Addition of Accounts; Repurchase of Investor Certificates. (a) If, (1) as of the end of any Monthly Period, the Transferor Amount is less than the Minimum Transferor Amount, the Transferor shall either (i) cause the Trust to repurchase Investor Certificates (to the extent permitted by and in accordance with the terms of any Supplement with respect to any Series) or (ii) designate additional Eligible Accounts (the "Additional Accounts") to be included as Accounts, in either case in a sufficient amount such that the Transferor Amount as of the end of such Monthly Period after giving effect to such repurchase or addition would have equaled or exceeded the Minimum Transferor Amount or (2) as of the end of any Monthly Period, the Aggregate Principal Receivables are less than the Minimum Aggregate Principal Receivables, then the Transferor shall designate Additional Accounts to be included as Accounts in a sufficient amount such that the Aggregate Principal Receivables after giving effect to such designations would have been equal to or greater than the Minimum Aggregate Principal Receivables. Receivables from such Additional Accounts shall be transferred to the Trust on or before 10 days following the Determination Date following such Monthly Period (the "Additional Account Closing Date"). Failure either (i) to cause the Trust to repurchase Investor Certificates if permitted pursuant to any Supplement or (ii) to add Additional Accounts as required by this Section 2.6(a), shall be a Pay Out Event with respect to the affected Series. (b) In addition to its obligation under Section 2.6(a), the Transferor may, but shall not be obligated to, designate from time to time Additional Accounts to be included as Accounts. (c) The Transferor agrees that any such transfer of Receivables from Additional Accounts under Section 2.6(a) or (b) shall satisfy the following conditions: (i) On or before the fifth Business Day prior to the Additional Account Closing Date, the Transferor shall give the Trustee and the Servicer written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferred; (ii) On or prior to the Additional Account Closing Date, the Transferor shall have delivered to the Trustee a written assignment (and the Trustee shall have accepted such assignment on behalf of the Trust for the benefit of the Investor Certificateholders and any Enhancement Provider) in substantially the form of Exhibit B (the "Assignment") and shall have clearly indicated in its computer files that the Receivables created in connection with the Additional Accounts have been transferred to the Trust and the Transferor shall have delivered to the Trustee a computer file, microfiche or written list represented by the Transferor to contain a true and complete list of all Additional Accounts identified by account number and by Receivable balance in such Additional Accounts as of the Additional Account Cut-Off Date, which computer file, microfiche or written list shall be as of the date of such Assignment incorporated into and made a part of such Assignment and this Agreement; (iii) The Transferor shall represent and warrant that (x) each Additional Account was, as of the Additional Account Cut-Off Date, an Eligible Account, (y) no selection procedures believed by the Transferor to be materially adverse to the interests of any outstanding Series of Investor Certificates or any Enhancement Provider were utilized in selecting the Additional Accounts from the available Eligible Accounts in the Transferor's portfolio; and (z) as of the Additional Account Closing Date, the Transferor is not insolvent and will not be made insolvent by the transfer of the Receivables of such Additional Accounts; (iv) The Transferor shall represent and warrant that, as of the Additional Account Closing Date, the Assignment constitutes either (A) a valid transfer and assignment to the Trust of all right, title and interest of the Transferor in and to the Receivables then existing and thereafter created in the Additional Accounts, all monies due or to become due with respect thereto on and after the Additional Account Cut-Off Date, Recoveries and all proceeds of such Receivables (to the extent set forth in Section 9-306 of the UCC as in effect in the Relevant UCC State), and such Receivables and all proceeds thereof will be conveyed to the Trust free and clear of any Lien of any Person claiming through or under the Transferor or any of its Affiliates, except for (x) Liens permitted under Section 2.5(b) hereunder, (y) the interest of the holder of the Exchangeable Transferor Certificate or any other Class of Certificate held by the Transferor from time to time and (z) any right of the holder of the Exchangeable Transferor Certificate to receive interest accruing on, and investment earnings with respect to, the Collection Account and any other account or accounts maintained for the benefit of Certificateholders or any Enhancement Provider, if any, as provided in this Agreement and any Supplement, or (B) a grant of a security interest (as defined in the UCC as in effect in the Relevant UCC State) in such property to the Trustee on behalf of the Trust, which is enforceable with respect to then existing Receivables of the Additional Accounts, and the proceeds thereof (to the extent set forth in Section 9-306 of the UCC as in effect in the Relevant UCC State), upon the conveyance of such Receivables to the Trust, and which will be enforceable with respect to the Receivables thereafter created in respect of Additional Accounts, and the proceeds thereof (to the extent set forth in Section 9-306 of the UCC as in effect in the Relevant UCC State), upon such creation; and (C) if the Assignment constitutes the grant of a security interest to the Trust in such property, upon the filing of financing statements as described in Section 2.1 with respect to such Additional Accounts and in the case of such Receivables of Additional Accounts thereafter created and the proceeds thereof (to the extent set forth in Section 9-306 of the UCC in effect in the Relevant UCC State) upon such creation, the Trust shall have a first priority perfected security interest in such property, except for Liens permitted under Section 2.5(b) hereunder; (v) The Transferor shall deliver to the Trustee (with a copy to the Rating Agencies), an Officer's Certificate confirming the items set forth in paragraphs (ii), (iii) and (iv) above and paragraph (vii) below. The Trustee may conclusively rely on such Officer's Certificate, shall have no duty to make inquiries with regard to the matters set forth therein and shall incur no liability in so relying; (vi) The Transferor shall deliver to the Trustee and each Rating Agency, an Opinion of Counsel with respect to the Receivables in the Additional Accounts substantially in the form of Part One of Exhibit G; (vii) The Transferor shall record and file financing statements with respect to the Receivables then existing and thereafter created in the Additional Accounts for the transfer of accounts, general intangibles and chattel paper (each as defined in the UCC in effect in the Relevant UCC State) meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the transfer and assignment of the Receivables in Additional Accounts by the Transferor to the Trust; and (viii) The Rating Agencies shall have received from the Transferor five (5) Business Days' notice, in the case of Additional Accounts being added pursuant to Section 2.6(a), and ten (10) Business Days' notice, in the case of Additional Accounts being added pursuant to Section 2.6(b), of such proposed addition of Additional Accounts and, in the event that Additional Accounts are being added pursuant to Section 2.6(b), the Rating Agency Condition shall have been satisfied. (i) The Transferor may from time to time, at its sole discretion, subject to and in compliance with the limitations and conditions specified below, (x) designate Eligible Accounts originated by a Seller (other than the initial Sellers) subsequent to its becoming an Eligible Originator to be included as Accounts as of the applicable Creation Date ("Automatic Additional Accounts"), and (y) may at any time discontinue or suspend designating Eligible Accounts to be included as Automatic Additional Accounts upon written notice to the Trustee. For purposes of this paragraph, Eligible Accounts shall be deemed to include only Eligible Accounts (x) of a type included as Accounts on the Initial Closing Date or any Additional Account Closing Date or consented to in writing by each Rating Agency and (y) not prohibited from being included as Accounts pursuant to the terms of any Supplement. The Transferor acknowledges and agrees with the Trustee, for the benefit of all Investor Certificateholders of all Series, that each Account originated or acquired by the Transferor on or after the Cut Off Date, shall be considered to be Automatic Additional Accounts constituting Accounts, each within the meaning of the Agreement, on and as of the applicable Creation Date of each such Account. The foregoing notwithstanding, Automatic Additional Accounts shall not include any Account acquired but not originated by any Eligible Originator and any Master Card or VISA credit cards, prior to the satisfaction of the Rating Agency Condition with respect thereto. (ii) The Transferor shall not be permitted to designate Automatic Additional Accounts pursuant to clause (i) above with respect to any period of the three consecutive Monthly Periods commencing in January, April, July or October of a calendar year, commencing in October 1997, unless the Rating Agency Condition is otherwise satisfied, if the number of Automatic Additional Accounts designated during such period or during any period of twelve (12) consecutive Monthly Periods would exceed the applicable Aggregate Automatic Addition Limit. (iii) The Transferor shall record and file financing statements with respect to the Receivables then existing and thereafter created in the Automatic Additional Accounts for the transfer of accounts, general intangibles and chattel paper (each as defined in the UCC in effect in the Relevant UCC State) meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the transfer and assignment of the Receivables in Automatic Additional Accounts by the Transferor to the Trust.
Appears in 2 contracts
Samples: Master Pooling and Servicing Agreement (Proffitts Credit Card Master Trust), Master Pooling and Servicing Agreement (Proffitts Credit Card Master Trust)
Addition of Accounts; Repurchase of Investor Certificates. (a) If, (1) as of the end of any Monthly Collection Period, (i) the Transferor Amount (after giving effect to any amounts deposited in the Excess Funding Account) is less than the Minimum Transferor Amount, the Transferor shall either (i) cause the Trust to repurchase Investor Certificates (to the extent permitted by and in accordance with the terms of any Supplement with respect to any Series) Amount or (ii) the Aggregate Principal Receivables is less than the Minimum Aggregate Principal Receivables (after giving effect to any amounts deposited in the Excess Funding Account), then the Transferor shall, before the close of business on the following Transfer Date, designate additional Eligible Accounts (the "Additional Accounts") to be included as Accounts, in either case in a sufficient amount such that the Transferor Amount as of the end of such Monthly Period after giving effect to such repurchase or addition would have equaled or exceeded the Minimum Transferor Amount or (2) as of the end of any Monthly Period, the Aggregate Principal Receivables are less than the Minimum Aggregate Principal Receivables, then the Transferor shall designate Additional Accounts to be included as Accounts in a sufficient amount such that the Aggregate Principal Receivables that, after giving effect to such designations would have been equal to or greater than designation, the Transferor Amount at least equals the Minimum Transferor Amount and the Aggregate Principal Receivables at least equals the Minimum Aggregate Principal Receivables. Receivables from ; provided, however, that the Transferor need not make any such Additional Accounts shall be transferred designation to the Trust extent that the deficiencies described in clauses (i) and (ii) above have been eliminated on or before 10 days following such Transfer Date through reductions in the Determination Date following such Monthly Period (Aggregate Invested Amount or through increases in the "Additional Account Closing Date"). Failure either (i) to cause amount on deposit in the Trust to repurchase Investor Certificates if permitted pursuant to any Supplement or (ii) to add Additional Accounts as required by this Section 2.6(a), shall be a Pay Out Event with respect to the affected SeriesExcess Funding Account.
(b) In addition to its obligation under Section 2.6(a), the Transferor may, but shall not be obligated to, designate from time to time Additional Accounts to be included as AccountsAccounts as of the related Additional Account Closing Date.
(c) The Transferor agrees that any such transfer designation of Receivables from Additional Accounts under Section 2.6(a) or (b) shall satisfy the following conditions:
(i) On or before the fifth Business Day prior to the Additional Account Closing Date, the Transferor shall give have given the Trustee Trustee, the Servicer, each Rating Agency and each other Person entitled thereto pursuant to the Servicer related Supplement written notice that such the Additional Accounts will be included as Accounts and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) On or prior to before the Additional Account Closing Date, the Transferor shall have delivered to the Trustee a written assignment (and the Trustee shall have accepted such assignment on behalf of the Trust for the benefit of the Investor Certificateholders and any Enhancement Provider) a written assignment substantially in substantially the form of Exhibit B C (the "Assignment") and shall have clearly indicated in its computer files or other appropriate books and records that the Receivables created in connection with the Additional Accounts have been transferred to the Trust Trustee and the Transferor shall have delivered or caused to have been delivered to the Trustee a computer file, file or microfiche or written list represented by the Transferor to contain a true and complete list of all the Additional Accounts identified by account number and by Receivable balance in such the Additional Accounts as of the Additional Account Cut-Off Date, which computer file, file or microfiche or written list shall be as of the date of such Assignment incorporated into and made a part of such Assignment and this Agreement;
(iii) The Transferor shall represent and warrant that (x) each Additional Account was, as of the Additional Account Cut-Off Date, an Eligible Account, (y) no selection procedures believed by the Transferor to be materially adverse to the interests of any outstanding Series of Investor Certificates or any Enhancement Provider were utilized used in selecting the Additional Accounts from the available Eligible Accounts in the Transferor's portfolioportfolio of MasterCard and VISA credit card accounts; and (z) as of the Additional Account Closing Date, the Transferor is not insolvent and will not be made insolvent by the transfer of the Receivables of such in the Additional Accounts;
(iv) The Transferor shall represent and warrant that, as of the Additional Account Closing Date, the Assignment constitutes either (A) a valid transfer and assignment to the Trust Trustee of all right, title and interest of the Transferor in and to the Receivables then existing and thereafter created in the Additional Accounts, all monies due or to become due and all amounts received with respect thereto on and or after the Additional Account Cut-Off Date, Recoveries Date and all proceeds of such Receivables thereof (to the extent set forth in Section 9-306 315 of the UCC as in effect in the Relevant UCC State), and such Receivables and all proceeds thereof will be conveyed transferred to the Trust Trustee free and clear of any Lien of any Person claiming through or under the Transferor or any of its Affiliates, except for (x) Liens permitted under Section 2.5(b) hereunder), (y) the interest of the Transferor as holder of the Exchangeable Transferor Certificate or any other Class of Certificate held by the Transferor from time to time and (z) any right of the holder of the Exchangeable Transferor Certificate to receive interest accruing on, and investment earnings with respect to, the Collection Account and or any other account or accounts maintained for the benefit of the Certificateholders or any Enhancement Provider, if any, Provider as provided in this Agreement and any Supplement, Supplement or (B) a grant of a security interest (as defined in the UCC as in effect in the Relevant UCC State) in such property to the Trustee on behalf of the Trust, which is enforceable with respect to then existing Receivables of the Additional Accounts, and the proceeds thereof Trustee.
(to the extent set forth in Section 9-306 of the UCC as in effect in the Relevant UCC State), upon the conveyance of such Receivables to the Trust, and which will be enforceable with respect to the Receivables thereafter created in respect of Additional Accounts, and the proceeds thereof (to the extent set forth in Section 9-306 of the UCC as in effect in the Relevant UCC State), upon such creation; and (Cv) if If the Assignment constitutes the grant of a security interest in such property to the Trust in such propertyTrustee, upon the filing Transferor shall represent and warrant, as of financing statements the Additional Account Closing Date, that:
(A) the Assignment creates a valid and continuing security interest (as described in Section 2.1 with respect to such Additional Accounts and defined in the case UCC of such Receivables of Additional Accounts thereafter created and the proceeds thereof (to the extent set forth in Section 9-306 of the UCC in effect in the Relevant UCC State) upon in such creationproperty in favor of the Trustee, which security interest is prior to all other Liens, and is enforceable as such against creditors of and purchasers from the Transferor;
(B) the Receivables transferred by the Transferor pursuant to the Assignment constitute "accounts" within the meaning of the UCC of the Relevant UCC State;
(C) the Transferor owns and has good and marketable title to the property transferred under the Assignment free and clear of any Lien, claim or encumbrance of any Person (other than any Lien described in clause (x), (y) or (z) of paragraph (iv) above);
(D) the Transferor has caused or will have caused, within ten (10) days of the execution of the Assignment, the Trust shall have a first priority perfected filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in such property, except for Liens permitted under Section 2.5(b) hereunderthe Receivables and the proceeds thereof granted to the Trustee pursuant to the Assignment;
(vE) other than the security interest granted to the Trustee pursuant to this Agreement or an Assignment, the Transferor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Receivables in the Additional Accounts or the proceeds thereof;
(F) the Transferor has not authorized the filing of and is not aware of any financing statements filed against the Transferor that include a description of the Receivables in the Additional Accounts other than any financing statement relating to the security interest granted to the Trustee pursuant to this Agreement or an Assignment or any financing statement that has been terminated; and
(G) the Transferor is not aware of any judgment or tax lien filings against the Transferor.
(vi) The Transferor shall deliver to the Trustee (with a copy to the Rating Agencies), ) an Officer's Certificate confirming the items set forth in paragraphs (ii), ) through (iii) and (ivv) above and paragraph (viiviii) below. The below (and the Trustee may conclusively rely on such Officer's Certificate, shall have no duty to make inquiries with regard to the matters set forth therein and shall incur no liability in so relying);
(vivii) The Transferor shall deliver to the Trustee and Trustee, with a copy to each Rating Agency, an Opinion of Counsel with respect to the Receivables in the Additional Accounts substantially in the form of Part One of Exhibit GH;
(viiviii) The Transferor shall record and file (and does hereby authorize the Trustee to record and file) financing statements with respect to the Receivables then existing and thereafter created in the Additional Accounts for the transfer of accounts, general intangibles and chattel paper accounts (each as defined in the UCC as in effect in the Relevant UCC State) meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the transfer and assignment of the Receivables in the Additional Accounts by the Transferor to the TrustTrustee; and
(viiiix) The Rating Agencies shall have received from the Transferor five (5) Business Days' notice, in the case of Additional Accounts being added pursuant to Section 2.6(a), and ten (10) Business Days' notice, in the case of Additional Accounts being added pursuant to Section 2.6(b), of such proposed addition of Additional Accounts and, in the event that Additional Accounts are being added pursuant to Section 2.6(b), the Rating Agency Condition shall have been satisfied.
(id) The Transferor may may, but shall not be obligated to, designate from time to time, at its sole discretion, subject to and in compliance with time additional MasterCard or VISA credit card accounts (the limitations and conditions specified below, (x"Automatic Additional Accounts") designate Eligible Accounts originated by a Seller (other than the initial Sellers) subsequent to its becoming an Eligible Originator to be included as Accounts by causing such Accounts (i) to be identified in the Bank's master computer files or other appropriate books and records as accounts subject to this Agreement or (ii) to be identified in a computer file or microfiche list delivered to the Trustee by or on behalf of the applicable Creation Date ("Automatic Additional Accounts"Transferor pursuant to Section 2.1(b), and (y) may at any time discontinue or suspend designating Eligible Accounts to be included as Automatic Additional Accounts upon written notice to the Trustee. For purposes of this paragraphSection 2.6(d), Eligible Automatic Additional Accounts shall be deemed to include only Eligible Accounts (x) of a type included as Accounts on the Initial Closing Assumption Date or any Additional Account Closing Date (but only if such Additional Account Closing Date related to Additional Accounts added pursuant to Section 2.6(b)) or consented to in writing by each Rating Agency (it being understood that non-consumer MasterCard or VISA credit card accounts and MasterCard or VISA credit card accounts secured by assets or deposits held by the Transferor are not of a type included as Accounts on the Assumption Date for purposes of this Section 2.6(d)) and (y) not prohibited from being included as Accounts pursuant to the terms of any Supplement. The Transferor acknowledges and agrees with the Trusteeshall provide to each Rating Agency, for the benefit of all Investor Certificateholders of all Series, that each Account originated or acquired by the Transferor on or after before the Cut Off fifth Business Day preceding the related Additional Account Closing Date, shall be considered to be Automatic Additional Accounts constituting Accounts, each within the meaning written notice of the Agreement, on and as any designation of the applicable Creation Date of each such Account. The foregoing notwithstanding, Automatic Additional Accounts shall not include any Account acquired but not originated by any Eligible Originator and any Master Card or VISA credit cards, prior to the satisfaction of the Rating Agency Condition with respect thereto.
(ii) The Transferor shall not be permitted to designate Automatic Additional Accounts pursuant to clause (i) above with respect to any period of the three consecutive Monthly Periods commencing in January, April, July or October of a calendar year, commencing in October 1997, unless the Rating Agency Condition is otherwise satisfied, if this Section 2.6(d). If the number of Automatic Additional Accounts designated during such period any calendar quarter or during any period of twelve (12) consecutive Monthly Periods would exceed months exceeds the applicable Aggregate Automatic Addition Limit.
, then, upon discovery of such excess designation, (iiix) the Excess Automatic Additional Accounts shall be deemed to be Removed Accounts and (y) the Trustee shall, without further action, be deemed to transfer, assign, set-over and otherwise convey to the Transferor, without recourse, representation or warranty, all right, title and interest of the Trust in and to the Receivables in the Excess Automatic Additional Accounts, all monies due or to become due and all amounts received with respect thereto and all proceeds thereof. The Trustee shall execute such documents and instruments of transfer or assignment as are prepared by the Transferor and take such other actions as shall be reasonably requested by the Transferor to effect the conveyance of such Receivables pursuant to this Section 2.6(d). If the removal of Excess Automatic Additional Accounts causes the Transferor Amount to be less than the Minimum Transferor Amount or the Aggregate Principal Receivables to be less than the Minimum Aggregate Principal Receivables, then the Transferor shall, no later than 10 Business Days after such removal, designate Additional Accounts to be included as Accounts in accordance with Section 2.6(a) in an amount such that, after giving effect to such designation, the Transferor Amount at least equals the Minimum Transferor Amount and the Aggregate Principal Receivables at least equals the Minimum Aggregate Principal Receivables; provided, however, that the Transferor need not make any such designation to the extent that such deficiencies have been eliminated on or before such tenth Business Day through reductions in the Aggregate Invested Amount or through increases in the amount on deposit in the Excess Funding Account. The removal of Excess Automatic Additional Accounts in accordance with this Section 2.6(d) shall be deemed to cure any violation of the Aggregate Automatic Addition Limit, and such removal shall constitute the sole remedy respecting any such violation available to Certificateholders or the Trustee on behalf of Certificateholders. The Transferor shall record and file (and does hereby authorize the Trustee to record and file), at the expense of the Transferor, financing statements (and continuation statements with respect to such financing statements when applicable) with respect to the Receivables then existing and thereafter created in the Automatic Additional Accounts for the transfer of accounts, general intangibles and chattel paper accounts (each as defined in the UCC as in effect in the Relevant UCC State) meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the transfer and assignment of the such Receivables in Automatic Additional Accounts by the Transferor to the TrustTrustee, and to deliver a file-stamped copy of such financing statements or other evidence of such filings to the Trustee.
Appears in 1 contract
Samples: Master Pooling and Servicing Agreement (Fnanb Credit Card Master Trust)
Addition of Accounts; Repurchase of Investor Certificates. (a) If, (1) as of the end of any Monthly Collection Period, (i) the Transferor Amount (after giving effect to any amounts deposited in the Excess Funding Account) is less than the Minimum Transferor Amount, the Transferor shall either (i) cause the Trust to repurchase Investor Certificates (to the extent permitted by and in accordance with the terms of any Supplement with respect to any Series) Amount or (ii) designate additional Eligible Accounts (the "Additional Accounts") to be included as Accounts, in either case in a sufficient amount such that the Transferor Amount as of the end of such Monthly Period after giving effect to such repurchase or addition would have equaled or exceeded the Minimum Transferor Amount or (2) as of the end of any Monthly Period, the Aggregate Principal Receivables are is less than the Minimum Aggregate Principal Receivables, then the Transferor shall shall, before the close of business on the following Transfer Date, designate additional Eligible Accounts (the "Additional Accounts ---------- Accounts") to be included as Accounts in a sufficient amount such that that, after -------- giving effect to such designation, the Transferor Amount at least equals the Minimum Transferor Amount and the Aggregate Principal Receivables after giving effect to such designations would have been equal to or greater than at least equals the Minimum Aggregate Principal Receivables. Receivables from ; provided, however, that the -------- ------- Transferor need not make any such Additional Accounts shall be transferred designation to the Trust extent that the deficiencies described in clauses (i) and (ii) above have been eliminated on or before 10 days following such Transfer Date through reductions in the Determination Date following such Monthly Period (Aggregate Invested Amount or through increases in the "Additional Account Closing Date"). Failure either (i) to cause amount on deposit in the Trust to repurchase Investor Certificates if permitted pursuant to any Supplement or (ii) to add Additional Accounts as required by this Section 2.6(a), shall be a Pay Out Event with respect to the affected SeriesExcess Funding Account.
(b) In addition to its obligation under Section 2.6(a), the Transferor may, but shall not be obligated to, designate from time to time Additional Accounts to be included as AccountsAccounts as of the related Additional Account Closing Date.
(c) The Transferor agrees that any such transfer designation of Receivables from Additional Accounts under Section 2.6(a) or (b) shall satisfy the following conditions:
(i) On or before the fifth Business Day prior to the Additional Account Closing Date, the Transferor shall give have given the Trustee Trustee, the Servicer, each Rating Agency and each other Person entitled thereto pursuant to the Servicer related Supplement written notice that such the Additional Accounts will be included as Accounts and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) On or prior to before the Additional Account Closing Date, the Transferor shall have delivered to the Trustee a written assignment (and the Trustee shall have accepted such assignment on behalf of the Trust for the benefit of the Investor Certificateholders and any Enhancement Provider) a written assignment substantially in substantially the form of Exhibit B (the "Assignment") and shall --------- ---------- have clearly indicated in its computer files that the Receivables created in connection with the Additional Accounts have been transferred to the Trust and the Transferor shall have delivered to the Trustee a computer file, file or microfiche or written list represented by the Transferor to contain a true and complete list of all the Additional Accounts identified by account number and by Receivable balance in such the Additional Accounts as of the Additional Account Cut-Off Date, which computer file, file or microfiche or written list shall be as of the date of such Assignment incorporated into and made a part of such Assignment and this Agreement;
(iii) The Transferor shall represent and warrant that (x) each Additional Account was, as of the Additional Account Cut-Off Date, an Eligible Account, (y) no selection procedures believed by the Transferor to be materially adverse to the interests of any outstanding Series of Investor Certificates or any Enhancement Provider were utilized used in selecting the Additional Accounts from the available Eligible Accounts in the Transferor's portfolioportfolio of consumer revolving credit card accounts; and (z) as of the Additional Account Closing Date, the Transferor is not insolvent and will not be made insolvent by the transfer of the Receivables of such in the Additional Accounts;
(iv) The Transferor shall represent and warrant that, as of the Additional Account Closing Date, the Assignment constitutes either (A) a valid transfer and assignment to the Trust of all right, title and interest of the Transferor in and to the Receivables then existing and thereafter created in the Additional Accounts, all monies due or to become due and all amounts received with respect thereto on and or after the Additional Account Cut-Off Date, Recoveries Date and all proceeds of such Receivables thereof (to the extent set forth in Section 9-306 315 of the UCC as in effect in the Relevant UCC State), and such Receivables and all proceeds thereof will be conveyed transferred to the Trust free and clear of any Lien of any Person claiming through or under the Transferor or any of its Affiliates, except for (x) Liens permitted under Section 2.5(b) hereunder, (y2.5(b),(y) the interest of the Transferor as holder of the Exchangeable Transferor Certificate or any other Class of Certificate held by the Transferor from time to time and (z) any right of the holder of the Exchangeable Transferor Certificate to receive interest accruing on, and investment earnings with respect to, the Collection Account and or any other account or accounts maintained for the benefit of the Certificateholders or any Enhancement Provider, if any, Provider as provided in this Agreement and any Supplement, Supplement or (B) a grant of a security interest (as defined in the UCC as in effect in the Relevant UCC State) in such property to the Trustee on behalf of the Trust, which is enforceable with respect to then existing Receivables of the Additional Accounts, and the proceeds thereof .
(to the extent set forth in Section 9-306 of the UCC as in effect in the Relevant UCC State), upon the conveyance of such Receivables to the Trust, and which will be enforceable with respect to the Receivables thereafter created in respect of Additional Accounts, and the proceeds thereof (to the extent set forth in Section 9-306 of the UCC as in effect in the Relevant UCC State), upon such creation; and (Cv) if If the Assignment constitutes the grant of a security interest in such property to the Trust in such propertyTrustee, upon the filing Transferor shall represent and warrant, as of financing statements the Additional Account Closing Date, that:
(A) the Assignment creates a valid and continuing security interest (as described in Section 2.1 with respect to such Additional Accounts and defined in the case UCC of such Receivables of Additional Accounts thereafter created and the proceeds thereof (to the extent set forth in Section 9-306 of the UCC in effect in the Relevant UCC State) upon in such creationproperty in favor of the Trustee, which security interest is prior to all other Liens, and is enforceable as such against creditors of and purchasers from the Transferor;
(B) the Receivables transferred by the Transferor pursuant to the Assignment constitute "accounts" within the meaning of the UCC of the Relevant UCC State;
(C) the Transferor owns and has good and marketable title to the property transferred under the Assignment free and clear of any Lien, claim or encumbrance of any Person (other than any Lien described in clause (x), (y) or (z) of paragraph (iv) above);
(D) the Transferor has caused or will have caused, within ten (10) days of the execution of the Assignment, the Trust shall have a first priority perfected filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in such property, except for Liens permitted under Section 2.5(b) hereunderthe Receivables and the proceeds thereof granted to the Trustee pursuant to the Assignment;
(vE) other than the security interest granted to the Trustee pursuant to this Agreement or an Assignment, the Transferor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Receivables in the Additional Accounts or the proceeds thereof;
(F) the Transferor has not authorized the filing of and is not aware of any financing statements filed against the Transferor that include a description of the Receivables in the Additional Accounts other than any financing statement relating to the transfer of the Receivables to the Transferor pursuant to the Receivables Purchase Agreement or the security interest granted to the Trustee pursuant to this Agreement or an Assignment or any financing statement that has been terminated; and
(G) the Transferor is not aware of any judgment or tax lien filings against the Transferor.
(vi) The Transferor shall deliver to the Trustee (with a copy to the Rating Agencies), ) an Officer's Certificate confirming the items set forth in paragraphs (ii), ) through (iii) and (ivv) above and paragraph (viiviii) below. The below (and the Trustee may conclusively rely on such Officer's Certificate, shall have no duty to make inquiries with regard to the matters set forth therein and shall incur no liability in so relying);
(vivii) The Transferor shall deliver to the Trustee and Trustee, with a copy to each Rating Agency, an Opinion of Counsel with respect to the Receivables in the Additional Accounts substantially in the form of Part One of Exhibit G;
(viiviii) The Transferor shall record and file (and does hereby authorize the Trustee to record and file) financing statements with respect to the Receivables then existing and thereafter created in the Additional Accounts for the transfer of accounts, general intangibles and chattel paper accounts (each as defined in the UCC as in effect in the Relevant UCC State) meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the transfer and assignment of the Receivables in the Additional Accounts by the Transferor to the Trust; and
(viiiix) The Rating Agencies shall have received from the Transferor five (5) Business Days' notice, in the case of Additional Accounts being added pursuant to Section 2.6(a), and ten (10) Business Days' notice, in the case of Additional Accounts being added pursuant to Section 2.6(b), of such proposed addition of Additional Accounts and, in the event that Additional Accounts are being added pursuant to Section 2.6(b), the Rating Agency Condition shall have been satisfied.
(id) The Transferor may may, but shall not be obligated to, designate from time to time, at its sole discretion, subject to and in compliance with time additional consumer revolving credit card accounts (the limitations and conditions specified below, (x"Automatic Additional Accounts") designate Eligible Accounts originated by a Seller (other than the initial Sellers) subsequent to its becoming an Eligible Originator to be included as Accounts as of the applicable Creation Date ("Automatic Additional Accounts"), and (y) may at any time discontinue or suspend designating Eligible by causing such ----------------------------- Accounts to be included identified pursuant to Section 2.2(d) of the Receivables Purchase Agreement in the Bank's master computer files by the four digit identifying code number 1006, 1007, 1906, 1907, 2006, 2007, 3206, 3207, 3306, 3307, 3506, 3507, 3706, 3707, 3806, 3807, 3906, 3907, 4306, 4307, 4406, 4407, 4506, 4507, 4606, 4607, 4706, 4707, 4806 or 4807 (and, in each case, is identified as Automatic Additional Accounts upon written notice being correlated to Big Agent 2000) and in the computer file or microfiche list delivered to the TrusteeTrustee by the Transferor with respect to such Accounts pursuant to Section 2.1(b). For purposes of this paragraphSection 2.6(d), Eligible Automatic Additional Accounts shall be deemed to include only Eligible Accounts (x) of a type included as Accounts on the Initial Closing Substitution Date or any Additional Account Closing Date (but only if such Additional Account Closing Date related to Additional Accounts added pursuant to Section 2.6(b)) or consented to in writing by each Rating Agency and (y) not prohibited from being included as Accounts pursuant to the terms of any Supplement. The Transferor acknowledges and agrees with the Trustee, for the benefit of all Investor Certificateholders of all Series, that each Account originated or acquired by the Transferor on or after the Cut Off Date, shall be considered to be Automatic Additional Accounts constituting Accounts, each within the meaning of the Agreement, on and as of the applicable Creation Date of each such Account. The foregoing notwithstanding, Automatic Additional Accounts shall not include any Account acquired but not originated by any Eligible Originator and any Master Card or VISA credit cards, prior to the satisfaction of the Rating Agency Condition with respect thereto.
(ii) The Transferor shall not be permitted to designate Automatic Additional Accounts pursuant to clause (i) above with respect to any period of the three consecutive Monthly Periods commencing in January, April, July or October of a calendar year, commencing in October 1997, unless the Rating Agency Condition is otherwise satisfied, if If the number of Automatic Additional Accounts designated during such period any calendar quarter or during any period of twelve (12) consecutive Monthly Periods would exceed months exceeds the applicable Aggregate Automatic Addition Limit.
, then, upon discovery of such excess designation, (iiix) the Excess Automatic Additional Accounts shall be deemed to be Removed Accounts and (y) the Trustee shall, without further action, be deemed to transfer, assign, set-over and otherwise convey to the Transferor, without recourse, representation or warranty, all right, title and interest of the Trust in and to the Receivables in the Excess Automatic Additional Accounts, all monies due or to become due and all amounts received with respect thereto and all proceeds thereof. The Trustee shall execute such documents and instruments of transfer or assignment as are prepared by the Transferor and take such other actions as shall be reasonably requested by the Transferor to effect the conveyance of such Receivables pursuant to this Section 2.6(d). If the removal of Excess Automatic Additional Accounts causes the Transferor Amount to be less than the Minimum Transferor Amount or the Aggregate Principal Receivables to be less than the Minimum Aggregate Principal Receivables, then the Transferor shall, no later than 10 Business Days after such removal, designate Additional Accounts to be included as Accounts in accordance with Section 2.6(a) in an amount such that, after giving effect to such designation, the Transferor Amount at least equals the Minimum Transferor Amount and the Aggregate Principal Receivables at least equals the Minimum Aggregate Principal Receivables; provided, however, that the Transferor need not make any such -------- ------- designation to the extent that such deficiencies have been eliminated on or before such tenth Business Day through reductions in the Aggregate Invested Amount or through increases in the amount on deposit in the Excess Funding Account. The removal of Excess Automatic Additional Accounts in accordance with this Section 2.6(d) shall be deemed to cure any violation of the Aggregate Automatic Addition Limit, and such removal shall constitute the sole remedy respecting any such violation available to Certificateholders or the Trustee on behalf of Certificateholders. The Transferor shall record and file (and does hereby authorize the Trustee to record and file), at the expense of the Transferor, financing statements (and continuation statements with respect to such financing statements when applicable) with respect to the Receivables then existing and thereafter created in the Automatic Additional Accounts for the transfer of accounts, general intangibles and chattel paper accounts (each as defined in the UCC as in effect in the Relevant UCC State) meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the transfer and assignment of the such Receivables in Automatic Additional Accounts by the Transferor to the Trust, and to deliver a file-stamped copy of such financing statements or other evidence of such filings to the Trustee.
Appears in 1 contract
Samples: Master Pooling and Servicing Agreement (Circuit City Credit Card Master Trust)
Addition of Accounts; Repurchase of Investor Certificates. (a) If, (1) as of the end of any Monthly Collection Period, (i) the Transferor Amount (after giving effect to any amounts deposited in the Excess Funding Account) is less than the Minimum Transferor Amount, the Transferor shall either (i) cause the Trust to repurchase Investor Certificates (to the extent permitted by and in accordance with the terms of any Supplement with respect to any Series) Amount or (ii) the Aggregate Principal Receivables is less than the Minimum Aggregate Principal Receivables (after giving effect to any amounts deposited in the Excess Funding Account), then the Transferor shall, before the close of business on the following Transfer Date, designate additional Eligible Accounts (the "“Additional Accounts"”) to be included as Accounts, in either case in a sufficient amount such that the Transferor Amount as of the end of such Monthly Period after giving effect to such repurchase or addition would have equaled or exceeded the Minimum Transferor Amount or (2) as of the end of any Monthly Period, the Aggregate Principal Receivables are less than the Minimum Aggregate Principal Receivables, then the Transferor shall designate Additional Accounts to be included as Accounts in a sufficient amount such that the Aggregate Principal Receivables that, after giving effect to such designations would have been equal to or greater than designation, the Transferor Amount at least equals the Minimum Transferor Amount and the Aggregate Principal Receivables at least equals the Minimum Aggregate Principal Receivables. Receivables from ; provided, however, that the Transferor need not make any such Additional Accounts shall be transferred designation to the Trust extent that the deficiencies described in clauses (i) and (ii) above have been eliminated on or before 10 days following such Transfer Date through reductions in the Determination Date following such Monthly Period (Aggregate Invested Amount or through increases in the "Additional Account Closing Date"). Failure either (i) to cause amount on deposit in the Trust to repurchase Investor Certificates if permitted pursuant to any Supplement or (ii) to add Additional Accounts as required by this Section 2.6(a), shall be a Pay Out Event with respect to the affected SeriesExcess Funding Account.
(b) In addition to its obligation under Section 2.6(a), the Transferor may, but shall not be obligated to, designate from time to time Additional Accounts to be included as AccountsAccounts as of the related Additional Account Closing Date.
(c) The Transferor agrees that any such transfer designation of Receivables from Additional Accounts under Section 2.6(a) or (b) shall satisfy the following conditions:
(i) On or before the fifth Business Day prior to the Additional Account Closing DateDate with respect to additions pursuant to Section 2.6(a) and on or before the tenth Business Day prior to the Additional Account Closing Date with respect to additions pursuant to Section 2.6(b), the Transferor shall give have given the Trustee Trustee, the Servicer, each Rating Agency and each other Person entitled thereto pursuant to the Servicer related Supplement written notice that such the Additional Accounts will be included as Accounts and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) On or prior to before the Additional Account Closing Date, the Transferor shall have delivered to the Trustee a written assignment (and the Trustee shall have accepted such assignment on behalf of the Trust for the benefit of the Investor Certificateholders and any Enhancement Provider) a written assignment substantially in substantially the form of Exhibit B C (the "“Assignment"”) and shall have clearly indicated in its computer files that the Receivables created in connection with the Additional Accounts have been transferred to the Trust Trustee and within five Business Days thereafter, the Transferor shall have delivered or caused to have been delivered to the Trustee a computer file, file or microfiche or written list represented by the Transferor to contain a true and complete list of all the Additional Accounts identified by account number and by Receivable balance in such the Additional Accounts as of the Additional Account Cut-Off Date, which computer file, file or microfiche or written list shall be as of the date of such Assignment incorporated into and made a part of such Assignment and this Agreement;
(iii) The Transferor shall represent and warrant that (x) each Additional Account was, as of the Additional Account Cut-Off Date, an Eligible Account, (y) no selection procedures believed by the Transferor to be materially adverse to the interests of any outstanding Series of Investor Certificates or any Enhancement Provider were utilized used in selecting the Additional Accounts from the available Eligible Accounts in the Transferor's portfolio’s portfolio of consumer revolving credit card accounts; and (z) as of the Additional Account Closing Date, the Transferor is not insolvent and will not be made insolvent by the transfer of the Receivables of such in the Additional Accounts;
(iv) The Transferor shall represent and warrant that, as of the Additional Account Closing Date, the Assignment constitutes either (A) a valid transfer and assignment to the Trust Trustee of all right, title and interest of the Transferor in and to the Receivables then existing and thereafter created in the Additional Accounts, all monies due or to become due and all amounts received with respect thereto on and or after the Additional Account Cut-Off Date, Recoveries Date and all proceeds of such Receivables thereof (to the extent set forth in Section 9-306 315 of the UCC as in effect in the Relevant UCC State), and such Receivables and all proceeds thereof will be conveyed transferred to the Trust Trustee free and clear of any Lien of any Person claiming through or under the Transferor or any of its Affiliates, except for (x) Liens permitted under Section 2.5(b) hereunder, (y2.5(b),(y) the interest of the Transferor as holder of the Exchangeable Transferor Certificate or any other Class of Certificate held by the Transferor from time to time and (z) any right of the holder of the Exchangeable Transferor Certificate to receive interest accruing on, and investment earnings with respect to, the Collection Account and or any other account or accounts maintained for the benefit of the Certificateholders or any Enhancement Provider, if any, Provider as provided in this Agreement and any Supplement, Supplement or (B) a grant of a security interest (as defined in the UCC as in effect in the Relevant UCC State) in such property to the Trustee on behalf of the Trust, which is enforceable with respect to then existing Receivables of the Additional Accounts, and the proceeds thereof Trustee.
(to the extent set forth in Section 9-306 of the UCC as in effect in the Relevant UCC State), upon the conveyance of such Receivables to the Trust, and which will be enforceable with respect to the Receivables thereafter created in respect of Additional Accounts, and the proceeds thereof (to the extent set forth in Section 9-306 of the UCC as in effect in the Relevant UCC State), upon such creation; and (Cv) if If the Assignment constitutes the grant of a security interest in such property to the Trust in such propertyTrustee, upon the filing Transferor shall represent and warrant, as of financing statements the Additional Account Closing Date, that:
(A) the Assignment creates a valid and continuing security interest (as described in Section 2.1 with respect to such Additional Accounts and defined in the case UCC of such Receivables of Additional Accounts thereafter created and the proceeds thereof (to the extent set forth in Section 9-306 of the UCC in effect in the Relevant UCC State) upon in such creationproperty in favor of the Trustee, which security interest is prior to all other Liens, and is enforceable as such against creditors of and purchasers from the Transferor;
(B) the Receivables transferred by the Transferor pursuant to the Assignment constitute “accounts” within the meaning of the UCC of the Relevant UCC State;
(C) the Transferor owns and has good and marketable title to the property transferred under the Assignment free and clear of any Lien, claim or encumbrance of any Person (other than any Lien described in clause (x), (y) or (z) of paragraph (iv) above);
(D) the Transferor has caused or will have caused, within ten (10) days of the execution of the Assignment, the Trust shall have a first priority perfected filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in such property, except for Liens permitted under Section 2.5(b) hereunderthe Receivables and the proceeds thereof granted to the Trustee pursuant to the Assignment;
(vE) other than the security interest granted to the Trustee pursuant to this Agreement or an Assignment, the Transferor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Receivables in the Additional Accounts or the proceeds thereof;
(F) the Transferor has not authorized the filing of and is not aware of any financing statements filed against the Transferor that include a description of the Receivables in the Additional Accounts other than any financing statement relating to the security interest granted to the Trustee pursuant to this Agreement or an Assignment or any financing statement that has been terminated; and
(G) the Transferor is not aware of any judgment or tax lien filings against the Transferor.
(vi) The Transferor shall deliver to the Trustee (with a copy to the Rating Agencies), ) an Officer's ’s Certificate confirming the items set forth in paragraphs (ii), ) through (iii) and (ivv) above and paragraph (viiviii) below. The below (and the Trustee may conclusively rely on such Officer's ’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);
(vivii) The Transferor shall deliver to the Trustee and Trustee, with a copy to each Rating Agency, an Opinion of Counsel with respect to the Receivables in the Additional Accounts substantially in the form of Part One of Exhibit GH;
(viiviii) The Transferor shall record and file (and does hereby authorize the Trustee to record and file) financing statements with respect to the Receivables then existing and thereafter created in the Additional Accounts for the transfer of accounts, general intangibles and chattel paper accounts (each as defined in the UCC as in effect in the Relevant UCC State) meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the transfer and assignment of the Receivables in the Additional Accounts by the Transferor to the TrustTrustee; and
(viiiix) The Rating Agencies shall have received from the Transferor five (5) Business Days' notice, in the case of Additional Accounts being added pursuant to Section 2.6(a), and ten (10) Business Days' notice, in the case of Additional Accounts being added pursuant to Section 2.6(b), of such proposed addition of Additional Accounts and, in In the event that Additional Accounts are being added pursuant to Section 2.6(b), the Rating Agency Condition shall have been satisfied.
(id) The Transferor may may, but shall not be obligated to, designate from time to time, at its sole discretion, subject to and in compliance with time additional consumer revolving credit card accounts (the limitations and conditions specified below, (x“Automatic Additional Accounts”) designate Eligible Accounts originated by a Seller (other than the initial Sellers) subsequent to its becoming an Eligible Originator to be included as Accounts by causing such Accounts (i) to be identified in the Bank’s master computer files as accounts subject to this Agreement or (ii) to be identified in a computer file or microfiche list delivered to the Trustee by or on behalf of the applicable Creation Date ("Automatic Additional Accounts"Transferor pursuant to Section 2.1(b), and (y) may at any time discontinue or suspend designating Eligible Accounts to be included as Automatic Additional Accounts upon written notice to the Trustee. For purposes of this paragraphSection 2.6(d), Eligible Automatic Additional Accounts shall be deemed to include only Eligible Accounts (x) of a type included as Accounts on the Initial Closing Assumption Date or any Additional Account Closing Date (but only if such Additional Account Closing Date related to Additional Accounts added pursuant to Section 2.6(b)) or consented to in writing by each Rating Agency (it being understood that non-consumer revolving credit card accounts and revolving credit card accounts secured by assets or deposits held by the Transferor are not of a type included as Accounts on the Assumption Date for purposes of this Section 2.6(d)) and (y) not prohibited from being included as Accounts pursuant to the terms of any Supplement. The Transferor acknowledges and agrees with the Trusteeshall provide to each Rating Agency, for the benefit of all Investor Certificateholders of all Series, that each Account originated or acquired by the Transferor on or after before the Cut Off fifth Business Day preceding the related Additional Account Closing Date, shall be considered to be Automatic Additional Accounts constituting Accounts, each within the meaning written notice of the Agreement, on and as any designation of the applicable Creation Date of each such Account. The foregoing notwithstanding, Automatic Additional Accounts shall not include any Account acquired but not originated by any Eligible Originator and any Master Card or VISA credit cards, prior to the satisfaction of the Rating Agency Condition with respect thereto.
(ii) The Transferor shall not be permitted to designate Automatic Additional Accounts pursuant to clause (i) above with respect to any period of the three consecutive Monthly Periods commencing in January, April, July or October of a calendar year, commencing in October 1997, unless the Rating Agency Condition is otherwise satisfied, if this Section 2.6(d). If the number of Automatic Additional Accounts designated during such period any calendar quarter or during any period of twelve (12) consecutive Monthly Periods would exceed months exceeds the applicable Aggregate Automatic Addition Limit.
, then, upon discovery of such excess designation, (iiix) the Excess Automatic Additional Accounts shall be deemed to be Removed Accounts and (y) the Trustee shall, without further action, be deemed to transfer, assign, set-over and otherwise convey to the Transferor, without recourse, representation or warranty, all right, title and interest of the Trust in and to the Receivables in the Excess Automatic Additional Accounts, all monies due or to become due and all amounts received with respect thereto and all proceeds thereof; provided, however, that any Circuit City Plus Substitution Account shall, for purposes of this Section 2.6(d) and the definition of Aggregate Automatic Addition Limit set forth in Section 1.1 or Exhibit K, be disregarded in calculating the number of Automatic Additional Accounts designated during any period. The Trustee shall execute such documents and instruments of transfer or assignment as are prepared by the Transferor and take such other actions as shall be reasonably requested by the Transferor to effect the conveyance of such Receivables pursuant to this Section 2.6(d). If the removal of Excess Automatic Additional Accounts causes the Transferor Amount to be less than the Minimum Transferor Amount or the Aggregate Principal Receivables to be less than the Minimum Aggregate Principal Receivables, then the Transferor shall, no later than 10 Business Days after such removal, designate Additional Accounts to be included as Accounts in accordance with Section 2.6(a) in an amount such that, after giving effect to such designation, the Transferor Amount at least equals the Minimum Transferor Amount and the Aggregate Principal Receivables at least equals the Minimum Aggregate Principal Receivables; provided, however, that the Transferor need not make any such designation to the extent that such deficiencies have been eliminated on or before such tenth Business Day through reductions in the Aggregate Invested Amount or through increases in the amount on deposit in the Excess Funding Account. The removal of Excess Automatic Additional Accounts in accordance with this Section 2.6(d) shall be deemed to cure any violation of the Aggregate Automatic Addition Limit, and such removal shall constitute the sole remedy respecting any such violation available to Certificateholders or the Trustee on behalf of Certificateholders. The Transferor shall record and file (and does hereby authorize the Trustee to record and file), at the expense of the Transferor, financing statements (and continuation statements with respect to such financing statements when applicable) with respect to the Receivables then existing and thereafter created in the Automatic Additional Accounts for the transfer of accounts, general intangibles and chattel paper accounts (each as defined in the UCC as in effect in the Relevant UCC State) meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the transfer and assignment of the such Receivables in Automatic Additional Accounts by the Transferor to the TrustTrustee, and to deliver a file-stamped copy of such financing statements or other evidence of such filings to the Trustee.
Appears in 1 contract
Samples: Master Pooling and Servicing Agreement (Circuit City Credit Card Master Trust)
Addition of Accounts; Repurchase of Investor Certificates. (a) If, (1) as of the end of any Monthly Period, the Transferor Amount is less than the Minimum Transferor Amount, the Transferor shall either (i) cause the Trust to repurchase Investor Certificates (to the extent permitted by and in accordance with the terms of any Supplement with respect to any Series) or (ii) designate additional Eligible Accounts (the "Additional Accounts") to be included as Accounts, in either case in a sufficient amount such that the Transferor Amount as of the end of such Monthly Period after giving effect to such repurchase or addition would have equaled or exceeded the Minimum Transferor Amount or (2) as of the end of any Monthly Period, the Aggregate Principal Receivables are less than the Minimum Aggregate Principal Receivables, then the Transferor shall designate Additional Accounts to be included as Accounts in a sufficient amount such that the Aggregate Principal Receivables after giving effect to such designations would have been equal to or greater than the Minimum Aggregate Principal Receivables. Receivables from such Additional Accounts shall be transferred to the Trust on or before 10 days following the Determination Date following such Monthly Period (the "Additional Account Closing Date"). Failure either (i) to cause the Trust to repurchase Investor Certificates if permitted pursuant to any Supplement or (ii) to add Additional Accounts as required by this Section 2.6(a), shall be a Pay Out Event with respect to the affected Series.
(b) In addition to its obligation under Section 2.6(a), the Transferor may, but shall not be obligated to, designate from time to time Additional Accounts to be included as Accounts.
(c) The Transferor agrees that any such transfer of Receivables from Additional Accounts under Section 2.6(a) or (b) shall satisfy the following conditions:
(i) On or before the fifth Business Day prior to the Additional Account Closing Date, the Transferor shall give the Trustee and the Servicer written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) On or prior to the Additional Account Closing Date, the Transferor shall have delivered to the Trustee a written assignment (and the Trustee shall have accepted such assignment on behalf of the Trust for the benefit of the Investor Certificateholders and any Enhancement Provider) in substantially the form of Exhibit B (the "Assignment") and shall have clearly indicated in its computer files that the Receivables created in connection with the Additional Accounts have been transferred to the Trust and the Transferor shall have delivered to the Trustee a computer file, microfiche or written list represented by the Transferor to contain a true and complete list of all Additional Accounts identified by account number and by Receivable balance in such Additional Accounts as of the Additional Account Cut-Off Date, which computer file, microfiche or written list shall be as of the date of such Assignment incorporated into and made a part of such Assignment and this Agreement;
(iii) The Transferor shall represent and warrant that (x) each Additional Account was, as of the Additional Account Cut-Off Date, an Eligible Account, (y) no selection procedures believed by the Transferor to be materially adverse to the interests of any outstanding Series of Investor Certificates or any Enhancement Provider were utilized in selecting the Additional Accounts from the available Eligible Accounts in the Transferor's portfolio; and (z) as of the Additional Account Closing Date, the Transferor is not insolvent and will not be made insolvent by the transfer of the Receivables of such Additional Accounts;
(iv) The Transferor shall represent and warrant that, as of the Additional Account Closing Date, the Assignment constitutes either (A) a valid transfer and assignment to the Trust of all right, title and interest of the Transferor in and to the Receivables then existing and thereafter created in the Additional Accounts, all monies due or to become due with respect thereto on and after the Additional Account Cut-Off Date, Recoveries and all proceeds of such Receivables (to the extent set forth in Section 9-306 of the UCC as in effect in the Relevant UCC State), and such Receivables and all proceeds thereof will be conveyed to the Trust free and clear of any Lien of any Person claiming through or under the Transferor or any of its Affiliates, except for (x) Liens permitted under Section 2.5(b) hereunder, (y) the interest of the holder of the Exchangeable Transferor Certificate or any other Class of Certificate held by the Transferor from time to time and (z) any right of the holder of the Exchangeable Transferor Certificate to receive interest accruing on, and investment earnings with respect to, the Collection Account and any other account or accounts maintained for the benefit of Certificateholders or any Enhancement Provider, if any, as provided in this Agreement and any Supplement, or (B) a grant of a security interest (as defined in the UCC as in effect in the Relevant UCC State) in such property to the Trustee on behalf of the Trust, which is enforceable with respect to then existing Receivables of the Additional Accounts, and the proceeds thereof (to the extent set forth in Section 9-306 of the UCC as in effect in the Relevant UCC State), upon the conveyance of such Receivables to the Trust, and which will be enforceable with respect to the Receivables thereafter created in respect of Additional Accounts, and the proceeds thereof (to the extent set forth in Section 9-306 of the UCC as in effect in the Relevant UCC State), upon such creation; and (C) if the Assignment constitutes the grant of a security interest to the Trust in such property, upon the filing of financing statements as described in Section 2.1 with respect to such Additional Accounts and in the case of such Receivables of Additional Accounts thereafter created and the proceeds thereof (to the extent set forth in Section 9-306 of the UCC in effect in the Relevant UCC State) upon such creation, the Trust shall have a first priority perfected security interest in such property, except for Liens permitted under Section 2.5(b) hereunder;
(v) The Transferor shall deliver to the Trustee (with a copy to the Rating Agencies), an Officer's Certificate confirming the items set forth in paragraphs (ii), (iii) and (iv) above and paragraph (vii) below. The Trustee may conclusively rely on such Officer's Certificate, shall have no duty to make inquiries with regard to the matters set forth therein and shall incur no liability in so relying;
(vi) The Transferor shall deliver to the Trustee and each Rating Agency, an Opinion of Counsel with respect to the Receivables in the Additional Accounts substantially in the form of Part One of Exhibit G;
(vii) The Transferor shall record and file financing statements with respect to the Receivables then existing and thereafter created in the Additional Accounts for the transfer of accounts, general intangibles and chattel paper (each as defined in the UCC in effect in the Relevant UCC State) meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the transfer and assignment of the Receivables in Additional Accounts by the Transferor to the Trust; and
(viii) The Rating Agencies shall have received from the Transferor five (5) Business Days' notice, in the case of Additional Accounts being added pursuant to Section 2.6(a), and ten (10) Business Days' notice, in the case of Additional Accounts being added pursuant to Section 2.6(b), of such proposed addition of Additional Accounts and, in the event that Additional Accounts are being added pursuant to Section 2.6(b), the Rating Agency Condition shall have been satisfied.
(i) The Transferor may from time to time, at its sole discretion, subject to and in compliance with the limitations and conditions specified below, (x) designate Eligible Accounts originated by a Seller (other than the initial Sellers) subsequent to its becoming an Eligible Originator to be included as Accounts as of the applicable Creation Date ("Automatic Additional Accounts"), and (y) may at any time discontinue or suspend designating Eligible Accounts to be included as Automatic Additional Accounts upon written notice to the Trustee. For purposes of this paragraph, Eligible Accounts shall be deemed to include only Eligible Accounts (x) of a type included as Accounts on the Initial Closing Date or any Additional Account Closing Date or consented to in writing by each Rating Agency and (y) not prohibited from being included as Accounts pursuant to the terms of any Supplement. The Transferor acknowledges and agrees with the Trustee, for the benefit of all Investor Certificateholders of all Series, that each Account originated or acquired by the Transferor on or after the Cut Off Date, shall be considered to be Automatic Additional Accounts constituting Accounts, each within the meaning of the Agreement, on and as of the applicable Creation Date of each such Account. The foregoing notwithstanding, Automatic Additional Accounts shall not include any Account acquired but not originated by any Eligible Originator and any Master Card or VISA credit cards, prior to the satisfaction of the Rating Agency Condition with respect thereto.
(ii) The Transferor shall not be permitted to designate Automatic Additional Accounts pursuant to clause (i) above with respect to any period of the three consecutive Monthly Periods commencing in January, April, July or October of a calendar year, commencing in October 1997, unless the Rating Agency Condition is otherwise satisfied, if the number of Automatic Additional Accounts designated during such period or during any period of twelve (12) consecutive Monthly Periods would exceed the applicable Aggregate Automatic Addition Limit.
(iii) The Transferor shall record and file financing statements with respect to the Receivables then existing and thereafter created in the Automatic Additional Accounts for the transfer of accounts, general intangibles and chattel paper (each as defined in the UCC in effect in the Relevant UCC State) meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the transfer and assignment of the Receivables in Automatic Additional Accounts by the Transferor to the Trust.the
Appears in 1 contract
Samples: Master Pooling and Servicing Agreement (Proffitts Credit Corp)
