicing Fee.
SECTION 3.3 Representations, Warranties and Covenants of
Servicer. First NBC, as initial Servicer, hereby makes, and
any Successor Servicer by acceptance of its appointment
hereunder shall make, the following representations and
warranties on which Trustee has relied in accepting the
Receivables in trust and in authenticating the Certificates
issued on the Initial Closing Date:
(a) Organization and Good Standing. Servicer is a
national banking association duly organized, validly existing
and in good standing under the laws of the United States and
has full corporate power, authority and legal right to own its
properties and conduct its credit card business as such
properties are presently owned and as such business is
presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
(b) Due Qualification. Servicer is not required to
qualify nor register as a foreign corporation in any state in
order to service the Receivables as required by this Agreement
and has obtained all licenses and approvals necessary in order
to so service the Receivables as required under Federal and
Louisiana law. If Servicer shall be required by any
Requirement of Law to so qualify or register or obtain such
license or approval, then it shall do so.
(c) Due Authorization. The execution, delivery, and
performance of this Agreement have been duly authorized by
Servicer by all necessary corporate action on the part of
Servicer and this Agreement will remain, from the time of its
execution, an official record of Servicer.
(d) Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of Servicer, enforceable
in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereinafter in effect,
affecting the enforcement of creditors' rights in general and
the rights of creditors of national banking associations and
except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or
in equity).
(e) No Violation. The execution and delivery of this
Agreement by Servicer and the performance of the transactions
contemplated by this Agreement by Servicer, and the
fulfillment of the terms hereof applicable to Servicer, will
not conflict with, violate, 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 Servicer or any material
indenture, contract, agreement, mortgage, deed of trust or
other instrument to which Servicer is a party or by which it
is bound.
(f) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of Servicer,
threatened against Servicer before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by this Agreement, seeking any determination or
ruling that, in the reasonable judgment of Servicer, would
materially and adversely affect the performance by Servicer of
its obligations under this Agreement, or seeking any
determination or ruling that would materially and adversely
affect the validity or enforceability of this Agreement.
(g) Compliance with Requirements of Law. Servicer shall
duly satisfy all obligations on its part to be fulfilled under
or in connection with each Receivable and the related Account,
will maintain in effect all qualifications required under
Requirements of Law in order to service properly each
Receivable and the related 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 Holders or any Credit Enhancement
Provider.
SECTION 3.4 Reports and Records for Trustee. (a) Daily
Reports. On each Business Day, Servicer, with prior notice,
shall prepare and make available at the office of Servicer for
inspection by Trustee a record setting forth (i) the aggregate
amount of Collections processed by Servicer on the preceding
Business Day and (ii) the aggregate amount of Receivables as
of the close of business on the preceding Business Day;
provided that (x) Servicer shall be required to so report the
information provided in clause (i) only at such times as
Servicer is required to make deposits, payments and
withdrawals on a daily basis, rather than on each Transfer
Date, as permitted in Section 4.3(a), and (y) Servicer shall
be required to so report the information provided in clause
(ii) on any day in any Monthly Period only if the Aggregate
Principal Receivables as of the end of the prior Monthly
Period, minus the sum of the Adjusted Aggregate Investor
Interest and the outstanding principal amount of any purchased
interest sold pursuant to subsection 6.9(d) is less than 20%
of the Aggregate Principal Receivables as of the end of such
prior Monthly Period.
(b) Monthly Servicer's Certificate. Unless otherwise
stated in the related Supplement with respect to any Series,
on each Determination Date Servicer shall forward, as provided
in Section 13.5, to Trustee, the Paying Agent, any Credit
Enhancement Provider and each Rating Agency, a certificate of
a Servicing Officer in the form of Exhibit C (which includes
the Schedule thereto specified as such in each Supplement) as
to such matters as are set forth in Exhibit C.
SECTION 3.5 Annual Servicer's Certificate. On or before
March 31 of each calendar year, beginning with March 31, 1998,
Servicer will deliver, as provided in Section 13.5, to
Trustee, any Credit Enhancement Provider and each Rating
Agency, an Officer's Certificate substantially in the form of
Exhibit D stating that (a) a review of the activities of
Servicer during the twelve-month period ending on December 31
of the immediately prior calendar year, or for the initial
period, from the Closing Date until December 31, 1997, and of
its performance under this Agreement was made under the
supervision of the officer signing such certificate and (b) to
the best of such officer's knowledge, based on such review,
Servicer has fully performed all its obligations under this
Agreement throughout such period, or, if there has been a
default in the performance of any such obligation, specifying
each such default known to such officer and the nature and
status thereof. A copy of such certificate may be obtained by
any Investor Holder by a request in writing to Trustee
addressed to the Corporate Trust Office.
SECTION 3.6 Annual Independent Accountants' Servicing
Report. (a) On or before March 31 of each calendar year,
beginning with March 31, 1998, Servicer shall cause a firm of
nationally recognized independent certified public accountants
(who may also render other services to Servicer or Transferor)
to furnish, as provided in Section 13.5, a report to Trustee,
any Credit Enhancement Provider and each Rating Agency, to the
effect that such firm has applied certain agreed upon
procedures with Servicer and such firm has examined certain
documents and records relating to the servicing of Accounts
under this Agreement and each Supplement, compared the
information contained in Servicer's certificates delivered
pursuant to this Agreement during the period covered by such
report with such documents and records, and that, on the basis
of such agreed upon procedures, such firm is of the opinion
(assuming the accuracy of any reports generated by Servicer's
third party agents) that such servicing was conducted in
compliance with this Agreement during the period covered by
such report (which shall be the prior calendar year, or the
portion thereof falling after the Initial Closing Date),
except for such exceptions, errors or irregularities as such
firm shall believe to be immaterial to the financial
statements of Servicer and such other exceptions, errors or
irregularities as shall be set forth in such report. Unless
otherwise provided with respect to any Series in the related
Supplement, a copy of such report may be obtained by any
Investor Holder by a request in writing to Trustee addressed
to the Corporate Trust Office.
(b) On or before March 31 of each calendar year,
beginning with March 31, 1998, Servicer shall cause a firm of
nationally recognized independent certified public accountants
(who may also render other services to Servicer or Transferor)
to furnish, as provided in Section 13.5, a report, prepared
using generally accepted auditing standards, to Trustee and
each Rating Agency to the effect that they have compared the
mathematical calculations of each amount set forth in the
monthly certificates forwarded by Servicer pursuant to
subsection 3.4(b) during the period covered by such report
(which shall be the prior calendar year, or the portion
thereof falling after the Initial Closing Date), with
Servicer's computer reports which were the source of such
amounts and that on the basis of such comparison, such firm is
of the opinion that such amounts are in agreement, except for
such exceptions as it believes to be immaterial to the
financial statements of Servicer and such other exceptions as
shall be set forth in such report. A copy of such report may
be obtained by any Investor Holder by a request in writing to
Trustee addressed to the Corporate Trust Office.
SECTION 3.7 Tax Treatment. Transferor has structured
this Agreement and the Investor Certificates with the
intention that the Investor Certificates will qualify under
applicable Federal, state, local and foreign tax law as
indebtedness. Transferor, Servicer, the Holder of the
Transferor Certificate, each Investor Holder, and each
Certificate Owner, agree to treat and to take no action
inconsistent with the treatment of the Investor Certificates
(or beneficial interest therein) as indebtedness for purposes
of Federal, state, local and foreign income or franchise taxes
and any other tax imposed on or measured by income. Each
Investor Holder and the Holder of the Transferor Certificate,
by acceptance of its Certificate and each Certificate Owner,
by acquisition of a beneficial interest in a Certificate,
agree to be bound by the provisions of this Section 3.7.
Notwithstanding the foregoing or any other provision of this
Agreement Transferor may, at its option, make any election
that may in the future be available to it under the Internal
Revenue Code to have the Trust or any Series treated as a
"financial asset securitization investment trust" (or similar
entity), so long as prior to that election taking effect
Transferor delivers to Trustee an Opinion of Counsel to the
effect that the election (a) will not cause the Trust to be
classified, for Federal income tax purposes, as an association
(or publicly traded partnership) taxable as a corporation and
(b) will not cause or constitute an event in which gain or
loss would be recognized by any Investor Holder.
SECTION 3.8 Notices to Transferor. If Transferor is no
longer acting as Servicer, any Successor Servicer pursuant to
Section 10.2 shall deliver or make available to Transferor
each certificate and report required to be prepared, forwarded
or delivered thereafter pursuant to Sections 3.4, 3.5 and 3.6.
SECTION 3.9 Reports to the Commission. Servicer shall,
on behalf of the Trust, cause to be filed with the Securities
and Exchange Commission any periodic reports required to be
filed under the provisions of the Securities Exchange Act of
1934 and the rules and regulations of the Securities and
Exchange Commission thereunder. Transferor, if Transferor is
not Servicer, shall, at the expense of Servicer, cooperate in
any reasonable request of Servicer in connection with such
filings.
ARTICLE IV RIGHTS OF HOLDERS AND ALLOCATION AND
APPLICATION OF COLLECTIONS
SECTION 4.1 Rights of Holders. Each Series of Investor
Certificates shall represent Undivided Interests in the Trust,
including the benefits of any Credit Enhancement issued with
respect to such Series and the right to receive the
Collections and other amounts at the times and in the amounts
specified in this Article IV to be deposited in the Investor
Accounts and any other Series Account (if so specified in the
related Supplement) or to be paid to the Investor Holders of
such Series. The aggregate interest represented by such
Certificates in the Principal Receivables at any time shall
not exceed an amount equal to the Investor Interest at such
time. The Transferor Certificate shall represent the remaining
undivided interest in the Trust, including the right to
receive the Collections and other amounts at the times and in
the amounts specified in this Article IV to be paid to the
Holder of the Transferor Certificate. The aggregate interest
represented by the Transferor Certificate in the Principal
Receivables at any time shall not exceed the Transferor
Interest at such time and such Certificate shall not represent
any interest in the Investor Accounts, except as provided in
this Agreement, or the benefits of any Credit Enhancement
issued with respect to any Series. If this Agreement is
deemed to constitute a grant to Trustee, for the benefit of
the Investor Holders, of a security interest in the
Receivables and other Trust Assets, then the Transferor
Certificate shall be deemed to represent Transferor's equity
in the collateral granted.
SECTION 4.2 Establishment of Accounts. (a) The
Collection Account. Servicer, for the benefit of the Holders,
shall establish and maintain in the name of Trustee, on behalf
of the Trust, a non-interest bearing segregated account (the
"Collection Account") bearing a designation clearly indicating
that the funds deposited therein are held in trust for the
benefit of the Holders, or shall cause such Collection Account
to be established and maintained, with an office branch of (i)
a depository institution or trust company (which may include
Trustee, Servicer or an Affiliate of Servicer) organized under
the laws of the United States of America or any one of the
states thereof or the District of Columbia and with deposit
insurance provided by BIF or SAIF; provided that at all times
the certificates of deposit, short-term deposits or commercial
paper or the long-term unsecured debt obligations (other than
such obligation whose rating is based on collateral or on the
credit of a Person other than such institution or trust
company) of such depository institution or trust company shall
have a credit rating from Xxxxx'x and Standard & Poor's of at
least P-1 and A-1, respectively, and, if rated by Fitch, a
credit rating from Fitch of at least F-1, in the case of the
certificates of deposit, short-term deposits or commercial
paper, or a rating from Xxxxx'x of at least Aa3 and from
Standard & Poor's of at least AA-, and, if rated by Fitch,
from Fitch of at least AA-, in the case of the long-term
unsecured debt obligations, or (ii) a depository institution,
which may include Trustee, which is acceptable to each Rating
Agency (any of the foregoing being a "Qualified Institution");
provided further, that upon the insolvency of Servicer, the
Collection Account shall not be permitted to be maintained
with Servicer. Pursuant to authority granted to it pursuant to
subsection 3.1(b), Servicer shall have the revocable power to
withdraw funds from the Collection Account for the purposes of
carrying out its duties hereunder.
(b) The Finance Charge and Excess Funding Accounts.
Trustee, for the benefit of the Investor Holders, shall
establish and maintain with Trustee in the name of the Trust
two segregated trust accounts (the "Finance Charge Account" and
the "Excess Funding Account," respectively) bearing a
designation clearly indicating that the funds therein are held
for the benefit of the Investor Holders, or shall cause such
Finance Charge Account or Excess Funding Account to be
established and maintained with an office or branch of a
Qualified Institution. Trustee shall possess all right, title
and interest in all funds on deposit from time to time in the
Finance Charge Account and the Excess Funding Account and in
all proceeds thereof. The Finance Charge Account and the
Excess Funding Account shall be under the sole dominion and
control of Trustee for the benefit of the Investor Holders.
Pursuant to authority granted to it hereunder, Servicer shall
have the revocable power to instruct Trustee to withdraw funds
from the Finance Charge Account and the Excess Funding Account
for the purpose of carrying out Servicer's duties hereunder.
Trustee at all times shall maintain accurate records
reflecting each transaction in the Finance Charge Account and
the Excess Funding Account, and that funds held therein shall
at all times be held in trust for the benefit of the Investor
Holders.
(c) The Distribution Account. Trustee, for the benefit of
the Investor Holders, shall cause to be established and
maintained in the name of the Trust, a segregated demand
deposit trust account (the "Distribution Account") bearing a
designation clearly indicating that the funds deposited
therein are held in trust for the benefit of the Investor
Holders, or shall cause such Distribution Account to be
established and maintained, with an office or branch of a
Qualified Institution (other than Transferor). Trustee shall
possess all right, title and interest in all funds on deposit
from time to time in the Distribution Account and in all
proceeds thereof. The Distribution Account shall be under the
sole dominion and control of Trustee for the benefit of the
Investor Holders.
(d) Series Accounts. If so provided in the related
Supplement, Trustee, for the benefit of the Investor Holders,
shall cause to be established and maintained in the name of
the Trust, one or more Series Accounts. Each such Series
Account shall bear a designation clearly indicating that the
funds deposited therein are held for the benefit of the
Investor Holders of such Series. Each such Series Account will
be a trust account, if so provided in the related Supplement,
and will have the other features and be applied as set forth
in the related Supplement.
(e) Administration of the Finance Charge Account, Excess
Funding Account and Distribution Account. Funds on deposit in
the Excess Funding Account, the Finance Charge Account and the
Distribution Account shall at all times be invested by Trustee
at the written direction of Servicer in Permitted Investments.
Any such investment in the Finance Charge Account or the
Excess Funding Account shall mature and such funds shall be
available for withdrawal on or prior to the Transfer Date
related to the Monthly Period in which such funds are
processed for collection, or if so specified in the related
Supplement, immediately preceding a Distribution Date. Funds
on deposit in the Distribution Account on any Transfer Date
shall be invested in such Permitted Investments that will
mature so that all such funds will be available for withdrawal
on the related Distribution Date. Trustee shall maintain for
the benefit of the Investor Holders possession of the
negotiable instruments or securities evidencing the Permitted
Investments described in clause (a) and, as applicable, (c) of
the definition thereof from the time of purchase thereof until
the time of sale or maturity; provided that no such investment
shall be disposed of prior to its maturity date. On each
Transfer Date, all interest and other investment earnings (net
of losses and investment expenses) accrued on or prior to that
Transfer Date in connection with the investment of funds on
deposit in the Collection Account, the Excess Funding Account,
the Finance Charge Account, and the Distribution Account since
the prior Transfer Date shall be deemed to constitute, and for
all purposes hereof shall be treated as, Collections of
Finance Charge Receivables with respect to the prior Monthly
Period, except as otherwise specified in the related
Supplement. Subject to the restrictions set forth above,
Transferor, or a Person designated in writing by Transferor,
of which Trustee shall have received written notification
thereof, shall have the authority to instruct Trustee with
respect to the investment of funds on deposit in the Excess
Funding Account, the Finance Charge Account and the
Distribution Account. For purposes of determining the
availability of funds or the balances in the Finance Charge
Account, the Excess Funding Account and the Distribution
Account for any reason under this Agreement, all investment
earnings on such funds shall be deemed not to be available or
on deposit.
(f) Withdrawals from Excess Funding Account. Servicer
shall instruct Trustee that funds on deposit in the Excess
Funding Account shall be withdrawn and paid to the Holder of
the Transferor Certificate on any date to the extent that the
Transferor Interest is greater than the Minimum Transferor
Interest (after giving effect to any addition of Principal
Receivables to the Trust on such date). In addition, on any
Distribution Date on which one or more Series that is a
Principal Sharing Series is in an Amortization Period,
Servicer shall determine the aggregate amounts of Series
Principal Shortfalls, if any, with respect to each such Series
(after giving effect to all allocation and payment provisions
in the Supplement with respect to each such Series), and
Servicer shall instruct Trustee to withdraw such amount from
the Excess Funding Account (up to an amount equal to the
lesser of (x) the amount on deposit in the Excess Funding
Account after application of all transfers to the Excess
Funding Account on that day and (y) the amount, if any, by
which the Transferor Interest would be less than zero if there
were no funds on deposit in the Excess Funding Account on that
day) on such Distribution Date and allocate such amount among
each such Series as specified in each related Supplement.
SECTION 4.3 Collections and Allocations. (a)
Collections. Except as provided below, Servicer shall deposit
all Collections in the Collection Account as promptly as
possible after the Date of Processing of such Collections, but
in no event later than the second Business Day following such
Date of Processing. In the event of the insolvency of
Servicer, then, immediately upon the occurrence of such event
and thereafter, Servicer shall deposit all Collections into
the Collection Account which may no longer be established and
maintained with Servicer in accordance with subsection 4.2(a),
and in no such event shall Servicer deposit any Collections
thereafter into any account established, held or maintained
with Servicer. For purposes of this Agreement, Servicer may
allocate Recoveries, fee reversals and miscellaneous fees
between the Accounts and other accounts in the Bank Portfolio
on any reasonable basis.
Servicer shall allocate such amounts to each Series of
Investor Certificates and to the Holder of the Transferor
Certificate in accordance with this Article IV and shall
withdraw the required amounts from the Collection Account or
pay such amounts to the Holder of the Transferor Certificate
in accordance with this Article IV, in both cases as modified
by any Supplement. Servicer shall make such deposits or
payments on the date indicated therein by wire transfer or as
otherwise provided in the Supplement for any Series of
Certificates with respect to such Series.
Notwithstanding anything in this Agreement to the
contrary, for so long as, and only so long as, Transferor
shall remain Servicer hereunder, and (a)(i) Servicer provides
to Trustee a letter of credit covering collection risk of
Servicer (the "Servicer Letter of Credit") or makes other
arrangements to cover Servicer's collection risk, and (ii) the
Rating Agency Condition shall have been satisfied with respect
to the Servicer Letter of Credit or such other arrangements,
or (b) Transferor shall have and maintain a certificate of
deposit or unsecured short-term debt rating of P-1 by Xxxxx'x
and of at least A-1 by Standard & Poor's and, if rated by
Fitch, at least F-1 by Fitch, and deposit insurance provided
by BIF or SAIF, Servicer need not deposit Collections into the
Collection Account or from the Collection Account into the
Excess Funding Account, the Finance Charge Account or any
Series Account, as provided in any Supplement, or make
payments to the Holder of the Transferor Certificate, prior to
each Transfer Date, but may make such deposits, payments and
withdrawals on each Transfer Date, in an amount equal to the
net amount of such deposits, payments and withdrawals which
would have been made but for the provisions of this paragraph.
Notwithstanding anything else in this Agreement to the
contrary, with respect to any Monthly Period, whether Servicer
is required to make monthly or daily deposits from the
Collection Account into the Finance Charge Account, the Excess
Funding Account or any Series Account, as provided in any
Supplement, (i) Servicer will only be required to deposit
Collections from the Collection Account into the Finance
Charge Account, the Excess Funding Account or any Series
Account up to the required amount to be deposited into any
such deposit account or, without duplication, distributed on
or prior to the related Distribution Date to Investor Holders
or to any Credit Enhancement Provider pursuant to the terms of
any Supplement or agreement relating to such Credit
Enhancement and (ii) if at any time prior to such Distribution
Date the amount of Collections deposited in the Collection
Account exceeds the amount required to be deposited pursuant
to clause (i), Servicer may withdraw the excess from the
Collection Account.
(b) Allocations for Transferor Certificate. Throughout
the existence of the Trust, unless otherwise stated in any
Supplement, Servicer shall allocate to the Holder of the
Transferor Certificate an amount equal to the product of (A)
the applicable Transferor Percentage and (B) the aggregate
amount of Collections allocated to Principal Receivables and
Finance Charge Receivables in respect of each Monthly Period.
Notwithstanding anything in this Agreement to the contrary,
unless otherwise stated in any Supplement, Servicer need not
deposit this amount or any other amounts so allocated to the
Transferor Certificate pursuant to any Supplement into the
Collection Account and shall pay, or be deemed to pay, such
amounts as collected to the Holder of the Transferor
Certificate.
(c) Adjustments for Miscellaneous Credits and Fraudulent
Charges. Servicer shall reduce (a "Credit Adjustment") on a net
basis not later than the Determination Date following each
Monthly Period the aggregate amount of Principal Receivables
used to calculate the Transferor Interest with respect to any
Principal Receivable (i) which was created in respect of
merchandise refused or returned by the Obligor thereunder or
as to which the Obligor thereunder has successfully asserted
a counterclaim or defense, (ii) which is reduced by Servicer
by the amount of any rebate, refund, charge-back or
adjustment (including Servicer errors) or (iii) which was
created as a result of a fraudulent or counterfeit charge.
If a Credit Adjustment would cause the Transferor
Interest to be an amount less than zero, Transferor shall make
a deposit, no later than the Business Day following the Date
of Processing of such Credit Adjustment, in the Excess Funding
Account in immediately available funds in an amount equal to
the amount by which the Transferor Interest would be less than
zero after giving effect to such Credit Adjustment on such
Date of Processing.
(d) Estimation of Allocations. Until the Conversion Date:
(i) For the purposes of making the allocations
described in Article IV, all Collections received by
Servicer with respect to Receivables in each Billing
Cycle shall be deemed, on each Date of Processing, to be
Collections of Finance Charge Receivables up to the
amount of Finance Charge Receivables billed as of the
opening of such Billing Cycle with respect to Accounts in
such Billing Cycle (with respect to each such Billing
Cycle, the "Billed Finance Charge Receivables").
Collections received by Servicer with respect to
Receivables in each Billing Cycle in excess of the
related Billed Finance Charge Receivables shall be
deemed, on each Date of Processing, to be Collections of
Principal Receivables ("Billed Principal Receivables").
(ii) On a Business Day not later than the
Determination Date in the Monthly Period following the
Monthly Period in which a Billing Cycle ends (the
"Collection Recomputation Date"), Servicer shall
determine the amount of Collections of Finance Charge
Receivables and the Collections of Principal Receivables
received by Servicer on each Date of Processing during
such Billing Cycle (the "Collected Finance Charge
Receivables" and the "Collected Principal Receivables,"
respectively). Servicer shall recompute the allocations
made on each Date of Processing during each such Billing
Cycle pursuant to subsection 4.6(e)(i) based on the
amount of Collected Finance Charge Receivables and
Collected Principal Receivables and, based upon such
recomputation, (x) Servicer shall pay to the Holder of
the Transferor Certificate from monies in the Collection
Account or, any Series Account as provided in each
Supplement any underpayment to such Holder which such
recomputation discloses, or (y) the Holder of the
Transferor Certificate shall pay to the Servicer any
overpayment of such Holder which such recomputation
discloses, for deposit in the Collection Account or any
Series Account as provided in each Supplement for the
Monthly Period preceding such Determination Date for
allocation pursuant to Article IV. Deposits and
withdrawals with respect to the Collection Account and
any Series Account shall be allocated to each Series
based on the applicable Investor Percentage with respect
to such Series as provided in the related Supplement.
(iii) All references in this Agreement (including
any Supplement) to Default Amounts, Net Default Amounts,
Recoveries and Net Recoveries with reference to any
Monthly Period shall be deemed to refer to such amounts
calculated with respect to Accounts in each Billing Cycle
for the Billing Cycles ending in such Monthly Period and
then aggregated.
SECTION 4.4 Shared Principal Collections. On each
Business Day, Shared Principal Collections may, at the option
of Transferor, be applied (or held in the Collection Account
for later application) as principal with respect to any
Variable Interest or, so long as either no Principal Sharing
Series is in an Amortization Period or no Principal Sharing
Series that is in an Amortization Period will have a Series
Principal Shortfall on the related Transfer Date (assuming no
Pay Out Event occurs), be withdrawn from the Collection
Account and paid to the Holder of the Transferor Certificate;
and on each Distribution Date, (a) Servicer shall allocate
Shared Principal Collections not previously so applied or paid
to each applicable Principal Sharing Series, pro rata, in
proportion to the Series Principal Shortfalls, if any, with
respect to each such Series, and any remainder may, at the
option of Transferor, be applied as principal with respect to
any Variable Interest and (b) Servicer shall withdraw from the
Collection Account or applicable Series Account and pay to the
Holder of the Transferor Certificate any amounts representing
Shared Principal Collections remaining after the allocations
and applications referred to in clause (a); provided that, if,
on any day a Retention Condition exists, Servicer shall not
distribute to the Holder of the Transferor Certificate any
Shared Principal Collections that otherwise would be
distributed to the Holder of the Transferor Certificate, but
shall deposit such funds in the Excess Funding Account to the
extent required so that the Retention Condition no longer
exists.
SECTION 4.5 Excess Finance Charge Collections. On each
Distribution Date, (a) Servicer shall apply the aggregate
amount for all outstanding Excess Allocation Series of the
amounts which the related Supplements specify are to be
treated as "Excess Finance Charge Collections" for the related
Transfer Date to other Excess Allocation Series, pro rata, in
proportion to the Finance Charge Shortfalls, if any, with
respect to each such Series, and (b) Servicer shall withdraw
(or shall instruct Trustee to withdraw) from the Collection
Account and pay to the Holder of the Transferor Certificate an
amount equal to the excess, if any, of (x) the aggregate
amount for all outstanding Excess Allocation Series of the
amounts which the related Supplements specify are to be
treated as "Excess Finance Charge Collections" for such
Distribution Date over (y) the aggregate amount for all
outstanding Excess Allocation Series which the related
Supplements specify are "Finance Charge Shortfalls", for such
Distribution Date; provided that the sharing of Excess Finance
Charge Collections among Excess Allocation Series will
continue only until such time, if any, as Transferor shall
deliver to Trustee an Officer's Certificate to the effect
that, in the reasonable belief of Transferor, the continued
sharing of Excess Finance Charge Collections among Excess
Allocation Series would have adverse regulatory implications
with respect to Transferor. Following the delivery by
Transferor of such an Officer's Certificate to Trustee, there
will not be any further sharing of Excess Finance Charge
Collections among Excess Allocation Series.
SECTION 4.6 Allocation of Trust Assets to Series or
Groups. To the extent so provided in the Supplement for any
Series or in an amendment to this Agreement executed pursuant
to Section 13.1(a), Receivables and Participations conveyed to
the Trust and all Collections received with respect to thereto
may be allocated or applied in whole or in part to one or more
Series or Groups as may be provided in such Supplement or
amendment; provided that any such allocation and application
shall be effective only upon satisfaction of the following
conditions:
(i) on or before the fifth Business Day immediately
preceding such allocation, the Servicer shall have given
Trustee and each Rating Agency written notice of such
allocation;
(ii) the Rating Agency Condition shall have been
satisfied with respect to such allocation; and
(iii) the Servicer shall have delivered to Trustee
an Officer's Certificate, dated the date of such
allocation, to the effect that the Servicer reasonably
believes that such allocation will not materially
adversely affect the interests of the Holders of any
Series issued and outstanding.
Any such Supplement or amendment may provide that (i)
such allocation to one or more particular Series or Groups may
terminate upon the occurrence of certain events specified
therein and (ii) upon the occurrence of any such event, such
assets and any Collections with respect thereto shall be
reallocated to other Series or Groups or to all Series, all as
shall be provided in such Supplement or amendment.
[THE REMAINDER OF ARTICLE IV IS RESERVED AND
SHALL BE SPECIFIED IN ANY SUPPLEMENT WITH
RESPECT TO ANY SERIES.]
ARTICLE V [ARTICLE V IS RESERVED AND SHALL BE SPECIFIED
IN THE SUPPLEMENT WITH RESPECT TO ANY SERIES.]
ARTICLE VI THE CERTIFICATES
SECTION 6.1 The Certificates. Subject to Sections 6.10
and 6.13, 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
substantially in the form of the exhibits with respect thereto
attached to the related Supplement. The Transferor
Certificate shall be substantially in the form of Exhibit A.
The Investor Certificates and the Transferor Certificate
shall, upon issue pursuant hereto or to Section 6.9 or Section
6.10, be executed and delivered by Transferor to Trustee for
authentication and redelivery as provided in Sections 6.1 and
6.2. Any Investor Certificate shall be issuable in a minimum
denomination of $1,000 Undivided Interest and integral
multiples thereof, unless otherwise specified in any
Supplement. The Transferor Certificate shall also be issued
as a single Certificate. Each Certificate shall be executed
by manual or facsimile signature on behalf of Transferor by
its President or any Vice President. 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 Transferor or Trustee shall not be rendered
invalid, notwithstanding that such individual has ceased to be
so authorized prior to the authentication and delivery of such
Certificates or does not hold such office at the date of such
Certificates. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless
there appears on such Certificate a certificate of
authentication substantially in the form provided for herein,
executed by or on behalf of Trustee by the manual signature of
a duly authorized signatory, and such certificate upon any
Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated
and delivered hereunder. All Certificates shall be dated the
date of their authentication except Bearer Certificates which
shall be dated the applicable Issuance Date as provided in the
related Supplement.
SECTION 6.2 Authentication of Certificates. On the
Initial Closing Date, Trustee shall authenticate and deliver
the initial Series of Investor Certificates, to or upon the
written order of Transferor against payment to Transferor or
its designee of the Initial Investor Interest (net of any
purchase or underwriting discount). Upon the receipt of such
payment and the issuance of the Investor Certificates, such
Investor Certificates shall be fully paid and non-assessable.
Trustee shall authenticate and deliver the Transferor
Certificate to Transferor simultaneously with its delivery to
Transferor of the initial Series of Investor Certificates.
Upon an Issuance as provided in Section 6.9 and the
satisfaction of certain other conditions specified therein,
Trustee shall authenticate and deliver the Investor
Certificates of additional Series (with the designation
provided in the related Supplement), upon the order of
Transferor, to the Persons designated in such Supplement. Upon
the order of Transferor, the Certificates of any Series shall
be duly authenticated by or on behalf of Trustee, in
authorized denominations. If specified in the related
Supplement for any Series, Trustee shall authenticate and
deliver outside the United States the Global Certificate that
is issued upon original issuance thereof, upon the written
order of Transferor, to the Depository against payment of the
purchase price therefor. If specified in the related
Supplement for any Series, Trustee shall authenticate
Book-Entry Certificates that are issued upon original issuance
thereof, upon the written order of Transferor, to a Clearing
Agency or its nominee as provided in Section 6.10 against
payment of the purchase price thereof.
SECTION 6.3 Registration of Transfer and Exchange of
Certificates. (a) Trustee shall cause to be kept at the office
or agency to be maintained by a transfer agent and registrar
(the "Transfer Agent and Registrar"), in accordance with the
provisions of Section 11.16, a register (the "Certificate
Register") in which, subject to such reasonable regulations as
it may prescribe, the Transfer Agent and Registrar shall
provide for the registration of the Investor Certificates of
each Series (unless otherwise provided in the related
Supplement) and of transfers and exchanges of the Investor
Certificates as herein provided. Trustee is the initial
Transfer Agent and Registrar. If any Investor Certificate is
issued as a Global Certificate, Trustee may, or if and so long
as any Series of Investor Certificates are listed on the
Luxembourg Stock Exchange and such exchange shall so require,
Trustee shall appoint a co-transfer agent and co-registrar in
Luxembourg or another European city. Any reference in this
Agreement to the Transfer Agent and Registrar shall include
any co-transfer agent and co-registrar unless the context
otherwise requires. Trustee shall be permitted to resign as
Transfer Agent and Registrar upon 30 days' written notice to
Servicer. In the event that Trustee shall no longer be the
Transfer Agent and Registrar, Trustee shall appoint a
successor Transfer Agent and Registrar.
Upon surrender for registration of transfer of any
Certificate at any office or agency of the Transfer Agent and
Registrar, subject to the provisions of subsection 6.3(c),
Transferor shall execute, and Trustee shall authenticate and
deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized
denominations of like aggregate Undivided Interests; provided
that the provisions of this paragraph shall not apply to
Bearer Certificates.
At the option of an Investor Holder, Investor
Certificates may be exchanged for other Investor Certificates
of the same Series in authorized denominations of like
aggregate Undivided Interests, upon surrender of the Investor
Certificates to be exchanged at any such office or agency. At
the option of any Holder of Registered Certificates,
Registered Certificates may be exchanged for other Registered
Certificates of the same 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 a Holder of a
Bearer Certificate, subject to applicable laws and regulations
(including the Bearer Rules), Bearer Certificates may be
exchanged for other Bearer Certificates or Registered
Certificates of the same Series in authorized denominations of
like aggregate Undivided Interests in the Trust, in the manner
specified in the Supplement for such Series, 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 (or be accompanied by)
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 Coupons
relating to such Distribution Date.
Whenever any Investor Certificates of any Series are so
surrendered for exchange, Transferor shall execute, and
Trustee shall authenticate and (unless the Transfer Agent and
Registrar is different than Trustee, in which case the
Transfer Agent and Registrar shall) deliver, the Investor
Certificates of such Series which the Holder 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 Trustee and the Transfer
Agent and Registrar duly executed by the Holder thereof or his
attorney-in-fact duly authorized in writing.
The preceding provisions of this Section 6.3
notwithstanding, Trustee or the Transfer Agent and Registrar,
as the case may be, shall not be required to register the
transfer of or exchange any Investor Certificate of any Series
for a period of 15 days preceding the due date for any payment
with respect to the Investor Certificates of such Series.
Unless otherwise provided in the related Supplement, no
service charge shall be made for any registration of transfer
or exchange of Certificates, but the Transfer Agent and
Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
All Investor Certificates (together with any Coupons
attached to Bearer Certificates) surrendered for registration
of transfer and exchange shall be canceled by the Transfer
Agent and Registrar and disposed of in a manner satisfactory
to Trustee. Trustee shall cancel and destroy the Global
Certificates upon its exchange in full for Definitive
Certificates and shall deliver a certificate of destruction to
Transferor. Such certificate shall also state that a
certificate or certificates of each Foreign Clearing Agency to
the effect referred to in Section 6.13 was received with
respect to each portion of the Global Certificate exchanged
for Definitive Certificates.
Transferor shall execute and deliver to Trustee or the
Transfer Agent and Registrar, as applicable, Bearer
Certificates and Registered Certificates in such amounts and
at such times as are necessary to enable Trustee to fulfill
its responsibilities under this Agreement and the
Certificates.
(b) Except as provided in Section 2.9, 6.9 or 7.2 or this
subsection 6.3(b), Transferor shall not transfer the
Transferor Certificate or any interest therein. Transferor may
surrender the Transferor Certificate to Trustee in exchange
for a newly issued Transferor Certificate and one or more
additional certificates (each a "Supplemental Certificate"),
the terms of which shall be defined in a Supplement (which
Supplement shall be subject to Section 13.1(a) to the extent
that it amends any of the terms of this Agreement), to be
delivered to or upon the order of Transferor (or the Holder of
a Supplemental Certificate, in the case of the transfer or
exchange thereof, as provided below), upon satisfaction of the
following conditions:
(i) Trustee shall have received an Officer's
Certificate of Transferor certifying that the Transferor
Interest shall not be less than the Minimum Transferor
Interest, in each case as of the date of, and after
giving effect to, such exchange;
(ii) the Rating Agency Condition shall have been
satisfied with respect to such exchange (or transfer or
exchange as provided below); and
(iii) Transferor shall have delivered to Trustee and
each Rating Agency a Tax Opinion, dated the date of such
exchange (or transfer or exchange as provided below),
with respect thereto.
Any Supplemental Certificate may be transferred or exchanged
only upon satisfaction of the conditions set forth in clauses
(ii) and (iii).
(c) Unless otherwise provided in the 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 the conditions set forth in such related
Supplement are satisfied.
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 instructions
from Servicer regarding such transfer. The Transfer Agent and
Registrar and 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. Servicer shall indemnify the
Transfer Agent and Registrar and Trustee and hold each of them
harmless against any loss, liability or expense incurred
without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by them in
reliance on any such written instructions furnished pursuant
to this subsection 6.3(c).
(d) The Transfer Agent and Registrar will maintain at its
expense in New York, New York (and subject to this Section
6.3, if specified in the related Supplement for any Series,
any other city designated in such Supplement) an office or
offices or any agency or agencies where Investor Certificates
of such Series may be surrendered for registration of transfer
or exchange.
(e) The Certificates of any Series (or if there is more
than one Class in a Series, each Class) may not be acquired
with the plan assets of (i) any "employee benefit plan" as
defined in Section 3(3) of ERISA, which is subject to Title I
of ERISA, or (ii) any "plan" as defined in Section 4975 of the
Internal Revenue Code (each a "Benefit Plan"), unless such
Series (or Class) has been registered under Section 12(b) or
Section 12(g) of the Securities Exchange Act of 1934, and the
underwriter or underwriters for such Series (or Class)
notifies Transferor and Trustee that as of the date
immediately following the conclusion of the offering, the
Certificates of such Series (or Class) have been sold to at
least 100 separately named persons. If the Certificates of
any Series (or Class) may not be acquired with plan assets
because the foregoing requirements are not satisfied, then
each purchaser and each transferee of such Certificates will
be deemed to represent and warrant that it is not purchasing
such Certificates with plan assets of a Benefit Plan.
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 and Trustee such security or
indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to Trustee that such
Certificate has been acquired by a bona fide purchaser,
Transferor shall execute and Trustee shall authenticate and
(unless the Transfer Agent and Registrar is different from
Trustee, in which case the Transfer Agent and Registrar shall)
deliver (in compliance with applicable law), in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and aggregate
Undivided Interest. In connection with the issuance of any new
Certificate under this Section 6.4, Trustee or the Transfer
Agent and Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses
(including the fees and expenses of Trustee and the Transfer
Agent and Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section 6.4 shall
constitute complete and indefeasible evidence of ownership in
the Trust, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
SECTION 6.5 Persons Deemed Owners. Prior to due
presentation of a Certificate for registration of transfer,
Trustee, the Paying Agent, the Transfer Agent and Registrar
and any agent of any of them may treat the Person in whose
name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions
pursuant to Article V (as described in any Supplement) and for
all other purposes whatsoever, and neither Trustee, the Paying
Agent, the Transfer Agent and Registrar nor any agent of any
of them shall be affected by any notice to the contrary;
provided that in determining whether the holders of Investor
Certificates evidencing the requisite Undivided Interests have
given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Investor Certificates owned by
Transferor, Servicer or any Affiliate thereof shall be
disregarded and deemed not to be outstanding, except that, in
determining whether Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice,
consent or waiver, only Investor Certificates which a
Responsible Officer knows to be so owned shall be so
disregarded. Investor Certificates so owned that have been
pledged in good faith shall not be disregarded as outstanding,
if the pledgee establishes to the satisfaction of Trustee the
pledgee's right so to act with respect to such Investor
Certificates and that the pledgee is not Transferor, Servicer
or an Affiliate thereof.
In the case of a Bearer Certificate, Trustee, the Paying
Agent, the Transfer Agent and Registrar and any agent 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
Article XII and for all other purposes whatsoever, and neither
Trustee, the Paying Agent, the Transfer Agent and Registrar
nor any agent of any of them shall be affected by any notice
to the contrary.
SECTION 6.6 Appointment of Paying Agent. (a) The Paying
Agent shall make distributions to Investor Holders from the
appropriate account or accounts maintained for the benefit of
Holders as specified in this Agreement or the related
Supplement for any Series pursuant to Articles IV and V. Any
Paying Agent shall have the revocable power to withdraw funds
from such appropriate account or accounts for the purpose of
making distributions referred to above. Trustee (or Servicer
if Trustee is the Paying Agent) may revoke such power and
remove the Paying Agent, if Trustee (or Servicer if 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. Trustee (or Servicer if Trustee is the Paying Agent)
shall notify the Rating Agencies of the removal of any Paying
Agent. The Paying Agent, unless the Supplement with respect to
any Series states otherwise, shall initially be Trustee. If
any form of Investor Certificate is issued as a Global
Certificate, or if and so long as any Series of Investor
Certificates are listed on the Luxembourg Stock Exchange and
such exchange shall so require, Trustee shall appoint a co-
paying agent in Luxembourg or another European city. Trustee
shall be permitted to resign as Paying Agent upon 30 days'
written notice to Servicer. In the event that Trustee shall no
longer be the Paying Agent, Trustee shall appoint a successor
to act as Paying Agent (which shall be a bank or trust
company). The provisions of Sections 11.1, 11.2 and 11.3 shall
apply to Trustee also in its role as Paying Agent, for so long
as 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, Transferor shall maintain a co-paying agent in
New York City (for Registered Certificates only) 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 the location
required by such other stock exchange.
(b) Trustee shall cause the Paying Agent (other than
itself) to execute and deliver to Trustee an instrument in
which such Paying Agent shall agree with Trustee that such
Paying Agent will hold all sums, if any, held by it for
payment to the Holders in trust for the benefit of the Holders
entitled thereto until such sums shall be paid to such Holders
and shall agree, and if Trustee is the Paying Agent it hereby
agrees, that it shall comply with all requirements of the
Internal Revenue Code regarding the withholding by Trustee of
payments in respect of Federal income taxes due from
Certificate Owners.
SECTION 6.7 Access to List of Holders' Names and
Addresses. Trustee shall furnish or cause to be furnished by
the Transfer Agent and Registrar to Servicer or the Paying
Agent, within five Business Days after receipt by Trustee of
a request therefor from Servicer or the Paying Agent,
respectively, in writing, a list in such form as Servicer or
the Paying Agent may reasonably require, of the names and
addresses of the Investor Holders as of the most recent Record
Date for payment of distributions to Investor Holders. Unless
otherwise provided in the related Supplement, Holders of the
Investor Certificates evidencing Undivided Interests
aggregating not less than 10% of the Investor Interest of the
Investor Certificates of any Series (the "Applicants") may
apply in writing to Trustee, and if such application states
that the Applicants desire to communicate with other Investor
Holders of any Series with respect to their rights under this
Agreement or under the Investor Certificates and is
accompanied by a copy of the communication which such
Applicants propose to transmit, then Trustee, after having
been adequately indemnified by such Applicants for its costs
and expenses, shall afford or shall cause the Transfer Agent
and Registrar to afford such Applicants access during normal
business hours to the most recent list of Holders held by
Trustee and shall give Servicer notice that such request has
been made, within five Business Days after the receipt of such
application. Such list shall be as of a date no more than 45
days prior to the date of receipt of such Applicants' request.
Every Holder, by receiving and holding a Certificate, agrees
with Trustee that neither Trustee, the Transfer Agent and
Registrar, nor any of their respective agents shall be held
accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders
hereunder, regardless of the source from which such
information was obtained.
SECTION 6.8 Authenticating Agent. (a) Trustee may
appoint one or more authenticating agents with respect to the
Certificates which shall be authorized to act on behalf of
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
Trustee or Trustee's certificate of authentication, such
reference shall be deemed to include authentication on behalf
of Trustee by an authenticating agent and a certificate of
authentication executed on behalf of Trustee by an
authenticating agent. Each authenticating agent must be
acceptable to 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 Trustee or such
authenticating agent.
(c) An authenticating agent may at any time resign by
giving written notice of resignation to Trustee and to
Transferor. Trustee may at any time terminate the agency of an
authenticating agent by giving notice of termination to such
authenticating agent and to 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 Trustee or Transferor, 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
Trustee and Transferor.
(d) Trustee agrees to pay each authenticating agent from
time to time reasonable compensation for its services under
this Section 6.8, and Trustee shall be entitled to be
reimbursed and Servicer shall reimburse Trustee for such
reasonable payments actually made, subject to the provisions
of Section 11.5.
(e) The provisions of Sections 11.1, 11.2 and 11.3 shall
be applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section
6.8, the Certificates may have endorsed thereon, in lieu of
Trustee's certificate of authentication, an alternate
certificate of authentication in substantially the following
form:
"This is one of the certificates described in the
Pooling and Servicing Agreement.
_______________________________________
as Authenticating Agent for Trustee,
By:____________________________________
Authorized Officer"
SECTION 6.9 New Issuances. (a) Upon request by
Transferor from time to time, Trustee shall issue to
Transferor under Section 6.1, for execution and redelivery to
Trustee for authentication under Section 6.2, one or more new
Series of Investor Certificates. Any such Series shall be
substantially in the form specified in the related Supplement
and shall bear, upon its face, the designation for such Series
to which it belongs, as selected by Transferor. Except as
specified in any Supplement for a related Series, all Investor
Certificates of any Series shall rank pari passu and be
equally and ratably entitled as provided herein to the
benefits hereof (except that the Credit Enhancement provided
for any Series shall not be available for any other Series)
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 related Supplement.
(b) Transferor may require Trustee to issue to Transferor
under Section 6.1, for execution and redelivery to Trustee for
authentication under Section 6.2, one or more newly issued
Series of Investor Certificates or in connection with a Paired
Series, interests in such Series, in exchange for a reduction
in the Transferor Interest (any such transaction, a
"Transferor Issuance"). In addition, to the extent permitted
for any Series of Investor Certificates as specified in the
related Supplement (and subject to any applicable requirements
under the Securities Exchange Act of 1934 and the rules and
regulations thereunder, including Rule 13e-4), the Investor
Holders of such Series may tender their Investor Certificates
to Trustee pursuant to the terms and conditions set forth in
such Supplement in exchange for one or more newly issued
Series of Investor Certificates (an "Investor Issuance").
Transferor may initiate an Issuance by notifying Trustee, in
writing at least three days in advance (an "Issuance Notice")
of the date upon which the Issuance is to occur (an "Issuance
Date"). Any Issuance Notice shall state the designation of any
Series (and Class thereof, if applicable) to be issued on the
Issuance Date and, with respect to each such Series, its
Initial Investor Interest (or the method for calculating such
Initial Investor Interest), the applicable interest rate (or
the method for allocating interest payments or other cash
flows to such Series), if any, and the Credit Enhancement
Provider, if any, with respect to such Series. On the Issuance
Date, Trustee shall authenticate and deliver any such Series
of Investor Certificates only upon delivery to it of the
following: (1) a Supplement satisfying the criteria set forth
in subsection 6.9(c) executed by Transferor and specifying the
Principal Terms of such Series, (2) the applicable Credit
Enhancement, if any, (3) the agreement, if any, pursuant to
which the Credit Enhancement Provider agrees to provide the
Credit Enhancement, if any, (4) a Tax Opinion, (5) evidence
that the Rating Agency Condition has been satisfied with
respect to the Issuance, (6) an Officer's Certificate signed
by a Vice President (or any more senior officer) of
Transferor, that on the Issuance Date (i) Transferor, after
giving effect to the Issuance, would not be required to add
Additional Accounts pursuant to subsection 2.6(a) and
(ii) after giving effect to such Issuance, the Transferor
Interest would be at least equal to the Minimum Transferor
Interest, and (7) the existing Investor Certificates, in the
case of an Investor Issuance. Upon satisfaction of such
conditions, Trustee shall issue as provided above, such Series
of Investor Certificates, dated the Issuance Date and, in the
case of an Investor Issuance, cancel the Investor Certificates
tendered in exchange for the new Series. There is no limit to
the number of Issuances that may be performed under this
Agreement.
(c) In conjunction with an Issuance, the parties hereto
shall execute a Supplement, which shall specify the relevant
terms with respect to any newly issued Series of Investor
Certificates, which may include: (i) its name or designation,
(ii) an Initial Investor Interest or the method of calculating
the Initial Investor Interest, (iii) the method of determining
any adjusted Investor Interest, if applicable, (iv) the
applicable interest rate (or formula for its determination),
(v) the Closing Date, (vi) each rating agency rating such
Series, (vii) the name of the Clearing Agency, if any, (viii)
the rights of Transferor that have been transferred to the
Holders of such Series pursuant to such Issuance (including
any rights to allocations of Collections of Finance Charge
Receivables and Principal Receivables), (ix) the interest
payment date or dates and the date or dates from which
interest shall accrue, (x) the periods during which or dates
on which principal will be paid or accrued, (xi) the method of
allocating Collections with respect to Principal Receivables
for such Series and, if applicable, with respect to other
Series and the method by which the principal amount of
Investor Certificates of such Series shall amortize or accrete
and the method for allocating Collections with respect to
Finance Charge Receivables and Receivables in Defaulted
Accounts, (xii) any other Collections with respect to
Receivables or other amounts available to be paid with respect
to such Series, (xiii) the names of any accounts to be used by
such Series and the terms governing the operation of any such
account and use of monies therein, (xiv) the Investor
Servicing Fee and the Series Servicing Fee Percentage, (xv)
the Minimum Transferor Interest and the Series Termination
Date, (xvi) the terms of any Credit Enhancement with respect
to such Series, and the Credit Enhancement Provider, if
applicable, (xvii) the base rate applicable to such Series,
(xviii) the terms on which the Certificates of such Series may
be repurchased or remarketed to other investors, (xix) any
deposit into any account provided for such Series, (xx) the
number of Classes of such Series, and if more than one Class,
the rights and priorities of each such Class, (xxi) whether
Interchange or other fees will be included in the funds
available to be paid for such Series, (xxii) the priority of
any Series with respect to any other Series, (xxiii) the
rights, if any, of Transferor that have been transferred to
the holders of such Series, (xxiv) the Minimum Aggregate
Principal Receivables, (xxv) whether such Series will be part
of a Group, (xxvi) whether such Series will be a Principal
Sharing Series, (xxvii) whether such Series will or may be a
Paired Series and the Series with which it will be paired, if
applicable and (xxviii) any other relevant terms of such
Series (including whether or not such Series will be pledged
as collateral for an issuance of any other securities,
including commercial paper) (all such terms, the "Principal
Terms" of such Series). The terms of such Supplement may
modify or amend the terms of this Agreement solely as applied
to such new Series.
(d) Upon satisfaction of the above conditions (mutatis
mutandis), Transferor may also cause Trustee to enter into one
or more agreements pursuant to which Trustee shall sell
purchased interests in the Receivables and other Trust Assets
to one or more purchasers. Such agreement(s) shall specify
terms similar to Principal Terms for any such purchased
interests and may grant the purchaser(s) of such interests, or
an agent or other representative of such purchaser(s), notice
and consultation rights with respect to any rights or actions
of Trustee.
SECTION 6.10 Book-Entry Certificates. Unless otherwise
provided in any related Supplement, the Investor Certificates,
upon original issuance, shall be issued in the form of
typewritten Certificates representing the Book-Entry
Certificates, to be delivered to the depository specified in
such Supplement (the "Depository") for the Clearing Agency or
Foreign Clearing Agency for such Series. The Investor
Certificates of each Series shall, unless otherwise provided
in the related Supplement, initially be registered on the
Certificate Register in the name of the nominee of the
Clearing Agency or Foreign Clearing Agency. No Certificate
Owner will receive a definitive certificate representing such
Certificate Owner's interest in the related Series of Investor
Certificates, except as provided in Section 6.12. Unless and
until definitive, fully registered Investor Certificates of
any Series ("Definitive Certificates") have been issued to
Certificate Owners pursuant to Section 6.12:
(i) the provisions of this Section 6.10 shall be in
full force and effect with respect to each such Series;
(ii) Transferor, Servicer, the Paying Agent, the
Transfer Agent and Registrar and Trustee may deal with
the Clearing Agency and the Clearing Agency Participants
for all purposes (including the making of distributions
on the Investor Certificates of each such Series) as the
authorized representatives of the Certificate Owners;
(iii) to the extent that the provisions of this
Section 6.10 conflict with any other provisions of this
Agreement, the provisions of this Section 6.10 shall
control with respect to each such Series; and
(iv) the rights of Certificate Owners of each such
Series shall be exercised only through the Clearing
Agency or Foreign Clearing Agency and the applicable
Clearing Agency Participants and shall be limited to
those established by law and agreements between such
Certificate Owners and the Clearing Agency or Foreign
Clearing Agency and/or the Clearing Agency Participants.
Pursuant to the Depository Agreement applicable to a
Series, unless and until Definitive Certificates of such
Series are issued pursuant to Section 6.12, the initial
Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit
distributions of principal and interest on the Investor
Certificates to such Clearing Agency Participants.
SECTION 6.11 Notices to Clearing Agency. Whenever notice
or other communication to the Holders is required under this
Agreement, unless and until Definitive Certificates shall have
been issued to Certificate Owners pursuant to Section 6.12,
Trustee shall give all such notices and communications
specified herein to be given to Holders of the Investor
Certificates to the Clearing Agency or Foreign Clearing Agency
for distribution to Holders of Investor Certificates.
SECTION 6.12 Definitive Certificates. If (i) (A)
Transferor advises Trustee in writing that the Clearing Agency
or Foreign Clearing Agency is no longer willing or able to
discharge properly its responsibilities under the applicable
Depository Agreement, and (B) Trustee or Transferor is unable
to locate a qualified successor, (ii) Transferor, at its
option, advises Trustee in writing that it elects to terminate
the book-entry system through the Clearing Agency or Foreign
Clearing Agency with respect to any Series of Certificates or
(iii) after the occurrence of a Servicer Default, Certificate
Owners of a Series representing beneficial interests
aggregating not less than 50% of the Investor Interest of such
Series advise Trustee and the applicable Clearing Agency or
Foreign Clearing Agency through the applicable Clearing Agency
Participants in writing that the continuation of a book-entry
system through the applicable Clearing Agency or Foreign
Clearing Agency is no longer in the best interests of the
Certificate Owners, Trustee shall notify all Certificate
Owners or, with respect to clauses (ii) and (iii), Certificate
Owners of the applicable Series, through the applicable
Clearing Agency Participants, of the occurrence of any such
event and of the availability of Definitive Certificates to
all Certificate Owners or, as the case may be, Certificate
Owners of such series, in each case requesting the same. Upon
surrender to Trustee of all Investor Certificates or the
Investor Certificates of such Series by the applicable
Clearing Agency or Foreign Clearing Agency, accompanied by
registration instructions from the applicable Clearing Agency
or Foreign Clearing Agency for registration, Trustee shall
issue the applicable Definitive Certificates. Neither
Transferor nor Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on,
and shall be protected in relying on, such instructions. Upon
the issuance of Definitive Certificates of any Series, all
references herein to obligations imposed upon or to be
performed by the applicable Clearing Agency or Foreign
Clearing Agency shall be deemed to be imposed upon and
performed by Trustee, to the extent applicable with respect to
such Definitive Certificates, and Trustee shall recognize the
Holders of the Definitive Certificates of such Series as
Holders of such Series hereunder.
SECTION 6.13 Global Certificate; Euro-Certificate
Exchange Date. 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 Interest and
substantially in the form attached to the related Supplement.
Unless otherwise specified in the related Supplement, the
provisions of this Section 6.13 shall apply to such Global
Certificate. The Global Certificate will be authenticated by
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 in the
manner described in the related Supplement for Registered or
Bearer Certificates in definitive form.
SECTION 6.14 Meetings of Holders. To the extent provided
by the Supplement for any Series issued in whole or in part in
Bearer Certificates, Servicer or Trustee may at any time call
a meeting of the Holders of such Series, to be held at such
time and at such place as Servicer or 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.
ARTICLE VII OTHER MATTERS RELATING TO TRANSFEROR
SECTION 7.1 Liability of Transferor. Transferor shall be
liable in accordance herewith only to the extent of the
obligations specifically undertaken by Transferor.
SECTION 7.2 Merger or Consolidation of, or Assumption of
the Obligations of, Transferor. (a) Transferor shall not
consolidate with or merge into any other Person or convey or
transfer its properties and assets substantially as an
entirety to any Person, unless:
(i) the Person formed by such consolidation or into
which Transferor is merged or the Person which acquires
by conveyance or transfer the properties and assets of
Transferor substantially as an entirety shall be, if
Transferor is not the surviving entity, organized and
existing under the laws of the United States of America
or any State or the District of Columbia, and shall be a
national banking association, state banking corporation
or other entity which is not subject to the bankruptcy
laws of the United States of America and shall expressly
assume, by an agreement supplemental hereto, executed and
delivered to Trustee, in form satisfactory to Trustee,
the performance of every covenant and obligation of
Transferor, as applicable hereunder, and shall benefit
from all the rights granted to Transferor, as applicable
hereunder. To the extent that any right, covenant or
obligation of Transferor, as applicable hereunder, is
inapplicable to the successor entity, such successor
entity shall be subject to such covenant or obligation,
or benefit from such right, as would apply, to the extent
practicable, to such successor entity. In furtherance
hereof, in applying this Section 7.2 to a successor
entity, Section 9.2 shall be applied by reference to
events of involuntary liquidation, receivership or
conservatorship applicable to such successor entity as
shall be set forth in the officer's certificate described
in subsection 7.2(a)(ii);
(ii) Transferor shall have delivered to Trustee an
Officer's Certificate signed by a Vice President (or any
more senior officer) of Transferor stating that such
consolidation, merger, conveyance or transfer and such
supplemental agreement comply with this Section 7.2 and
that all conditions precedent herein provided for
relating to such transaction have been complied with and
an Opinion of Counsel that such supplemental agreement is
legal, valid and binding; and
(iii) Transferor shall have delivered notice to each
Rating Agency of such consolidation, merger, conveyance
or transfer.
(b) Upon satisfaction of the following conditions
Transferor may sell or otherwise dispose of all Trust Assets
to any other Person, which Person shall thereafter be
Transferor and, if so agreed, Servicer for all purposes of
this Agreement:
(i) Transferor delivers an Opinion of Counsel to
Trustee; and
(ii) the Rating Agency Condition is satisfied.
In connection with such designation, the old Transferor
shall surrender the Transferor Certificate to Trustee in
exchange for a Transferor Certificate issued to the new
Transferor.
(c) The obligations of Transferor hereunder shall not be
assignable nor shall any Person succeed to the obligations of
Transferor hereunder except as described in subsection (a) and
(b) above and in Section 2.9.
SECTION 7.3 Limitation on Liability. Transferor and its
directors, officers, employees and agents shall not be under
any liability to the Trust, Trustee, the Holders, any Credit
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 that this provision
shall not protect Transferor or its officers, directors,
employees, or agents against any liability which would
otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties
hereunder, or under any Supplement.
ARTICLE VIII OTHER MATTERS RELATING TO SERVICER
SECTION 8.1 Liability of Servicer. Servicer shall be
liable in accordance herewith only to the extent of the
obligations specifically undertaken by Servicer in such
capacity herein.
SECTION 8.2 Merger or Consolidation of, or Assumption of
the Obligations of, Servicer. Servicer shall not consolidate
with or merge into any other Person or convey or transfer its
properties and assets substantially as an entirety to any
Person, unless:
(i) the Person formed by such consolidation or into
which Servicer is merged or the Person which acquires by
conveyance or transfer the properties and assets of
Servicer substantially as an entirety shall be a Person
organized and existing under the laws of the United
States of America or any State or the District of
Columbia, and shall be a national banking association,
state banking corporation or other entity which is not
subject to the bankruptcy laws of the United States of
America and, if Servicer is not the surviving entity,
shall expressly assume, by an agreement supplemental
hereto, executed and delivered to Trustee in form
satisfactory to Trustee, the performance of every
covenant and obligation of Servicer hereunder (and to the
extent that any right, covenant or obligation of
Servicer, as applicable hereunder, is inapplicable to the
successor entity, such successor entity shall be subject
to such covenant or obligation, or benefit from such
right, as would apply, to the extent practicable, to such
successor entity);
(ii) Servicer shall have delivered to Trustee an
Officer's Certificate 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 and an Opinion of
Counsel that such supplemental agreement is legal, valid
and binding with respect to Servicer; and
(iii) Servicer shall have delivered notice to the
Rating Agency of such consolidation, merger, conveyance
or transfer.
SECTION 8.3 Limitation on Liability of Servicer and
Others. The directors, officers, employees or agents of
Servicer shall not be under any liability to the Trust,
Trustee, the Holders, any Credit 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
that this provision shall not protect the directors, officers,
employees and agents of Servicer against any liability which
would otherwise be imposed by reason of willful misfeasance,
bad faith or gross negligence in the performance of duties or
by reason of reckless disregard of obligations and duties
hereunder. Except as provided in Section 8.4 with respect to
the Trust and Trustee, its officers, directors, employees and
agents, Servicer shall not be under any liability to the
Trust, Trustee, its officers, directors, employees and agents,
the Holders or any other Person for any action taken or for
refraining from the taking of any action in its capacity as
Servicer pursuant to this Agreement or any Supplement;
provided that this provision shall not protect Servicer
against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or gross negligence
in the performance of duties or by reason of its reckless
disregard of its obligations and duties hereunder or under any
Supplement. 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. 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
which in its reasonable opinion may involve it in any expense
or liability.
SECTION 8.4 Servicer Indemnification of the Trust and
Trustee. Servicer shall indemnify and hold harmless the Trust
and Trustee, its officers, directors, employees and agents,
from and against any reasonable loss, liability, expense,
damage or injury suffered or sustained by reason of any acts
or omissions or alleged acts or omissions of Servicer with
respect to activities of the Trust or Trustee 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 that (a) Servicer shall not indemnify Trustee
if such acts, omissions or alleged acts or omissions
constitute or are caused by fraud, negligence, or willful
misconduct by Trustee, (b) Servicer shall not indemnify the
Trust, the Investor Holders or the Certificate Owners for any
liabilities, costs or expenses of the Trust with respect to
any action taken by Trustee at the request of the Investor
Holders, (c) Servicer shall not indemnify the Trust, the
Investor Holders or the Certificate Owners as to any losses,
claims or damages incurred by any of them in their capacities
as investors, including losses incurred as a result of
Defaulted Accounts or Receivables which are charged off as
uncollectible and (d) that Servicer shall not indemnify the
Trust, the Investor Holders or the Certificate Owners for any
liabilities, costs or expenses of the Trust, the Investor
Holders or the Certificate Owners arising under any tax law,
including any Federal, state, local or foreign income or
franchise taxes or any other tax imposed on or measured by
income (or any interest or penalties with respect thereto or
arising from a failure to comply therewith) required to be
paid by the Trust, the Investor Holders or the Certificate
Owners in connection herewith to any taxing authority. Any
such indemnification shall not be payable from the assets of
the Trust. The provisions of this indemnity shall run directly
to and be enforceable by an injured party subject to the
limitations hereof and shall survive termination of this
Agreement and the resignation or removal of Trustee.
SECTION 8.5 Servicer Not to Resign. Except as provided
in subsection 7.2(b), Servicer shall not resign from the
obligations and duties hereby imposed on it except upon
determination that (i) the performance of its duties hereunder
is no longer permissible under applicable law and (ii) there
is no reasonable action which Servicer could take to make the
performance of its duties hereunder permissible under
applicable law. Any such determination permitting the
resignation of Servicer shall be evidenced as to clause (i) by
an Opinion of Counsel to such effect delivered to Trustee. No
such resignation shall become effective until Trustee or a
Successor Servicer shall have assumed the responsibilities and
obligations of Servicer in accordance with Section 10.2. If
Trustee is unable within 120 days of the date of such
determination to appoint a Successor Servicer, Trustee shall
serve as Successor Servicer hereunder until such time as
Trustee shall appoint a Successor Servicer and such Successor
Servicer shall have assumed the responsibilities and
obligations of Servicer in accordance with Section 10.2.
SECTION 8.6 Access to Certain Documentation and
Information Regarding the Receivables. Servicer shall provide
Trustee access to the documentation regarding the Accounts and
the Receivables when Trustee is required in connection with
the enforcement of the rights of the Investor Holders, or by
applicable law, to review such documentation, such access
being afforded without charge but only upon reasonable
request, during normal business hours, subject to Servicer's
normal security and confidentiality procedures and at offices
designated by Servicer. Nothing in this Section 8.6 shall
derogate from the obligation of Transferor, Trustee or
Servicer to observe any applicable law prohibiting disclosure
of information regarding the Obligors, and the failure of
Servicer to provide access as provided in this Section 8.6 as
a result of such obligations shall not constitute a breach of
this Section 8.6.
SECTION 8.7 Delegation of Duties. In the ordinary course
of business, Servicer may at any time delegate any duties
hereunder to any Person who agrees to conduct such duties in
accordance with the Account Guidelines. Any such delegations
shall not relieve 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 to a party other than an Affiliate of
Transferor, notification thereof shall be given to each Rating
Agency.
SECTION 8.8 Examination of Records. Servicer shall
clearly and unambiguously identify each Account (including any
Additional Account designated pursuant to Section 2.6) in its
computer or other records to reflect that the Receivables
arising in such Account have been conveyed to the Trust
pursuant to this Agreement. 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 TRUST PAY OUT EVENTS
SECTION 9.1 Trust Pay Out Events. Each of the following
events (each, a "Trust Pay Out Event") shall constitute a Pay
Out Event with respect to all Series of Certificates,
immediately upon the occurrence of such event, and without any
notice or other action on the part of Trustee or the Investor
Holders:
(a) Transferor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings 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 insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against
Transferor; or Transferor shall admit in writing its inability
to pay its debts generally as they become due, file a petition
to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of
its creditors or voluntarily suspend payment of its
obligations; or Transferor shall become unable for any reason
to transfer Receivables to the Trust in accordance with the
provisions of this Agreement; or
(b) the Trust shall become an "investment company" within
the meaning of the Investment Company Act.
SECTION 9.2 Additional Rights Upon the Occurrence of
Certain Events. If Transferor shall consent to the appointment
of a conservator or receiver or liquidator for the winding-up
or liquidation of its affairs, or a decree or order of a court
or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator or receiver or
liquidator for the winding-up or liquidation of its affairs
shall have been entered against Transferor (an "Insolvency
Event"), Transferor shall on the day of such Insolvency Event
immediately cease to transfer Principal Receivables and
Discount Option Receivables to the Trust and shall promptly
give notice to Trustee of such Insolvency Event.
Notwithstanding any cessation of the transfer to the Trust of
additional Principal Receivables and Discount Option
Receivables, Finance Charge Receivables, whenever created,
accrued in respect of Principal Receivables or Discount Option
Receivables which have been transferred to the Trust shall
continue to be a part of the Trust, and Collections with
respect thereto shall continue to be allocated and paid in
accordance with Article IV.
ARTICLE X SERVICER DEFAULTS
SECTION 10.1 Servicer Defaults. If any one of the
following events (a "Servicer Default") shall occur and be
continuing:
(a) any failure by Servicer to make any payment, transfer
or deposit or to give instructions or notice to Trustee
pursuant to Article IV or to instruct Trustee to make any
required drawing, withdrawal, or payment under any Credit
Enhancement on or before the date occurring ten Business Days
after the date such payment, transfer, deposit withdrawal or
drawing or such instruction or notice is required to be made
or given, as the case may be, under the terms of this
Agreement;
(b) failure on the part of Servicer duly to observe or
perform in any respect any other covenants or agreements of
Servicer set forth in this Agreement, which has a material
adverse effect on the Investor Holders of any Series 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 Servicer by Trustee, or to
Servicer and Trustee by the Holders of Investor Certificates
evidencing Undivided Interests aggregating not less than 25%
of the Investor Interest of any Series adversely affected
thereby and continue to materially adversely affect such
Investor Holders for such period; or Servicer shall delegate
its duties under this Agreement, except as permitted by
Section 8.7;
(c) any representation, warranty or certification made by
Servicer in this Agreement or in any certificate delivered
pursuant to this Agreement shall prove to have been incorrect
when made, which has a material adverse effect on the Investor
Holders of any Series and which continues to be incorrect in
any material respect for a period of 60 days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given to Servicer by Trustee, or to
Servicer and Trustee by the Holders of Investor Certificates
evidencing Undivided Interests aggregating not less than 25%
of the Investor Interest of any Series adversely affected
thereby and continues to materially adversely affect such
Investor Holders for such period; or
(d) Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to 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 insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidating of
its affairs, shall have been entered against Servicer, and
such decree or order shall have remained in force undischarged
or unstayed for a period of 60 days; or 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 insolvency or reorganization statute, make any
assignment for the benefit of its creditors or voluntarily
suspend payment of its obligations; then, so long as such
Servicer Default shall not have been remedied, either Trustee,
or the Holders of Investor Certificates evidencing Undivided
Interests aggregating more than 50% of the Aggregate Investor
Interest, by notice then given in writing to Servicer (and to
Trustee if given by the Investor Holders) (a "Termination
Notice"), may terminate all of the rights and obligations of
Servicer as Servicer under this Agreement.
After receipt by Servicer of such Termination Notice, and
on the date that a Successor Servicer shall have been
appointed by Trustee pursuant to Section 10.2, all authority
and power of Servicer under this Agreement shall pass to and
be vested in a Successor Servicer; and Trustee is hereby
authorized and empowered (upon the failure of Servicer to
cooperate) to execute and deliver, on behalf of Servicer, as
attorney-in-fact or otherwise, all documents and other
instruments upon the failure of 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
purpose of such transfer of servicing rights and obligations.
Servicer agrees to cooperate with Trustee and such Successor
Servicer in effecting the termination of the responsibilities
and rights of Servicer to conduct servicing hereunder
including the transfer to such Successor Servicer of all
authority of Servicer to service the Receivables provided for
under this Agreement, including all authority over all
Collections which shall on the date of transfer be held by
Servicer for deposit, or which have been deposited by
Servicer, in the Collection Account, the Finance Charge
Account, the Excess Funding Account, and any Series Account,
or which shall thereafter be received with respect to the
Receivables, and in assisting the Successor Servicer and in
enforcing all rights to Insurance Proceeds and Interchange (if
any) applicable to the Trust. Servicer shall promptly transfer
its electronic records or electronic copies thereof 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 Servicer to disclose to the Successor Servicer
information of any kind which Servicer reasonably deems to be
confidential, the Successor Servicer shall be required to
enter into such customary licensing and confidentiality
agreements as Servicer shall deem necessary to protect its
interests. Servicer shall, on the date of any servicing
transfer, transfer all of its rights and obligations under the
Credit Enhancement with respect to any Series to the Successor
Servicer.
Notwithstanding the foregoing, a delay in or failure of
performance referred to in subsection 10.1(a) for a period of
30 Business Days or under subsection 10.1(b) or (c) for a
period of 60 Business Days, shall not constitute a Servicer
Default if such delay or failure could not be prevented by the
exercise of reasonable diligence by Servicer and such delay or
failure was caused by an act of God or the public enemy, acts
of declared or undeclared war, public disorder, rebellion,
riot or sabotage, epidemics, landslides, lightning, fire,
hurricanes, tornadoes, earthquakes, nuclear disasters or
meltdowns, floods, power outages or similar causes. The
preceding sentence shall not relieve Servicer from using its
best efforts to perform its obligations in a timely manner in
accordance with the terms of this Agreement and Servicer shall
provide Trustee, any Credit Enhancement Provider, Transferor
and the Holders of Investor Certificates 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 and its efforts to so perform its obligations.
SECTION 10.2 Trustee to Act; Appointment of Successor.
(a) On and after the receipt by Servicer of a Termination
Notice pursuant to Section 10.1, Servicer shall continue to
perform all servicing functions under this Agreement until the
date specified in the Termination Notice or otherwise
specified by Trustee in writing or, if no such date is
specified in such Termination Notice or otherwise specified by
Trustee, until a date mutually agreed upon by Servicer and
Trustee. Trustee shall notify each Rating Agency of such
removal of Servicer. Trustee shall, as promptly as possible
after the giving of a Termination Notice appoint a successor
servicer (the "Successor Servicer"), and such Successor
Servicer shall accept its appointment by a written assumption
in a form acceptable to Trustee. Trustee may obtain bids from
any potential successor servicer. If a Successor Servicer has
not been appointed and has not accepted its appointment at the
time when Servicer ceases to act as Servicer, Trustee without
further action shall automatically be appointed the Successor
Servicer. Notwithstanding the above, Trustee shall, if it is
legally unable so to act, petition a court of competent
jurisdiction to appoint any established financial institution
having, in the case of an entity that is subject to risk-based
capital adequacy requirements, risk-based capital of at least
$50,000,000 or, in the case of an entity that is not subject
to risk-based capital requirements, having a net worth of not
less than $50,000,000 and in each case whose regular business
includes the servicing of VISA or MasterCard credit card
receivables as the Successor Servicer hereunder.
(b) Upon its appointment, the Successor Servicer shall be
the successor in all respects to Servicer with respect to
servicing functions under this Agreement and shall be subject
to all the responsibilities, duties and liabilities relating
thereto placed on Servicer by the terms and provisions hereof,
and all references in this Agreement to Servicer shall be
deemed to refer to the Successor Servicer. Any Successor
Servicer, by its acceptance of its appointment, will
automatically agree to be bound by the terms and provisions of
each Credit Enhancement.
(c) In connection with such appointment and assumption,
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 that no such compensation shall be in
excess of the Servicing Fee permitted to Servicer pursuant to
Section 3.2. Transferor agrees that if Servicer is terminated
hereunder, it will agree to deposit a portion of the
Collections in respect of Finance Charge Receivables that it
is entitled to receive pursuant to Article IV to pay its share
of the compensation of the Successor Servicer.
(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 Transferor and
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 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 Transferor in such electronic form as
Transferor may reasonably request and shall transfer all other
records, correspondence and documents to Transferor in the
manner and at such times as Transferor shall reasonably
request. To the extent that compliance with this Section 10.2
shall require the Successor Servicer to disclose to Transferor
information of any kind which the Successor Servicer deems to
be confidential, Transferor shall be required to enter into
such customary licensing and confidentiality agreements as the
Successor Servicer shall deem necessary to protect its
interests.
SECTION 10.3 Notification to Holders. Within two
Business Days after Servicer becomes aware of any Servicer
Default, Servicer shall give prompt written notice thereof to
Trustee and any Credit Enhancement Provider, and Trustee shall
give notice to the Investor Holders at their respective
addresses appearing in the Certificate Register. Upon any
termination or appointment of a Successor Servicer pursuant to
this Article X, Trustee shall give prompt written notice
thereof to Investor Holders at their respective addresses
appearing in the Certificate Register.
SECTION 10.4 Waiver of Past Defaults. The Holders of
Investor Certificates evidencing Undivided Interests
aggregating not less than 66-2/3% of the Investor Interest of
each Series adversely affected by any default by Servicer or
Transferor may, on behalf of all Holders of such Series, waive
any default by Servicer or Transferor in the performance of
its obligations hereunder and its consequences, except a
default in the failure to make any required deposits or
payments of interest or principal relating to such Series
pursuant to Article IV which default does not result from the
failure of the Paying Agent to perform its obligations to make
any required deposits or payments of interest and principal in
accordance with Article IV. 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 TRUSTEE
SECTION 11.1 Duties of Trustee. (a) Trustee, prior to
the occurrence of any Servicer Default and after the curing of
all Servicer Defaults which may have occurred, undertakes to
perform such duties and only such duties as are specifically
set forth in this Agreement. If a Responsible Officer has
received written notice that a Servicer Default has occurred
(which has not been cured or waived), Trustee shall exercise
such of the rights and powers vested in it by this Agreement,
and use the same degree of care and skill in its exercise, as
a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders
or other instruments furnished to Trustee which are
specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine
whether they substantially conform to the requirements of this
Agreement.
(c) Subject to subsection 11.1(a), no provision of this
Agreement shall be construed to relieve Trustee from liability
for its own negligent action, its own negligent failure to act
or its own misconduct; provided that:
(i) Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible
Officer or Responsible Officers of Trustee, unless it
shall be proved that Trustee was negligent in
ascertaining the pertinent facts;
(ii) 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 Interest of any Series relating to the
time, method and place of conducting any proceeding for
any remedy available to Trustee, or exercising any trust
or power conferred upon Trustee in relation to such
Series, under this Agreement; and
(iii) Trustee shall not be charged with knowledge of
any failure by Servicer referred to in clauses (a), (b)
or (c) of Section 10.1 unless a Responsible Officer of
Trustee obtains actual knowledge of such failure or
Trustee receives written notice of such failure from
Servicer or any Holders of Investor Certificates
evidencing Undivided Interests aggregating not less than
10% of the Investor Interest of any Series adversely
affected thereby.
(d) Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the
performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if there is reasonable ground
for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured to it, and none of the provisions contained in this
Agreement shall in any event require Trustee to perform, or be
responsible for the manner of performance of, any of the
obligations of Servicer under this Agreement except during
such time, if any, as Trustee shall be the successor to, and
be vested with the rights, duties, powers and privileges of,
Servicer in accordance with the terms of this Agreement.
(e) Except for actions expressly authorized by this
Agreement, 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 provided in this subsection 11.1(f),
Trustee shall have no power to vary the corpus of the Trust
including the power to (i) accept any substitute obligation
for a Receivable assigned to the Trust under Section 2.1 or
2.6, (ii) add any other investment, obligation or security to
the Trust, except for an addition permitted under Section 2.6,
or (iii) withdraw from the Trust any Receivables, except for
a withdrawal permitted under Sections 2.7, 9.2, 10.2, 12.1 or
12.2 or subsections 2.4(d), 2.4(e) or Article IV.
(g) If the Paying Agent or the Transfer Agent and
Registrar shall fail to perform any obligation, duty or
agreement in the manner or on the day required to be performed
by the Paying Agent or the Transfer Agent and Registrar, as
the case may be, under this Agreement, then, subject to
subsection 11.1(d), Trustee shall be obligated promptly to
perform such obligation, duty or agreement in the manner so
required.
(h) If Transferor has agreed to transfer any of its
credit card receivables (other than the Receivables) to
another Person, upon the written request of Transferor,
Trustee shall enter into such intercreditor agreements with
the transferee of such receivables as are customary and
necessary to identify separately the rights, if any, of the
Trust and such other Person in Transferor's credit card
receivables; provided that Trustee shall not be required to
enter into any intercreditor agreement which could adversely
affect the interests of the Holders and, upon the request of
Trustee, Transferor will deliver an Opinion of Counsel on any
matters relating to such intercreditor agreement, reasonably
requested by Trustee.
SECTION 11.2 Certain Matters Affecting Trustee. Except
as otherwise provided in Section 11.1:
(a) Trustee may rely on and shall be protected in acting
on, or in refraining from acting in accord with, any
assignment of Receivables in Additional Accounts, the initial
report, the monthly Servicer's certificate, the annual
Servicer's certificate, the monthly payment instructions and
notification to Trustee, the monthly Holder's statement, any
resolution, Officer's Certificate, certificate of auditors or
any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have
been signed or presented to it pursuant to this Agreement by
the proper party or parties;
(b) Trustee may consult with counsel selected by it in
good faith, and any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and
in accordance with such Opinion of Counsel;
(c) Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement or any
Credit Enhancement, or to institute, conduct or defend any
litigation hereunder or in relation hereto, at the request,
order or direction of any of the Holders or any Credit
Enhancement Provider, pursuant to the provisions of this
Agreement, unless such Holders or Credit Enhancement Provider
shall have offered to Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be
incurred therein or thereby; nothing contained herein shall,
however, relieve Trustee of the obligations, upon the
occurrence of any Servicer Default (which has not been cured),
to exercise such of the rights and powers vested in it by this
Agreement and any Credit Enhancement, and to use the same
degree of care and skill in its exercise as a prudent person
would exercise or use under the circumstances in the conduct
of his own affairs;
(d) Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(e) Trustee shall not be bound to make any investigation
into the facts of matters stated in any assignment of
Receivables in Accounts as of the Cut-Off Date or any
Additional Accounts, any Reassignment of Removed Accounts, the
initial report, any daily Servicer's report, the monthly
Servicer's certificate, the annual Servicer's certificate, the
monthly payment instructions and notification to Trustee, the
monthly Holder's statement, any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document,
unless requested in writing so to do by Holders of Investor
Certificates evidencing Undivided Interests aggregating more
than 50% of the Investor Interest of any Series which could be
adversely affected if Trustee does not perform such acts;
(f) Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys or a custodian, and Trustee
shall not be responsible for any misconduct or negligence on
the part of any such agent, attorney or custodian (including
any Transfer Agent and Registrar or Paying Agent) appointed
with due care by it hereunder; and
(g) Except as may be required by subsection 11.1(a),
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
Transferor with its representations and warranties or for any
other purpose.
SECTION 11.3 Trustee Not Liable for Recitals in
Certificates. Trustee assumes no responsibility for the
correctness of the recitals contained herein and in the
Certificates (other than the certificate of authentication on
the Certificates). Except as set forth in Section 11.15,
Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates (other
than the certificate of authentication on the Certificates) or
of any Receivable or related document. Trustee shall not be
accountable for the use or application by Transferor of any of
the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to Transferor in
respect of the Receivables or deposited in or withdrawn from
the Collection Account, the Excess Funding Account, or the
Finance Charge Account, or any Series Account by Servicer.
SECTION 11.4 Trustee May Not Own Certificates. Trustee
in its individual capacity shall not, but in a fiduciary or
any other capacity may, become the owner of Investor
Certificates. In connection with such ownership in other than
its individual capacity, Trustee shall have the same rights as
it would have if it were not Trustee.
SECTION 11.5 Servicer to Pay Trustee's Fees and
Expenses. Servicer shall pay to Trustee from time to time, and
Trustee shall be entitled to receive, reasonable compensation
(which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust) for all
services rendered by it in the execution of the Trust hereby
created and in the exercise and performance of any of the
powers and duties hereunder of Trustee, and, subject to
Section 8.4, Servicer will pay or reimburse Trustee (without
reimbursement from any Investor Account, any Series Account or
otherwise) upon its request for all reasonable expenses,
disbursements and advances incurred or made by Trustee in
accordance with any of the provisions of this Agreement except
any such expense, disbursement or advance as may arise from
its own negligence or bad faith and except as provided in the
following sentence. If 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 Trustee in its capacity as Successor Servicer.
The obligations of Servicer under this Section 11.5 shall
survive the termination of the Trust and the resignation or
removal of Trustee.
SECTION 11.6 Eligibility Requirements for Trustee.
Trustee hereunder shall at all times be a corporation or
association 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 long-
term unsecured debt rating of at least Baa3 by Xxxxx'x and
BBB- by Standard & Poor's and, if rated by Fitch, at least
BBB- by Fitch, having, in the case of an entity that is
subject to risk-based capital adequacy requirements, risk-
based capital of at least $50,000,000 or, in the case of an
entity that is not subject to risk-based capital adequacy
requirements, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by
Federal or state authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section 11.6, the
combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. In case at
any time Trustee shall cease to be eligible in accordance with
the provisions of this Section 11.6, 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)
Trustee may at any time resign and be discharged from the
Trust hereby created by giving written notice thereof to
Servicer. Upon receiving such notice of resignation, Servicer
shall promptly appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so
appointed and have accepted within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a
successor trustee.
(b) If at any time Trustee shall cease to be eligible in
accordance with the provisions of Section 11.6 hereof and
shall fail to resign after written request therefor by
Transferor, or if at any time Trustee shall be legally unable
to act, or shall be adjudged a bankrupt or insolvent, or a
receiver of Trustee or of its property shall be appointed, or
any public officer shall take charge or control of Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then Transferor may, but shall
not be required to, remove Trustee and promptly appoint a
successor trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to Trustee so
removed and one copy to the successor trustee.
(c) Any resignation or removal of 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 hereof and any liability of 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 hereof shall
execute, acknowledge and deliver to 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, with the like effect
as if originally named as Trustee herein. The predecessor
Trustee shall deliver to the successor trustee all documents
and statements held by it hereunder, and 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.
(c) Upon acceptance of appointment by a successor trustee
as provided in this Section 11.8, such successor trustee shall
mail notice of such succession hereunder to all Holders at
their addresses as shown in the Certificate Register.
SECTION 11.9 Merger or Consolidation of Trustee. Any
Person into which 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 Trustee shall be
a party, or any Person succeeding to the corporate trust
business of Trustee, shall be the successor of Trustee
hereunder, provided such Person shall be eligible under
Section 11.6, without the execution or filing of any paper or
any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 11.10 Appointment of Co-Trustee or Separate
Trustee. (a) Notwithstanding any other provisions of this
Agreement, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the
Trust may at the time be located, Trustee shall have the power
and may execute and deliver all instruments to appoint one or
more Persons to act as a co-trustee or co-trustees, or
separate trustee or separate trustees, of all or any part of
the Trust, and to vest in such Person or Persons, in such
capacity and for the benefit of the Holders, 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 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
Holders of the appointment of any co-trustee or separate
trustee shall be required under Section 11.8 hereof.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon Trustee shall be conferred or
imposed upon and exercised or performed by 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 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 Servicer hereunder), 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 Trustee;
(ii) no trustee hereunder shall be personally liable
by reason of any act or omission of any other trustee
hereunder; and
(iii) 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 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 Trustee or
separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of,
affecting the liability of, or affording protection to,
Trustee. Every such instrument shall be filed with Trustee and
a copy thereof given to Servicer.
(d) Any separate trustee or co-trustee may at any time
constitute Trustee as its agent or attorney-in-fact with full
power and authority, to the extent not prohibited by law, to
do any lawful act under or in respect to this Agreement on its
behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed,
all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by Trustee, to the extent
permitted by law, without the appointment of a new or
successor trustee.
SECTION 11.11 Tax Returns. If the Trust shall be
required to file tax returns, Servicer shall prepare or cause
to be prepared any tax returns required to be filed by the
Trust and shall remit such returns to Trustee for signature
and, to the extent possible, file such returns at least five
days before such returns are due to be filed. Trustee is
hereby authorized to sign any such return on behalf of the
Trust. Servicer shall prepare or shall cause to be prepared
all tax information required by law to be distributed to
Holders and shall deliver such information to Trustee at least
five days prior to the date it is required by law to be
distributed to Holders. Trustee, upon request, shall furnish
Servicer with all such information known to Trustee as may be
reasonably required in connection with the preparation of all
tax returns of the Trust, and shall cause such tax returns to
be signed in the manner required by law. In no event shall
Trustee or Servicer be liable for any liabilities, costs or
expenses of the Trust, the Investor Holders or the Certificate
Owners arising under any tax law, including 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).
SECTION 11.12 Trustee May Enforce Claims Without
Possession of Certificates. All rights of action and claims
under this Agreement or any Series of Certificates may be
prosecuted and enforced by Trustee without the possession of
any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by 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 Trustee, its agents and counsel,
be for the ratable benefit of any Series of Holders in respect
of which such judgment has been obtained.
SECTION 11.13 Suits for Enforcement. If a Servicer
Default shall occur and be continuing, Trustee, in its
discretion may, subject to the provisions of Section 10.1,
proceed to protect and enforce its rights and the rights of
any Series of Holders under this Agreement by a suit, action
or proceeding in equity or at law or otherwise, whether for
the specific performance of any covenant or agreement
contained in this Agreement or in aid of the execution of any
power granted in this Agreement or for the enforcement of any
other legal, equitable or other remedy as Trustee, being
advised by counsel, shall deem most effectual to protect and
enforce any of the rights of Trustee or any Series of Holders.
SECTION 11.14 Rights of Holders to Direct Trustee.
Holders of Investor Certificates evidencing Undivided
Interests aggregating more than 50% of the Aggregate Investor
Interest (or, with respect to any remedy, trust, or power that
does not relate to all Series, 50% of the Aggregate Investor
Interest of the Investor Certificates of all Series to which
such remedy, trust, or power relates) shall have the right to
direct the time, method, and place of conducting any
proceeding for any remedy available to Trustee, or exercising
any trust or power conferred on Trustee; provided that (a)
subject to Section 11.1, Trustee shall have the right to
decline to follow any such direction if Trustee being advised
by counsel determines that the action so directed may not
lawfully be taken, or if Trustee in good faith shall, by a
Responsible Officer or Responsible Officers of Trustee,
determine that the proceedings so directed would be illegal or
involve it in personal liability or be unduly prejudicial to
the rights of Holders not parties to such direction and (b)
nothing in this Agreement shall impair the right of Trustee to
take any action deemed proper by Trustee and which is not
inconsistent with such direction of such Holders of Investor
Certificates.
SECTION 11.15 Representations and Warranties of Trustee.
Trustee represents and warrants that:
(i) Trustee is a [[_________] corporation]
organized, existing and authorized to engage in the
business of banking under the laws of [the State of
________________];
(ii) Trustee has full power, authority and right to
execute, deliver and perform this Agreement, and has
taken all necessary action to authorize the execution,
delivery and performance by it of this Agreement; and
(iii) this Agreement has been duly executed and
delivered by Trustee.
SECTION 11.16 Maintenance of Office or Agency. 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 Trustee in respect of the
Certificates and this Agreement may be served. Trustee
initially appoints the Corporate Trust Office as its office
for such purposes in New York. Trustee will give prompt
written notice to Servicer and to Holders in accordance with
Section 13.5 (or in the case of Holders of Bearer
Certificates, in the manner provided for in the related
Supplement) of any change in the location of the Certificate
Register or any such office or agency.
ARTICLE XII TERMINATION
SECTION 12.1 Termination of Trust. (a) The respective
obligations and responsibilities of Transferor, Servicer and
Trustee created hereby (other than the obligation of Trustee
to make payments to Holders as hereafter set forth) shall
terminate, except with respect to the duties described in
Section 11.5 and subsections 2.4(c) and 12.3(b), on the Trust
Termination Date; provided that the Trust shall not terminate
on the date specified in clause (a) of the definition of
"Trust Termination Date" if each of Servicer and the Holder of
the Transferor Certificate notify Trustee in writing, not
later than five Business Days preceding such date, that they
desire that the Trust not terminate on such date, which notice
(such notice, a "Trust Extension") shall specify the date on
which the Trust shall terminate (such date, the "Extended
Trust Termination Date"); provided that the Extended Trust
Termination Date shall in any event not be later than the day
specified in clause (c) of the definition of "Trust
Termination Date." Servicer and the Holder of the Transferor
Certificate may, on any date following the Trust Extension, so
long as no Series of Certificates is outstanding, deliver a
notice in writing to Trustee changing the Extended Trust
Termination Date.
(b) All principal or interest with respect to any Series
of Investor Certificates shall be due and payable no later
than the Series Termination Date with respect to such Series.
Unless otherwise provided in a Supplement, in the event that
the Investor Interest of any Series of Certificates is greater
than zero on its 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), Trustee will sell or cause to be sold,
and pay the proceeds first, to all Holders of such Series pro
rata in final payment of all principal of and accrued interest
on such Series of Certificates, and second, as provided in the
related Supplement, an amount of Principal Receivables and the
related Finance Charge Receivables (or interests therein) up
to 110% of the Investor Interest of such Series at the close
of business on such date (but in no event in excess of the
applicable Investor Percentages of Principal Receivables and
Finance Charge Receivables on such date). Trustee shall notify
each Credit Enhancement Provider of the proposed sale of such
Receivables and shall provide each Credit Enhancement Provider
an opportunity to bid on such Receivables. Transferor shall be
permitted to purchase such Receivables in such case and shall
have a right of first refusal with respect thereto. Any
proceeds of such sale in excess of such principal and interest
paid shall be paid to the Holder of the Transferor
Certificate. Upon such 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 12.2 Optional Purchase. (a) If so provided in
any Supplement, Transferor may, but shall not be obligated to,
cause a final distribution to be made in respect of the
related Series of Certificates on a Distribution Date
specified in such Supplement by depositing into the
Distribution Account or the applicable Series Account, not
later than the Transfer Date preceding such Distribution Date,
for application in accordance with Section 12.3, the amount
specified in such Supplement; provided that if the short term
deposits or long-term unsecured debt obligations of Transferor
are not rated at the time of such purchase of Certificates at
least P-3 or Baa-3, respectively, by Xxxxx'x, no such event
shall occur unless Transferor shall deliver an Opinion of
Counsel reasonably acceptable to Trustee that such deposit
into the Distribution Account as provided in the related
Supplement would not constitute a fraudulent conveyance of
Transferor.
(b) The amount deposited pursuant to subsection 12.2(a)
shall be paid to the Investor Holders of the related Series
pursuant to Section 12.3 on the related Distribution Date
following the date of such deposit. All Certificates of a
Series which are purchased by Transferor pursuant to
subsection 12.2(a) shall be delivered by Transferor upon such
purchase to, and be canceled by, the Transfer Agent and
Registrar and be disposed of in a manner satisfactory to
Trustee and Transferor. The Investor Interest of each Series
which is purchased by Transferor pursuant to subsection
12.2(a) shall, for the purposes of the definition of
"Transferor Interest," be deemed to be equal to zero on the
Distribution Date following the making of the deposit, and the
Transferor Interest shall thereupon be deemed to have been
increased by the Investor Interest of such Series.
SECTION 12.3 Final Payment with Respect to any Series.
(a) Written notice of any termination, specifying the
Distribution Date upon which the Investor Holders 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 Business
Days' prior notice from Servicer to Trustee) by Trustee to
Investor Holders of such Series mailed not later than the
fifth day of the month of such final distribution (or in the
manner provided by the Supplement relating to such Series)
specifying (i) the Distribution Date (which shall be the
Distribution Date in the month (x) in which the deposit is
made pursuant to subsection 2.4(e), 9.2(b), or 12.2(a) of this
Agreement or such other section as may be specified in the
related Supplement, or (y) in which the related Series
Termination Date occurs) 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), (ii) the
amount of any such final payment, and (iii) 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. Servicer's notice to Trustee in
accordance with the preceding sentence shall be accompanied by
an Officers' Certificate setting forth the information
specified in Article V of this Agreement covering the period
during the then current calendar year through the date of such
notice and setting forth the date of such final distribution.
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 Holders.
(b) Notwithstanding the termination of the Trust pursuant
to subsection 12.1(a) or the occurrence of the Series
Termination Date with respect to any Series, all funds then on
deposit in the Finance Charge Account, the Excess Funding
Account, the Distribution Account or any Series Account
applicable to the related Series shall continue to be held in
trust for the benefit of the Holders of the related Series and
the Paying Agent or Trustee shall pay such funds to the
Holders of the related Series upon surrender of their
Certificates (which surrenders and payments, in the case of
Bearer Certificates, shall be made only outside the United
States). In the event that all of the Investor Holders of any
Series shall not surrender their Certificates for cancellation
within six months after the date specified in the above-
mentioned written notice to Investor Holders, Trustee shall
give a second written notice (or, in the case of Bearer
Certificates, publication notice) to the remaining Investor
Holders 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 with respect to a Series, all
the Investor Certificates of such Series shall not have been
surrendered for cancellation, Trustee may take appropriate
steps or may appoint an agent to take appropriate steps, to
contact the remaining Investor Holders of such Series
concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds in the Distribution
Account or any Series Account held for the benefit of such
Investor Holders. Trustee and the Paying Agent shall pay to
Transferor upon request any monies held by them for the
payment of principal or interest which remains unclaimed for
two years. After payment to Transferor, Investor Holders
entitled to the money must look to Transferor for payment as
general creditors unless an applicable abandoned property law
designates another Person.
(c) All Certificates surrendered for payment of the final
distribution with respect to such Certificates and
cancellation shall be canceled by the Transfer Agent and
Registrar and be disposed of in a manner satisfactory to
Trustee and Transferor.
SECTION 12.4 Termination Rights of Holder of Transferor
Certificate. Upon the termination of the Trust pursuant to
Section 12.1, and after payment of all amounts due hereunder
on or prior to such termination and surrender of the
Transferor Certificate, Trustee shall execute a written
reconveyance substantially in the form of Exhibit H pursuant
to which it shall reconvey to the Holder of the Transferor
Certificate (without recourse, representation or warranty) all
right, title and interest of the Trust in the Receivables,
whether then existing or thereafter created, all moneys due or
to become due with respect to such Receivables (including all
accrued interest theretofore posted as Finance Charge
Receivables and Recoveries) and all proceeds of such
Receivables and Insurance Proceeds relating to such
Receivables and Interchange (if any) allocable to the Trust
pursuant to any Supplement, and all proceeds thereof, except
for amounts held by Trustee pursuant to subsection 12.3(b).
Trustee shall execute and deliver such instruments of transfer
and assignment, in each case without recourse, as shall be
reasonably requested by the Holder of the Transferor
Certificate to vest in such Holder all right, title and
interest which the Trust had in the Receivables.
SECTION 12.5 Defeasance. Notwithstanding anything to
the contrary in this Agreement:
(a) Transferor may at its option be discharged from its
obligations hereunder with respect to any Series or all
outstanding Series (in any such case, 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 Holders of Investor Certificates of the Defeased
Series to receive, solely from the trust fund provided for in
subsection 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 Credit Enhancement Provider to the
repayment of any amount due to it under the applicable Credit
Enhancement and Supplement, including interest thereon; (iii)
Transferor's obligations with respect to such Certificates
under Sections 6.3 and 6.4; (iv) the rights, powers, trusts,
duties and immunities of Trustee, the Paying Agent and the
Transfer Agent and Registrar hereunder; and (v) this Section
12.5.
(b) Subject to subsection 12.5(c),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 subsection 12.5(a): (i) Transferor irrevocably shall
have deposited or caused to be deposited with Trustee (such
deposit to be made other than from Transferor's funds), under
the terms of an irrevocable trust agreement in form and
substance satisfactory to Trustee, as trust funds in trust for
making the payments described below, (A) 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
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 Credit Enhancement Providers, if
any, with respect to the Defeased Series; and (ii) prior to
any exercise of its right pursuant to this Section 12.5 with
respect to a Defeased Series to substitute money or Permitted
Investments for Receivables, (x) Transferor shall have
delivered to Trustee a Tax Opinion with respect to such
deposit and termination of obligations 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
Investment Company Act and (y) Transferor shall have delivered
to Trustee and each Credit Enhancement Provider an Officer's
Certificate stating that 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 or thereafter cause a Pay Out Event with
respect to any Series.
ARTICLE XIII MISCELLANEOUS PROVISIONS
SECTION 13.1 Amendment. (a) This Agreement or any
Supplement may be amended in writing from time to time by
Servicer, Transferor and Trustee, without the consent of any
of Holders; provided that such action shall not, in the
reasonable belief of Transferor, as evidenced by an Officer's
Certificate from Transferor addressed and delivered to
Trustee, adversely affect in any material respect the
interests of any Investor Holders; provided, further, that
each Rating Agency shall have notified Transferor, Servicer
and Trustee in writing that such action will not result in a
reduction or withdrawal of the rating of any outstanding
Series or Class to which it is a Rating Agency. This
Agreement or any Supplement may be amended in writing by
Servicer, Transferor and Trustee, without the consent of any
of the Holders to (i) provide for additional Credit
Enhancement or substitute Credit Enhancement with respect to
a Series (so long as the amount of such substitute Credit
Enhancement, unless otherwise provided in any related
Supplement, is equal to the original Credit Enhancement for
such Series), (ii) add one or more Participations to the
Trust, (iii) to effect the designation of any additional
Transferor or to provide for the addition to the Trust of
Participations, (iv) cure any ambiguity or correct or
supplement any provision contained in the Agreement or Series
Supplement which may be defective or inconsistent with any
other provisions thereof, (v) enable all or a portion of the
Trust to qualify as, and to permit an election to be made to
cause the Trust to be treated as, a "financial asset
securitization investment trust," as described in the
provisions of the "Seven Year Balanced Budget Act of 1995,"
H.R. 2491, 104th Cong., 1st Sess. (1995), or to enable the
Trust to qualify and an election to be made for similar
treatment under such comparable subsequent Federal income tax
provisions as may ultimately be enacted into law (and, in
connection with any such election, to modify or eliminate
existing provisions relating to the intended Federal income
tax treatment of the Certificates and the Trust), (vi) enable
the Trust to qualify as a partnership for purposes of any
state tax laws (including by amending Section 9.2 to read in
its entirety substantially as set forth on Exhibit I), and
(vii) enable Receivables transferred to the Trust to be
derecognized by Transferor (or applicable additional
Transferor) under applicable accounting principles and the
Trust to not be treated as a member of Transferor's (or such
related additional Transferor's) consolidated group under
applicable accounting principles.
(b) This Agreement or any Supplement may also be amended
in writing from time to time by Servicer, Transferor and
Trustee with the consent of the Holders of Investor
Certificates evidencing Undivided Interests aggregating not
less than 66-2/3% of the Investor Interest of each outstanding
Series or Class adversely affected by such amendment for the
purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or any
Supplement or modifying in any manner the rights of Investor
Holders of any Series or Class then issued and outstanding;
provided 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 Certificates of such
Series without the consent of each Investor Holder of such
Series, (ii) change the definition of or the manner of
calculating the Investor Interest or the Investor Percentage
of such Series without the consent of each Investor Holder of
such Series, or (iii) reduce the aforesaid percentage required
to consent to any such amendment, without the consent of each
Investor Holder of all Series adversely affected. Trustee may,
but shall not be obligated to, enter into any such amendment
which affects Trustee's rights, duties or immunities under
this Agreement or otherwise.
(c) Notwithstanding anything in this Section 13.1 to the
contrary, the Supplement with respect to any Series may be
amended on the items and in accordance with the procedures
provided in such Supplement.
(d) Promptly after the execution of any such amendment
(other than an amendment pursuant to subsection (a)), Trustee
shall furnish notification of the substance of such amendment
to each Investor Holder of each Series adversely affected and
to each Rating Agency providing a rating for such Series.
(e) It shall not be necessary for the consent of Investor
Holders under this Section 13.1 to approve the particular form
of any proposed amendment, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of
the execution thereof by Investor Holders shall be subject to
such reasonable requirements as Trustee may prescribe.
(f) Any Supplement executed and delivered pursuant to
Section 6.9 and any amendments regarding the addition to or
removal of Receivables from the Trust as provided in Section
2.6 or 2.7, executed in accordance with the provisions hereof,
shall not be considered amendments to this Agreement for the
purpose of subsections 13.1(a) and (b).
(g) In connection with any amendment, Trustee may request
an Opinion of Counsel from Transferor or Servicer to the
effect that the amendment complies with all requirements of
this Agreement.
SECTION 13.2 Protection of Right, Title and Interest to
Trust. (a) Servicer shall cause this Agreement, all amendments
hereto and/or all financing statements and continuation
statements and any other necessary documents covering the
Holders' and Trustee's right, title and interest to the Trust
to be promptly recorded, registered, and filed, and at all
times to be kept recorded, registered, and filed, all in such
manner and in such places as may be required by law fully to
preserve and protect the right, title and, interest of the
Holders or Trustee, as the case may be, hereunder to all
property comprising the Trust. Servicer shall deliver to
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. Transferor shall cooperate fully with Servicer in
connection with the obligations set forth above and will
execute any and all documents reasonably required to fulfill
the intent of this subsection 13.2(a).
(b) Within 30 days after Transferor makes any change in
its name, identity or corporate structure which would make any
financing statement or continuation statement filed in
accordance with subsection (a) seriously misleading within the
meaning of Section 9-402(7) of the UCC as in effect in the
State of Louisiana, Transferor shall give Trustee notice of
any such change and shall file such financing statements or
amendments as may be necessary to continue the perfection of
the Trust's security interest in the Receivables and the
proceeds thereof.
(c) Each of Transferor and Servicer will give Trustee
prompt written notice of any relocation of any office from
which it services Receivables or keeps records concerning the
Receivables or of its principal executive office and whether,
as a result of such relocation, the applicable provisions of
the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any
new financing statement and shall file such financing
statements or amendments as may be necessary to continue the
perfection of the Trust's security interest in the Receivables
and the proceeds thereof. Each of Transferor and Servicer will
at all times maintain each office from which it services
Receivables and its principal executive office within the
United States of America.
(d) The Servicer will deliver to Trustee: (i) upon each
date that any Additional Accounts are to be included in the
Accounts pursuant to subsection 2.6(a) or (b), an Opinion of
Counsel substantially in the form of Exhibit E; and (ii) on or
before March 31 of each year, beginning with March 31, 1998,
an Opinion of Counsel, substantially in the form of Exhibit F.
(e) Upon not less than 5 Business Days' written notice
from Transferor to Trustee and Servicer that Transferor wishes
to dispose of any receivables arising from any of its VISA,
MasterCard, Private Label or other revolving credit accounts
which are not Accounts but which are included in the Bank
Portfolio, Trustee shall execute and deliver such instruments
of release, in each case without recourse, representation or
warranty, as shall be prepared by and as are reasonably
requested by Transferor to release of record any purported
right, title or interest of the Trust in and to such
receivables, all monies due or to become due with respect to
such receivables and all proceeds of such receivables;
provided that Transferor shall deliver to Trustee and Servicer
a certificate dated the date of such release, certifying that
no property described in such release constitutes Trust
Assets.
SECTION 13.3 Limitation on Rights of Holders. (a) The
death or incapacity of any Holder shall not operate to
terminate this Agreement or the Trust, nor shall such death or
incapacity entitle such Holder'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 Holder shall have any right to vote (except with
respect to the Investor Holders as provided in Section 13.1
hereof) or in any manner otherwise control the operation and
management of the Trust, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in
the terms of the Certificates, be construed so as to
constitute the Holders from time to time as partners or
members of an association; nor shall any Holder 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 Holder 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 Holder previously shall have
given written notice to Trustee, and unless the Holders of
Certificates evidencing Undivided Interests aggregating more
than 50% of the Investor Interest of any Series which may be
adversely affected but for the institution of such suit,
action or proceeding, shall have made written request upon
Trustee to institute such action, suit or proceeding in its
own name as Trustee hereunder and shall have offered to
Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or
thereby, and 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 Holder with every other Holder and Trustee,
that no one or more Holders 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 Holders of any other of the Certificates, or
to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this
Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders. For the
protection and enforcement of the provisions of this Section
13.3, each and every Holder and Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF 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 personally delivered at,
sent by facsimile or courier or mailed by registered mail,
return receipt requested, to (a) in the case of Transferor and
Servicer, First National Bank of Commerce, 000 Xxxxx Xxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000, Attention:
Xxxxxxx X. Xxxxx, Secretary, (b) in the case of Trustee, the
Corporate Trust Office, (c) in the case of the Credit
Enhancement Provider for a particular Series, the address or
facsimile number, if any, specified in the Supplement relating
to such Series, and (d) in the case of the Rating Agency for
a particular Series, the address or facsimile number, if any,
specified in the Supplement relating to such Series; or, as to
each party, such other address or facsimile number as shall be
designated by such party in a written notice to each other
party. Unless otherwise provided with respect to any Series in
the related Supplement any notice required or permitted to be
mailed to a Holder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the
Certificate Register, or with respect to any notice required
or permitted to be made to the Holders of Bearer Certificates,
by publication in the manner provided in the related
Supplement. If and so long as any Series or Class is listed on
the Luxembourg Stock Exchange and such Exchange shall so
require, any notice to Investor Holders shall be published in
an authorized newspaper of general circulation in Luxembourg
within the time period prescribed in this Agreement. Any
notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice.
SECTION 13.6 Severability of Provisions. If any one or
more of the covenants, agreements, provisions or terms of this
Agreement shall for any reason whatsoever be held invalid,
then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements,
provisions or 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
Holders thereof.
SECTION 13.7 Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Section 8.2,
this Agreement may not be assigned by Servicer without the
prior consent of Holders of Investor Certificates evidencing
Undivided Interests aggregating not less than 66-2/3% of the
Investor Interest of each Series on a Series-by-Series basis.
SECTION 13.8 Certificates Non-Assessable and Fully Paid.
It is the intention of the parties to this Agreement that the
Holders shall not be personally liable for obligations of the
Trust, that the Undivided Interests represented by the
Certificates shall be non-assessable for any losses or
expenses of the Trust or for any reason whatsoever, and that
Certificates upon authentication thereof by Trustee pursuant
to Sections 2.1 and 6.2 are and shall be deemed fully paid.
SECTION 13.9 Further Assurances. Transferor and 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 Trustee more fully to effect the
purposes of this Agreement, including the execution of any
financing statements or continuation statements relating to
the Receivables for filing under the provisions of the UCC of
any applicable jurisdiction.
SECTION 13.10 No Waiver; Cumulative Remedies. No failure
to exercise and no delay in exercising, on the part of
Trustee, any Credit Enhancement Provider or the Investor
Holders, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided
are cumulative and not exhaustive of any rights, remedies,
powers and privileges provided by law.
SECTION 13.11 Counterparts. This Agreement may be
executed in two or more counterparts (and by different parties
on separate counterparts), each of which shall be an original,
but all of which together shall constitute one and the same
instrument.
SECTION 13.12 Third-Party Beneficiaries. This Agreement
will inure to the benefit of and be binding upon the parties
hereto, the Holders and, to the extent provided in the related
Supplement, to the Credit Enhancement Provider named therein,
and their respective successors and permitted assigns. Except
as otherwise provided in this Article XIII, no other Person
will have any right or obligation hereunder.
SECTION 13.13 Actions by Holders. (a) Wherever in this
Agreement a provision is made that an action may be taken or
a notice, demand or instruction given by Investor Holders,
such action, notice or instruction may be taken or given by
any Investor Holder, unless such provision requires a specific
percentage of Investor Holders.
(b) Any request, demand, authorization, direction,
notice, consent, waiver or other act by a Holder shall bind
such Holder 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 Trustee or Servicer in reliance
thereon, whether or not notation of such action is made upon
such Certificate.
SECTION 13.14 Rule 144A Information. For so long as any
of the Investor Certificates of any Series or any Class are
"restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act, each of Transferor, Servicer,
Trustee and the Credit Enhancement Provider for such Series
agree to cooperate with each other to provide to any Investor
Holders of such Series or Class and to any prospective
purchaser of Certificates designated by such an Investor
Holder upon the request of such Investor Holder or prospective
purchaser, any information required to be provided to such
holder or prospective purchaser to satisfy the condition set
forth in Rule 144A(d)(4) under the Securities Act.
SECTION 13.15 Merger and Integration. Except as
specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the
subject matter hereof, and all prior understandings, written
or oral, are superseded by this Agreement. This Agreement may
not be modified, amended, waived or supplemented except as
provided herein.
SECTION 13.16 Headings. The headings herein are for
purposes of reference only and shall not otherwise affect the
meaning or interpretation of any provision hereof.
IN WITNESS WHEREOF, Transferor, Servicer and Trustee
have caused this Agreement to be duly executed by their respective
officers as of the day and year first above written.
FIRST NATIONAL BANK OF COMMERCE,
Transferor and Servicer
By:____________________________________________
Name:
Title:
_____________________________________________
Trustee
By:__________________________________________
Name:
Title:
EXHIBIT A
FORM OF TRANSFEROR CERTIFICATE
------------------------------
Unless this Certificate is presented by an authorized
representative of First National Bank of Commerce, a national
banking association ("First NBC"), to ___________________________,
as trustee (the "Trustee") or its agent for exchange, and any
certificate issued is registered in the name of First NBC or in such
other name as requested by an authorized representative of First
NBC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL.
FIRST NBC CREDIT CARD MASTER TRUST
Transferor Certificate
Evidencing an Undivided Interest in a trust, the corpus of
which consists of a portfolio of revolving credit card
receivables, initially comprised of a portion MasterCard(R)
and VISA(R)** and Private Label credit card receivables
generated or acquired by First National Bank of Commerce and
other assets and interests constituting the Trust under the
Pooling and Servicing Agreement described below.
(Not an interest in or obligation of
First National Bank of Commerce
or any Affiliate thereof.)
-----------------------------
** MasterCard(R) and VISA(R) are federally registered
servicemarks of MasterCard International Inc. and of VISA
U.S.A., Inc., respectively.
This certifies that FIRST NATIONAL BANK OF COMMERCE (the
"Holder of the Transferor Certificate") is the registered owner
of an undivided interest in a trust (the "Trust"), the corpus
of which consists of a portfolio of receivables (the
"Receivables") now existing or hereafter created and arising
in connection with selected MasterCard, VISA and Private Label
credit card accounts (the "Accounts") of First National Bank
of Commerce, a national banking association organized under
the laws of the United States, all monies due or to become due
in payment of the Receivables (including all Finance Charge
Receivables and Recoveries), the right to certain amounts
received as Interchange with respect to the Accounts, the
rights to any Credit Enhancement and certain other assets and
interests constituting the Trust pursuant to a Pooling and
Servicing Agreement dated as of ______________ ___, 1997 (the
"Pooling and Servicing Agreement"), by and between First
National Bank of Commerce, as Transferor ("Transferor") and as
Servicer ("Servicer"), and _________________, a [[___________]
banking corporation], as Trustee ("Trustee") as the same may
be supplemented from time to time by a supplement (a
"Supplement"). Any Supplement may issue a Series of Investor
Certificates or a Supplemental Certificate. Each Series of
Investor Certificates will represent Undivided Interests in
the Trust, including the benefits of any Credit Enhancement
issued with respect to such Series. This Transferor
Certificate represents the remaining undivided interest in the
Trust, but does not represent any interest in Investor
Certificates, except as provided in the Pooling and Servicing
Agreement, or the benefits of any Credit Enhancement.
Transferor has structured the Pooling and Servicing
Agreement and the Investor Certificates with the intention
that the Investor Certificates will qualify under applicable
Federal, state, local and foreign tax law as indebtedness, and
each of Transferor, Servicer, the Holder of the Transferor
Certificate and each Holder of an Investor Certificate (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), agrees
to treat and to take no action inconsistent with the treatment
of the Investor Certificates (or any beneficial interest
therein) as indebtedness for purposes of Federal, state, local
and foreign income or franchise taxes and any other tax
imposed on or measured by income. Each Holder of an Investor
Certificate agrees that it will cause any Certificate Owner
acquiring an interest in an Investor Certificate through it to
comply with the Pooling and Servicing Agreement and any
applicable Supplement as to treatment of the Investor
Certificates as indebtedness for certain tax purposes.
To the extent not defined herein, capitalized terms used
herein have the respective meanings assigned to them in the
Pooling and Servicing Agreement. This Transferor 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,
the Holder of the Transferor Certificate by virtue of the
acceptance hereof assents and by which the Holder of the
Transferor Certificate is bound.
Except as provided in the Pooling and Servicing
Agreement, Transferor may not transfer this Transferor
Certificate or any interest herein.
This Transferor Certificate represents an interest in
only the First NBC Credit Card Master Trust. This Transferor
Certificate does not represent an obligation of, or an
interest in, Transferor or Servicer, and neither the
Certificates nor the Accounts or Receivables are insured or
guaranteed by the Federal Deposit Insurance Corporation or any
other governmental agency. This Transferor Certificate is
limited in right of payment to certain collections respecting
the Receivables, all as more specifically set forth
hereinabove and in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by or on behalf of Trustee, by manual signature, this
Transferor Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement, or be valid for any
purpose.
IN WITNESS WHEREOF, FIRST NATIONAL BANK OF COMMERCE
has caused this Transferor Certificate to be duly executed
under its official seal.
By:_______________________________
Authorized Officer
[Seal]
Attested to:
By:___________________
Secretary
Date: _________________
Form of Trustee's Certificate of Authentication
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is the Transferor Certificate referred to in
the within-mentioned Pooling and Servicing Agreement.
______________________________,
Trustee
By:___________________________
Authorized Signatory
EXHIBIT B
FORM OF ASSIGNMENT OF RECEIVABLES
---------------------------------
IN ADDITIONAL ACCOUNTS
----------------------
(As required by Section 2.6 of
the Pooling and Servicing Agreement)
ASSIGNMENT No. _______ OF RECEIVABLES IN ADDITIONAL
ACCOUNTS dated as of _____________, ___*** by and
between FIRST NATIONAL BANK OF COMMERCE, a national banking
association, as Transferor ("Transferor") and Servicer
("Servicer"), and __________________, [a [_________] banking
corporation], as Trustee ("Trustee"), pursuant to the Pooling
and Servicing Agreement referred to below.
WITNESSETH:
WHEREAS, Transferor, Servicer and Trustee are parties to
the Pooling and Servicing Agreement dated as of
________________ __, 1997 (as may be amended and supplemented
from time to time, the "Agreement");
WHEREAS, pursuant to the Agreement, 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 such terms are defined in the
Agreement); and
WHEREAS, Trustee is willing to accept such designation
and conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, Transferor, Servicer and Trustee hereby
agree as follows:
1. Defined Terms. All capitalized terms used herein shall
have the meanings ascribed to them in the Agreement unless
otherwise defined herein.
-----------------------------
*** To be dated as of the applicable Addition Date.
"Addition Date" means, with respect to the Additional
Accounts designated hereby, ________, ____.
"Addition Cut Off Date" means, with respect to the
Additional Accounts designated hereby, ________, ____.
2. Designation of Additional Accounts. Within ten
Business Days after the Addition Date, Transferor will deliver
to Trustee an Account Schedule identifying all such Additional
Accounts and specifying for each such Account, as of the
Addition Cut Off Date, its account number, the aggregate
amount outstanding in such Account and the aggregate amount of
Principal Receivables outstanding in such Account, which
Account Schedule shall be immediately incorporated into and
made a part of this Assignment and the Agreement.
3. Conveyance of Receivables. Transferor does hereby
transfer, assign, set over and otherwise convey to Trustee, on
behalf of the Trust, for the benefit of the Holders, without
recourse, all its right, title and interest in, to and under
the Receivables of such Additional Accounts existing at the
close of business on the Addition Date and thereafter created
and arising in connection with the Additional Accounts, all
monies due or to become due with respect to such Receivables
(including all Finance Charge Receivables and Recoveries), all
proceeds of such Receivables and Insurance Proceeds relating
to such Receivables, and all proceeds thereof. The foregoing
does not constitute and is not intended to result in the
creation or assumption by the Trust, Trustee, any Investor
Holder or any Credit Enhancement Provider of any obligation of
Servicer, Transferor or any other Person in connection with
the Accounts, the Receivables or under any agreement or
instrument relating thereto, including any obligation to
Obligors, merchant banks, merchants clearance systems or
insurers.
Transferor agrees to record and file, at its own expense,
financing statements (and continuation statements when
applicable) with respect to the Receivables in the Additional
Accounts, meeting the requirements of applicable state law in
such manner and in such jurisdictions as are necessary to per-
fect, and maintain perfection of, the assignment of such
Receivables to the Trust, and to deliver a file-stamped copy
of each such financing statement or other evidence of such
filing to Trustee on or prior to the Addition Date. The
foregoing transfer, assignment, set-over and conveyance to the
Trust shall be made to Trustee, on behalf of the Trust, and
each reference in this Assignment to such transfer,
assignment, set-over and conveyance shall be construed
accordingly. Trustee shall be under no obligation whatsoever
to file such financing or continuation statements or to make
any other filing under the UCC in connection with such
assignment.
In connection with such assignment, Transferor has
indicated in its computer files that Receivables created in
connection with the Additional Accounts and designated hereby
have been transferred to Trustee, on behalf of the Trust, for
the benefit of the Holders.
The parties intend that if, and to the extent that, such
assignment is not deemed to be a sale, Transferor shall be
deemed hereunder to have granted to Trustee, on behalf of the
Trust, for the benefit of the Investor Holders, a first
priority perfected security interest in all of Transferor's
right, title and interest in, to and under the Receivables now
existing and hereafter created and arising in connection with
the Additional Accounts, all monies due or to become due with
respect to such Receivables (including all Finance Charge
Receivables and Recoveries) and all proceeds thereof, that
this Assignment shall constitute such a security agreement
under applicable law, and that the Transferor Interest shall
be deemed to represent Transferor's equity in the collateral
granted.
4. Acceptance by Trustee. Trustee hereby acknowledges its
acceptance on behalf of the Trust for the benefit of the
Holders of all right, title and interest to the property, now
existing and hereafter created, conveyed to the Trust pursuant
to Section 3 of this Assignment, and declares that it shall
maintain such right, title and interest, upon the trust set
forth in the Agreement for the benefit of all Holders. Trustee
further acknowledges that, within five Business Days after the
execution and delivery of this Assignment, Transferor will
deliver to Trustee the Account Schedule or printed list
described in Section 2 of this Assignment.
5. Representations and Warranties of Transferor.
Transferor hereby represents and warrants to Trustee, on
behalf of the Trust, as of the date of this Assignment and as
of the Addition Date that:
(a) Legal, Valid and Binding Obligation. This
Assignment constitutes a legal, valid and binding
obligation of Transferor enforceable against Transferor
in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement
of creditors' rights in general and except as such
enforceability may be limited by general principles of
equity (whether considered in a suit at law or in
equity);
(b) Eligibility of Accounts and Receivables. Each
Additional Account designated hereby is an Eligible
Account, and each Receivable in such Additional Account
is an Eligible Receivable;
(c) Selection Procedures. No selection procedures
believed by Transferor to be materially adverse to the
interests of the Investor Holders were utilized in
selecting the Additional Accounts from the Bank
Portfolio;
(d) Insolvency. As of the Addition Date, Transferor
is not insolvent.
(e) Pay Out Event. Transferor reasonably believes
that the transfer of the Receivables arising in the
Additional Accounts will not cause a Pay Out Event to
occur with respect to any Series;
(f) Security Interest. This Assignment constitutes
either (x) a valid transfer and assignment to Trustee, on
behalf of the Trust, of all right, title and interest of
Transferor in and to the Receivables existing at the
close of business on the Addition Date and thereafter
created in the Additional Accounts, and all monies due or
to become due with respect to such Receivables (including
all Finance Charge Receivables and Recoveries), all
proceeds of such Receivables and Insurance Proceeds
relating to such Receivables and all proceeds thereof,
all of which will be held by Trustee on behalf of the
Trust, free and clear of any Lien of any Person claiming
through or under Transferor or any of its Affiliates,
except for (i) Liens permitted under subsection 2.5(b),
(ii) the interest of Transferor as Holder of the
Transferor Certificate and (iii) Transferor's right to
receive interest accruing on, and investment earnings in
respect of, the Finance Charge Account and the Excess
Funding Account and any Series Account as provided in the
Agreement and any related Supplement or (y) a grant of a
security interest in such property to Trustee, for the
benefit of the Investor Holders, which is enforceable
with respect to then existing Receivables in the
Additional Accounts, the proceeds thereof and Insurance
Proceeds and Recoveries relating thereto upon the
conveyance of such Receivables to the Trust, and which
will be enforceable with respect to the Receivables
thereafter created in respect of Additional Accounts
conveyed on the Addition Date, the proceeds thereof and
Insurance Proceeds and Recoveries relating thereto upon
such creation; and (z) if the Assignment constitutes the
grant of a security interest to Trustee in such property,
upon the filing of a financing statement as described in
Section 2.1 of the Agreement with respect to the
Additional Accounts and in the case of the Receivables
thereafter created in the Additional Accounts and the
proceeds thereof, and Insurance Proceeds and Recoveries
relating thereto, upon such creation, Trustee shall have
a first priority perfected security interest in such
property (subject to Section 9-306 of the UCC as in
effect in the State of Louisiana), except for Liens
permitted under subsection 2.5(b) of the Agreement;
(g) No Conflict. The execution and delivery by
Transferor of this Assignment, the performance of the
transactions contemplated by this Assignment and the ful-
fillment of the terms hereof applicable to Transferor,
will not conflict with or violate any Requirements of Law
applicable to Transferor or conflict with, result in any
breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or
both) a material default under, any indenture, contract,
agreement, mortgage, deed of trust or other instrument to
which Transferor is a party or by which it or its
properties are bound;
(h) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of
Transferor, threatened against Transferor before any
court, regulatory body, administrative agency or other
tribunal or governmental instrumentality (i) asserting
the invalidity of this Assignment, (ii) seeking to
prevent the consummation of any of the transactions
contemplated by this Assignment, (iii) seeking any
determination or ruling that, in the reasonable judgment
of Transferor, would materially and adversely affect the
performance by Transferor of its obligations under this
Assignment, (iv) seeking any determination or ruling that
would materially and adversely affect the validity or
enforceability of this Assignment or (v) seeking to
affect adversely the income tax attributes of the Trust
under the Federal, or applicable state income or
franchise tax systems; and
(i) All Consents. All authorizations, consents,
orders or approvals or other actions of any Person or of
any court or other governmental authority required to be
obtained by Transferor in connection with the execution
and delivery of this Assignment by Transferor and the
performance of the transactions contemplated by this
Assignment by Transferor, have been obtained.
6. Ratification of Agreement. As supplemented by this
Assignment, the Agreement is in all respects ratified and con-
firmed and the Agreement as so supplemented by this Assignment
shall be read, taken and construed as one and the same instru-
ment.
7. Counterparts. This Assignment may be executed in two
or more counterparts, and by different parties on separate
counterparts, each of which shall be an original, but all of
which shall constitute one and the same instrument.
8. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, Transferor, Servicer and Trustee have
caused this Assignment to be duly executed by their respective
officers as of the day and year first above written.
FIRST NATIONAL BANK OF COMMERCE,
Transferor and Servicer
By:____________________________________
Name:
Title:
_______________________________________,
Trustee
By:____________________________________
Name:
Title:
EXHIBIT C
FORM OF MONTHLY SERVICER'S CERTIFICATE
--------------------------------------
FIRST NATIONAL BANK OF COMMERCE
__________________________
First NBC Credit Card Master Trust, Series ______
__________________________
For the _____________ Determination Date
For the ___________ Monthly Period
The undersigned, a duly authorized representative of
First National Bank of Commerce, as Servicer pursuant to the
Pooling and Servicing Agreement dated as of ____________ __,
1997 (the "Pooling and Servicing Agreement") by and between
First National Bank of Commerce and _______________________,
as Trustee, does hereby certify as follows:
1. Capitalized terms used in this Certificate have
their respective meanings set forth in the Pooling and
Servicing Agreement; provided, that the "preceding
Monthly Period" shall mean the Monthly Period immediately
preceding the calendar month in which this Certificate is
delivered. This Certificate is delivered pursuant to
subsection 3.4(b) of the Pooling and Servicing Agreement.
References herein to certain sections and subsections are
references to the respective sections and subsections of
the Pooling and Servicing Agreement, as amended by the
applicable Series Supplement.
2. First National Bank of Commerce is Servicer
under the Pooling and Servicing Agreement.
3. The undersigned is a Servicing Officer.
4. The date of this Certificate is _____________,
199__ which is a Determination Date under the Pooling and
Servicing Agreement.
5. The aggregate amount of Collections processed
during the preceding Monthly Period (equal to 5(a) plus
5(b)) was equal to $________.
(a) The aggregate amount of Collections of
Finance Charge Receivables collected during the
preceding Monthly Period (the "Collections of
Finance Charge Receivables") was equal to
$__________.
(b) The aggregate amount of Collections of
Principal Receivables collected during the
preceding Monthly Period (the "Collections of
Principal Receivables") was equal to $________.
6. The aggregate amount of Receivables as of
the end of the last day of the preceding Monthly Period
was equal to $__________.
7. Attached hereto is an authentic copy of the
statements required to be delivered by the Servicer on
the date of this Certificate to the Paying Agent pursuant
to Article V.
8. To the knowledge of the undersigned, there are
no Liens on any Receivables in the Trust except as
described below:
[If applicable, insert "None".]
9. The amount, if any, by which the sum of the
balance of the Excess Funding Account and the aggregate
Principal Receivables exceeds the Minimum Aggregate
Principal Receivables required to be maintained pursuant
to the Pooling and Servicing Agreement, is equal to
$_________.
10. The amount, if any, of the drawing request
required to be made by Trustee on the Servicer Letter of
Credit pursuant to subsection 4.3(a) of the Pooling and
Servicing Agreement on the related Transfer Date is equal
to $____________.
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this certificate this _____ day of ____________,
_____.
FIRST NATIONAL BANK OF
COMMERCE, Servicer
By:___________________________
Name:
Title:
Schedule __ to Monthly
Servicer's Certificate
-----------------------
FIRST NATIONAL BANK OF COMMERCE
__________________________
First NBC Credit Card Master Trust, Series ______
__________________________
For the _____________ Determination Date
For the ___________ Monthly Period
[TO COME]
EXHIBIT D
FORM OF ANNUAL SERVICER'S CERTIFICATE
-------------------------------------
(To be delivered on or before each
March 31 beginning with March 31, 1998,
pursuant to Section 3.5 of the Pooling and
Servicing Agreement referred to below)
FIRST NATIONAL BANK OF COMMERCE
FIRST NBC CREDIT CARD MASTER TRUST
The undersigned, a duly authorized representative of
First National Bank of Commerce, as Servicer ("First NBC"),
pursuant to the Pooling and Servicing Agreement dated as of
_______________ __, 1997 (as may be amended and supplemented
from time to time, the "Agreement"), among First NBC, as
Transferor and Servicer, and _____________________, as
Trustee, does hereby certify that:
1. First NBC is, as of the date hereof, Servicer under
the Agreement. Capitalized terms used in this Certificate have
their respective meanings as set forth in the Agreement.
2. The undersigned is a Servicing Officer who is duly
authorized pursuant to the Agreement to execute and deliver
this Certificate to Trustee.
3. A review of the activities of Servicer during the
fiscal year ended __________, ____, and of its performance
under the Agreement was conducted under my supervision.
4. Based on such review, Servicer has, to the best of my
knowledge, performed in all material respects its obligations
under the Agreement throughout such year and no default in the
performance of such obligations has occurred or is continuing
except as set forth in paragraph 5.
5. The following is a description of each default in the
performance of Servicer's obligations under the provisions of
the Agreement known to me to have been made by Servicer during
the fiscal year ended ___________, _____, which sets forth in
detail (i) the nature of each such default, (ii) the action
taken by Servicer, if any, to remedy each such default and
(iii) the current status of each such default: [if applicable,
insert "None."]
IN WITNESS WHEREOF, the undersigned has duly executed
this Certificate this ______ day of ____________, 19___.
FIRST NATIONAL BANK OF
COMMERCE, Servicer
By ________________________
Name:
Title:
EXHIBIT E
FORM OF OPINION OF COUNSEL WITH RESPECT
TO ADDITION OF ADDITIONAL ACCOUNTS
----------------------------------
(Provisions to be included in
Opinion of Counsel to be
delivered pursuant to
Section 2.6(d)(vi) of the
Pooling and Servicing Agreement)
The opinions set forth below may be subject to appropriate
qualifications, assumptions, limitations and exceptions.
1. The Receivables arising in such Additional Accounts
constitute accounts, general intangibles or chattel paper.
2. The Pooling and Servicing Agreement creates in favor
of Trustee, on behalf of the Trust, for the benefit of the
Investor Holders, a security interest in Transferor's rights
in the Receivables in such Additional Accounts and the
proceeds thereof.
3. The security interest described in paragraph 2 is
perfected and of first priority under the UCC.
4. No further filings or actions are required under the
UCC prior to ______________, _______ in order to maintain the
perfection and priority of the security interest created by
the Pooling and Servicing Agreement in favor of Trustee, on
behalf of the Trust, in Transferor's rights in the Receivables
in such Additional Accounts and the proceeds thereof.
EXHIBIT F
FORM OF 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 March 31 of the following year to
continue the perfected status of the interest of Trustee, on
behalf of the Trust, in the collateral described in the
financing statements referred to in such opinion.
EXHIBIT G
FORM OF REASSIGNMENT OF RECEIVABLES
-----------------------------------
(As required by Section 2.7 of
the Pooling and Servicing Agreement)
REASSIGNMENT No. _______ OF RECEIVABLES dated as of
_________, ____ * by and among FIRST NATIONAL BANK OF
COMMERCE, a national banking association, as Transferor
("Transferor") and Servicer ("Servicer"), and
___________________, [a [_____________] banking corporation]
("Trustee"), pursuant to the Pooling and Servicing Agreement
referred to below.
WITNESSETH:
WHEREAS, Transferor, Servicer and Trustee are parties to
the Pooling and Servicing Agreement dated as of ______________
__, 1997 (as may be amended and supplemented from time to
time, the "Agreement");
WHEREAS, pursuant to the Agreement, Transferor wishes to
remove from the Trust all Receivables in certain designated
Accounts (the "Removed Accounts") and to cause Trustee to
reconvey the Receivables of such Removed Accounts, whether now
existing or hereafter created, from the Trust to Transferor;
and
WHEREAS, Trustee is willing to accept such designation
and to reconvey the Receivables in the Removed Accounts
subject to the terms and conditions hereof;
NOW, THEREFORE, Transferor, Servicer and Trustee hereby
agree as follows:
1. Defined Terms. All terms defined in the Agreement and
used herein shall have such defined meanings when used herein,
unless otherwise defined herein.
"Removal Date" means, with respect to the Removed Accounts
designated hereby, ____________, _____.
-----------------------------
* To be dated as of the Removal Date.
"Removal Notice Date" means, with respect to the Removed
Accounts, ___________, ___.
2. Designation of Removed Accounts. On or before the date
that is ten Business Days after the Removal Date, Transferor
will deliver to Trustee a computer file or microfiche list
containing an accurate list of all Removed Accounts identified
by account number and the aggregate amount of the Receivables
in such Removed Accounts as of the Removal Date, which
computer file or microfiche list shall as of the Removal Date
modify and amend and be made part of the Agreement.
3. Conveyance of Receivables. (a) Trustee does hereby
transfer, assign, set over and otherwise convey, without
recourse, to Transferor, on and after the Removal Date, all
right, title and interest of Trustee, on behalf of the Trust,
in, to and under the Receivables existing at the close of
business on the Removal Date and thereafter created from time
to time in the Removed Accounts designated hereby, all monies
due or to become due with respect to such Receivables
(including all Finance Charge Receivables and Recoveries), all
proceeds of such Receivables and Insurance Proceeds relating
to such Receivables, and all proceeds thereof.
(b) In connection with such transfer, Trustee agrees to
execute and deliver to Transferor on or prior to the date this
Reassignment is delivered, applicable termination statements
with respect to the Receivables existing at the close of
business on the Removal Date and thereafter created from time
to time in the Removed Accounts reassigned hereby and the pro-
ceeds thereof evidencing the release by the Trust of its
interest in the Receivables in the Removed Accounts, and
meeting the requirements of applicable state law, in such
manner and such jurisdictions as are necessary to terminate
such interest.
4. Representations and Warranties of Transferor.
Transferor hereby represents and warrants to Trustee, on
behalf of the Trust, as of the Removal Date:
(a) Legal, Valid and Binding Obligation. This
Reassignment constitutes a legal, valid and binding
obligation of Transferor enforceable against Transferor,
in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement
of creditors' rights in general and except as such
enforceability may be limited by general principles of
equity (whether considered in a suit at law or in
equity);
(b) Pay Out Event, Minimum Transferor Interest,
Minimum Aggregate Principal Receivables, Series Payments.
Transferor reasonably believes that the removal of the
Receivables in the Removed Accounts will not (A) cause a
Pay Out Event to occur with respect to any Series
(provided that for purposes of this subsection 4(b)(A),
the Receivables in the Removed Accounts shall be
considered to have been removed as of the Removal Date),
(B) cause the Transferor Interest as a percentage of the
aggregate amount of Principal Receivables to be less than
the Minimum Transferor Interest, (C) cause the aggregate
amount of Principal Receivables to be less than the
Minimum Aggregate Principal Receivables, or (D) result in
the failure to make any payment specified in the related
Supplement with respect to any Series;
(c) Selection Procedure. No selection procedures
believed by Transferor to be materially adverse to the
interests of the Holders of any Series as of the Removal
Date were utilized in selecting the Removed Accounts to
be removed from the Trust;
(d) Rating Agency Notice; Approval. Each Rating
Agency has received notice, on or before the tenth
Business Day prior to the Removal Date, of the proposed
removal of the Receivables from the Removed Accounts, and
the Rating Agency Condition has been satisfied with
respect to the removal; and
(e) Amount of Principal Receivables. As of the
Removal Notice Date, the amount of Principal Receivables
of the Removed Accounts does not equal or exceed 5% of
the aggregate amount of Principal Receivables on the
Removal Date; provided, that if any Series has been paid
in full, the Principal Receivables in the Removed
Accounts can approximate the Initial Investor Interest of
such Series.
5. Ratification of Agreement. As supplemented by this
Reassignment, the Agreement is in all respects ratified and
confirmed and the Agreement as so supplemented by this
Reassignment shall be read, taken and construed as one and the
same instrument.
6. Counterparts. This Reassignment may be executed in two
or more counterparts, and by different parties on separate
counterparts, each of which shall be an original, but all of
which shall constitute one and the same instrument.
7. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, Transferor, Servicer and Trustee have
caused this Reassignment to be duly executed by their respective
officers as of the day and year first above written.
FIRST NATIONAL BANK OF COMMERCE,
Transferor and Servicer
By:___________________________________
Name:
Title:
______________________________________,
Trustee
By:___________________________________
Name:
Title:
EXHIBIT H
FORM OF RECONVEYANCE OF RECEIVABLES
-----------------------------------
RECONVEYANCE of RECEIVABLES, dated as of __________ __,
19__, by and between FIRST NATIONAL BANK OF COMMERCE, a
national banking association (the "Transferor") and
____________________, [a [___________] banking corporation]
(the "Trustee") pursuant to the Pooling and Servicing Agreement
referred to below.
W I T N E S S E T H:
WHEREAS, Transferor and Trustee are parties to the
Pooling and Servicing Agreement dated as of ___________ __,
1997 (hereinafter 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 First
National Bank of Commerce, as Transferor and Servicer, and
Trustee;
WHEREAS, pursuant to the Pooling and Servicing Agreement,
Transferor, as Holder of the Transferor Certificate, wishes to
cause Trustee to reconvey all of the Receivables and proceeds
thereof, whether now existing or hereafter created, from the
Trust to the Holder of the Transferor Certificate pursuant to
the terms of Section 12.4 of the Pooling and Servicing
Agreement upon termination of the Trust pursuant to Section
12.1 of the Pooling and Servicing Agreement (as each such term
is defined in the Pooling and Servicing Agreement);
WHEREAS, Trustee is willing to reconvey the Receivables
subject to the terms and conditions hereof;
NOW THEREFORE, Transferor and Trustee hereby agree as
follows:
1. Defined Terms. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined
meanings when used herein, unless otherwise defined herein.
"Reconveyance Date" shall mean __________ __, 19__.
2. Return of Lists of Accounts. Trustee shall deliver
to the Holder of the Transferor Certificate, not later than
three Business Days after the Reconveyance Date, each and
every computer file or microfiche list of Accounts delivered
to Trustee pursuant to the terms of the Pooling and Servicing
Agreement.
3. Conveyance of Receivables. (a) Trustee does hereby
reconvey to the Holder of the Transferor Certificate, without
recourse, representation or warranty, on and after the
Reconveyance Date, all right, title and interest of the Trust
in and to each and every Receivable now existing and hereafter
created in the Accounts, all monies due or to become due with
respect thereto (including all accrued interest heretofore
posted as Finance Charge Receivables and Recoveries), and all
proceeds of such Receivables and Insurance Proceeds relating
to such Receivables and Interchange (if any) allocable to the
Trust pursuant to any Supplement, except for amounts, if any,
held by Trustee pursuant to subsection 12.3(b) of the Pooling
and Servicing Agreement.
(b) In connection with such transfer, Trustee
agrees to execute and deliver on or prior to the date of this
Reconveyance, such UCC termination statements or other
instruments of transfer and assignment, in each case without
recourse, as the Holder of the Transferor Certificate may
reasonably request to vest in such Holder all right, title and
interest which the Trust had in the Receivables.
4. Counterparts. This Reconveyance may be executed in
two or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of
which together shall constitute one and the same instrument.
5. GOVERNING LAW. THIS RECONVEYANCE 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.
IN WITNESS WHEREOF, the undersigned have caused this
Reconveyance of Receivables to be duly executed and delivered
by their respective duly authorized officers on the day and
year first above written.
FIRST NATIONAL BANK OF COMMERCE,
Transferor and Servicer
By_____________________________________
Name:
Title:
_______________________________________,
Trustee
By_____________________________________
Name:
Title:
EXHIBIT I
FORM OF AMENDED SECTION 9.2
---------------------------
SECTION 9.2 Additional Rights Upon the Occurrence of
Certain Events. (a) If Transferor shall consent to the
appointment of a conservator or receiver or liquidator for the
winding-up or liquidation of its affairs, or a decree or order
of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a
conservator or receiver or liquidator for the winding-up or
liquidation of its affairs shall have been entered against
Transferor (an "Insolvency Event"), Transferor shall on the
day of such Insolvency Event (the "Appointment Day")
immediately cease to transfer Principal Receivables and
Discount Option Receivables to the Trust and shall promptly
give notice to Trustee of such Insolvency Event.
Notwithstanding any cessation of the transfer to the Trust of
additional Principal Receivables and Discount Option
Receivables, Finance Charge Receivables, whenever created,
accrued in respect of Principal Receivables or Discount Option
Receivables which have been transferred to the Trust shall
continue to be a part of the Trust, and Collections with
respect thereto shall continue to be allocated and paid in
accordance with Article IV. Within 15 days of the Appointment
Day, Trustee shall (i) publish a notice in an Authorized
Newspaper that an Insolvency Event has occurred and that
Trustee intends to sell, dispose of or otherwise liquidate the
Receivables in a commercially reasonable manner and (ii) send
written notice to the Investor Holders describing the
provisions of this Section 9.2 and requesting instructions
from such Holders. Unless within 90 days from the day notice
pursuant to clause (i) is first published, Trustee shall have
received written instructions of Holders of Investor
Certificates evidencing more than 50% of the Investor Interest
of each Series issued and outstanding (or, if any such Series
has two or more Classes, each Class) to the effect that such
Holders disapprove of the liquidation of the Receivables and
wish to continue having Principal Receivables and Discount
Option Receivables transferred to the Trust as before such
Insolvency Event, Trustee shall 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. Trustee may obtain a prior
determination for any such conservator, receiver or liquidator
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 subsection (a)
shall be treated as Collections on the Receivables and shall
be allocated and deposited in accordance with the provisions
of Article IV; provided, that Trustee shall determine
conclusively in its sole discretion the amount of such
proceeds which are allocable to Finance Charge Receivables and
the amount of such proceeds which are allocable to Principal
Receivables. Unless Trustee receives written instructions
from Investor Holders as provided in subsection (a), on the
day following the last Distribution Date in the Monthly Period
during which such proceeds are distributed to the Investor
Holders of each Series, the Trust shall terminate.
(c) Trustee may appoint an agent or agents to assist with
its responsibilities pursuant to this Article IX with respect
to competitive bids.
