Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient Eligible Accounts to be included as Additional Accounts as requested by Funding. (ii) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts. (b) On the Addition Date with respect to any designation of Additional Accounts, such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date: (i) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assets; (ii) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One shall have occurred nor shall the sale of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof; (iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition; (iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i)); (v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and (vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) above.
Appears in 3 contracts
Samples: Receivables Purchase Agreement, Receivables Purchase Agreement (Capital One Master Trust), Receivables Purchase Agreement
Addition of Accounts. (a) If (i) IfRFC III is required, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(aSection 2.09(a) of the Pooling and Servicing Agreement, to designate additional accounts to the Trust, or (Bii) elects to designate Additional Accounts RFC III elects, pursuant to Subsection 2.08(bSection 2.09(b) of the Pooling and Servicing Agreement, to designate additional accounts to the Trust, then in either case Funding mayRFC III, at its option, may give Capital One written notice thereof to Centurion; provided, however, that such notice shall be provided on or before the eighth (8th) Business Day prior to immediately preceding the Addition Date therefor, and upon related addition date. Upon receipt of such notice Capital One shall and on or before the Addition Dateprior to such addition date, Centurion shall designate sufficient Eligible Accounts as Aggregate Addition Accounts and shall sell to be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One mayRFC III the Purchased Assets related to such Aggregate Addition Accounts. In addition, at its option and with the consent of FundingRFC III, Centurion may designate newly originated Eligible Accounts as Aggregate Addition Accounts and sell to be included as Additional RFC III the Purchased Assets related to such Aggregate Addition Accounts.
(b) At its option and with the consent of RFC III, Centurion may designate Eligible Accounts as New Accounts and sell to RFC III the Purchased Assets related to such New Accounts. Centurion or RFC III, each at its option and by written notice to the other party at least ten (10) days in advance, may elect at any time to terminate the inclusion of new accounts which would otherwise be New Accounts as of any Business Day, to suspend any such inclusion as of any Business Day, or to resume any such inclusion as of any Business Day.
(c) On the Addition Date with respect to any designation of Additional Accounts, such Additional Accounts shall become Accounts, and Funding RFC III shall purchase Capital OneCenturion’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One as of the Addition Selection Date, such Additional Accounts shall be Eligible Accounts;
(ii) Centurion shall have delivered to Funding RFC III copies of UCC financing statements covering such Additional Accounts, if necessary to perfect FundingRFC III’s interest in the Receivables arising therein and the related Purchased Assets;
(iiiii) Centurion shall have delivered to RFC III all Collections with respect to such Additional Accounts since the Addition Cut-Off Date;
(iv) as of each of the Additional Addition Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One Centurion shall have occurred nor shall the sale of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding RFC III have been made in contemplation of the occurrence thereof;
(iiiv) Capital One in the case of Aggregate Addition Accounts, such addition will not have a material adverse effect on RFC III;
(vi) Centurion shall have delivered to Funding RFC III an Officer’s Certificate of Capital OneCenturion, dated the Addition Date, confirming, to the effect that extent applicable and in Centurion’s reasonable belief, the items set forth in clauses (Ai) Capital One reasonably believes that through (v) above;
(vii) in the case of New Accounts, such addition will not, based on the facts known to such officer at the time of such certification, then not cause a Pay Pay-Out Event or a Reinvestment Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the additionAgreement;
(ivviii) Capital One Centurion shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and RFC III and, in the case of Aggregate Addition Accounts, shall have delivered to Funding RFC III the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));Aggregate Addition Accounts; and
(vix) Capital One Centurion and Funding RFC III shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) above.
Appears in 3 contracts
Samples: Receivables Purchase Agreement (American Express Credit Account Master Trust), Receivables Purchase Agreement (American Express Credit Account Master Trust), Receivables Purchase Agreement
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated to designate All Accounts which meet the definition of Automatic Additional Accounts pursuant to Subsection 2.08(a) of which are Eligible Accounts shall be included as Accounts from and after the Pooling and Servicing Agreement, or (B) elects to designate date upon which such eligible Automatic Additional Accounts pursuant are created and all Receivables in such Automatic Additional Accounts, whether such Receivables are then existing or thereafter created, shall be transferred automatically to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding mayTrust upon origination by the Seller. The Seller, at its option, give Capital One may, by providing written notice thereof on or before the eighth Business Day prior to the Addition Date thereforTrustee and the Servicer, and upon receipt terminate or suspend the inclusion of Automatic Additional Accounts at any time. For all purposes of this Agreement, all receivables of such notice Capital One shall on or before the Addition Date, designate sufficient Eligible Accounts to be included as Automatic Additional Accounts shall be treated as requested by FundingReceivables upon their creation and shall be subject to the eligibility criteria specified in the definitions of "Eligible Receivable" and "Eligible Account.
(ii) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts."
(b) On any day Receivables in Automatic Additional Accounts are created, the Addition Date with respect Seller will be deemed to any designation of Additional Accounts, such have made the representations in Section 2.4. -----------
(c) Receivables in Automatic Additional Accounts shall become be transferred to the Trust, as Accounts if, in addition to satisfying the requirements of clauses ------- (a) through (g) of the definition of Eligible Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:--- --- are met: the number of Accounts the Receivables of which are designated to be added to the Trust pursuant to subsection 2.6(a) -----------------
(i) Capital One shall have delivered to Funding copies the opening of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in business on the Receivables arising therein and the related Purchased Assets;
(ii) as of each first day of the Additional Cut-Off Date and the Addition Dateeleventh preceding Monthly Period (or, no Insolvency Event with respect to Capital One shall have occurred nor shall the sale of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of any date on which eligible Automatic Additional Accounts are to be added to the Trust which occurs on or before May 31, 1994, the Cut-Off Date) minus the ----- number of Accounts of the type described in clauses (b) and (c) of the ----------- --- definition of "Automatic Additional Accounts" which have been added on the initial day of the addition of such type of Account pursuant to such clauses (b) ----------- and (c) since the opening of business on the first day of such eleventh --- preceding Monthly Period (or the Cut-Off Date, no selection procedure was utilized by Capital One that would result in a selection as the case may be) plus the ---- number of Additional Accounts (from Accounts, if any, the available Eligible Accounts owned by Capital One) that would Receivables of which have been designated to be materially adverse added to the interests Trust since the opening of Funding business on the first day of such eleventh preceding Monthly Period (or the Cut-Off Date, as the case may be) pursuant to subsection 2.6(e) minus any Removed Accounts removed since the ----------------- ----- opening of business on the first day of such eleventh preceding Monthly Period (or the Cut-Off Date, as the case may be) shall not exceed 15% of the date number of Accounts at the opening of business on the first day of such eleventh preceding Monthly Period (or the Cut-Off Date, as the case may be), and (ii) the opening of business on the first day of the addition;
second preceding Monthly Period (iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (or, in the case of any date on which eligible Automatic Additional Accounts designated pursuant are to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, be added to the extent applicableTrust which occurs on or before August 31, 1993, the items set forth Cut-Off Date) minus ----- the number of Accounts of the type described in clauses (b) and (c) of the ----------- --- definition of "Automatic Additional Accounts" have been added on the initial day of the addition of such type of Account pursuant to such clauses (b) and (c) ----------- --- since the opening of business on the first day of such second preceding Monthly Period (or the Cut-Off Date, as the case may be) plus the number of Accounts, if ---- any, the Receivables of which have been designated to be added to the Trust since the opening of business on the first day of such second preceding Monthly Period (or the Cut-Off Date, as the case may be) pursuant to subsection 2.6(e) ----------------- minus any Removed Accounts removed since the first day of such second preceding ----- Monthly Period (or the Cut-Off Date, as the case may be) shall not exceed 10% of the number of Accounts at the opening of business on the first day of such second preceding Monthly Period (or the Cut-Off Date, as the case may be).
(d) The Seller shall provide to the Trustee on each Determination Date, a list of Automatic Additional Accounts, identified by account number, added during the preceding Monthly Period.
(e) If (i) through on any Transfer Date the Seller Interest as of the last day of the related Monthly Period (vafter giving effect to any deposits, withdrawals or payments to be made on the following Distribution Date), is less than the Minimum Seller Interest, the Seller shall designate additional credit card accounts ("Additional Accounts") above.to be included as Accounts in a -------------------
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Peoples Bank), Pooling and Servicing Agreement (Peoples Bank Credit Card Master Trust), Pooling and Servicing Agreement (Peoples Bank Credit Card Master Trust)
Addition of Accounts. (a) (i) If, as of the close of business on the last day of any Monthly Period, the Transferor Interest is less than the Minimum Transferor Interest, or the Pool Balance is less than the Minimum Aggregate Principal Receivables (less any amounts in the Excess Funding Account), then the Transferor shall, within 5 Business Days following the end of such Monthly Period, designate and transfer to the Trust the Receivables (and the related Collateral Security) of additional Eligible Accounts of the Transferor to be included as Accounts in a sufficient amount such 2-12
(b) The Transferor may from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its optionsole discretion, give Capital One written notice thereof on or before the eighth Business Day prior subject to the Addition Date thereforconditions specified in paragraph (d) below, and upon receipt of such notice Capital One shall on or before the Addition Date, voluntarily designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Funding.
and transfer to the Trust the Receivables (iiand the related Collateral Security) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as such Additional Accounts.
(bc) On the Addition Date with respect to any designation of Additional Accounts, Receivables and Collateral Security from such Additional Accounts shall become Accountsbe sold to the Trust effective on a date (each an "Addition Date") specified in a written notice provided by the Transferor (or the Servicer on its behalf) to the Trustee, the Rating Agencies, any Agent and Funding shall purchase Capital One’s right, title any Enhancement Providers specifying the Additional Cut-off Date and interest in, to and under the Receivables in Addition Date for such Additional Accounts and (each an "Addition Notice") on or before the fifth Business Day but not more than the 30th day prior to the related Purchased Assets as provided Addition Date or, if the Automatic Addition Condition is satisfied, on the Determination Date following the Monthly Period in Section 2.01, subject which such Addition Dates occur (the "Notice Date"). An Addition Notice may relate to one or more Accounts added on one or more Addition Dates.
(d) The Transferor shall be permitted to convey to the Trust the Receivables and all Collateral Security related thereto in any Additional Accounts designated by the Transferor as such pursuant to Section 2.6(a) or (b) only upon satisfaction of each of the following conditions on or prior to the related Notice Date (except for the condition in clause (vii), if applicable, which shall be satisfied on or before the tenth Business Day after such Addition Notice Date:):
(i) Capital One the Transferor shall have provided the Trustee, any Agent, the Rating Agencies and any Enhancement Providers with a timely Addition Notice ;
(ii) such Additional Accounts shall all be Eligible Accounts;
(iii) the Transferor shall have delivered to Funding copies the Trustee a duly executed written assignment (including an acceptance by the Trustee) in substantially the form of UCC financing statements Exhibit G (the "Assignment") covering the Receivables in the Accounts specified in the Addition Notice and the computer file or microfiche or written list required to be delivered pursuant to Section 2.1;
(iv) the Transferor shall, to the extent required by Section 4.3, have deposited in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut-off Date;
(v) (A) no selection procedures reasonably believed by the Transferor to be adverse to the interests of the Beneficiaries shall have been used in selecting such Additional Accounts, if necessary ; (B) the list of Additional Accounts delivered pursuant to perfect Funding’s interest clause (iii) above shall be true and correct in all material respects as of the Receivables arising therein Additional Cut-off Date and the related Purchased Assets;
(iiC) as of each of the Additional Cut-Off Notice Date and the Addition Date, no Insolvency Event neither Green Tree nor the Transferor shall have been insolvent nor shall any of them have been made insolvent by such transfer nor shall any of them be aware of any pending insolvency;
(vi) if the Automatic Addition Condition is not satisfied with respect to Capital One such addition, the Rating Agency Condition shall have occurred nor been satisfied with respect to such addition;
(vii) If (A) one or more of the Additional Accounts specified in such Addition Notice will contain Receivables secured by a security interest in a type of Product that has not been previously financed in the Floorplan Business or (B) one or more of the Additional Accounts is supported by a Floorplan Agreement with a Manufacturer that, as of the related Addition Date, is not an Existing Manufacturer, then, whether or not the Automatic Condition is satisfied, the Rating Agency Condition shall have been satisfied in respect of the sale addition of each Additional Account specified in clauses (A) and (B) on or prior to the related Addition Date;
(viii) the addition of the Receivables arising in the such Additional Accounts and the related Purchased Assets to Funding have been made shall not result in contemplation of the occurrence thereofof a Pay Out Event;
(iiiix) Capital One the Transferor shall have delivered to Funding an Officer’s Certificate the Trustee, each Rating Agency and any Enhancement Providers a certificate of Capital One, dated the Addition Date, to the effect that a Vice President or more senior officer confirming (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement items set forth in paragraphs (ii) through (viii) above and (B) in that the case of Additional Accounts, no selection procedure was utilized by Capital One Transferor reasonably believes that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as addition of the date of the addition;
(iv) Capital One shall have indicated Receivables arising in its computer files that Receivables created in connection with such Additional Accounts will not result in the occurrence of a Pay Out Event; and (x) on or before each Notice Date, the related Purchased Assets have been sold to Funding and Transferor shall have delivered to Funding the Account Schedule Trustee, each Rating Agency and any Enhancement Providers (A) an Opinion of Counsel with respect to such the Receivables in the Additional Accounts (in added since the case last delivery of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, such opinion substantially in the form of Exhibit A E-3 and (B) except in the “Supplemental Conveyance”case of an addition required by Section 2.6(a), a Tax Opinion with respect to such addition; andprovided, -------- however, that if (x) the Automatic Addition Condition is satisfied with ------- respect to such addition and (y) Green Tree's senior unsecured long-term debt is then rated "A-" or higher by Standard & Poor's and "Baa1" or higher by Moody's, such Opinion of Counsel and Tax Opinion will be required to be delivered no more frequently than semi-annually.
(vie) Capital One shall have delivered to Funding an Officer’s Certificate The Transferor hereby represents and warrants as of Capital One, dated the applicable Addition Date, confirming, Date as to the extent applicable, the items matters set forth in clauses (i) through (v) above.Section 2.6(d)(v). Upon discovery by the Transferor, the Servicer, any Agent, a Responsible Officer of the Trustee or any 2-14
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Greentree Floorplan Funding Corp), Pooling and Servicing Agreement (Greentree Floorplan Funding Corp)
Addition of Accounts. (a) If, as of the close of business on the last day of any Collection Period, (i) Ifthe Pool Balance on such day is less than the Required Participation Amount as of the following Distribution Date (after giving effect to the allocations, distributions, withdrawals and deposits to be made on such Distribution Date), or (ii) the result obtained by multiplying (x) the Seller's Participation Amount as of the following Distribution Date (after giving effect to the allocations, distributions, withdrawals and deposits to be made on such Distribution Date), by (y) the percentage equivalent of the portion of the Seller's Interest represented by the CARCO Certificate, is less than 2% of the Pool Balance on such last day, then the Seller shall, within 10 Business Days following the end of such Collection Period, designate and transfer to the Trust the Receivables (and the related Collateral Security) of additional Eligible Accounts of the Seller to be included as Accounts in a sufficient amount such that after giving effect to such addition (i) the Pool Balance as of the close of business on the Addition Date is at least equal to such Required Participation Amount or (ii) the result obtained by multiplying (x) such Seller's Participation Amount by (y) the percentage equivalent of the portion of the Seller's Interest represented by the CARCO Certificate, is at least equal to 2% of such Pool Balance, as the case may be. The Seller shall satisfy the conditions specified in Section 2.05(d) in designating such Additional Accounts and conveying the related Receivables to the Trust. The failure of the Seller to transfer Receivables to the Trust as provided in this paragraph solely as a result of the unavailability of a sufficient amount of Eligible Receivables shall not constitute a breach of this Agreement; provided, however, that any such failure will nevertheless result in the occurrence of an Early Amortization Event described in Section 9.01(a).
(b) The Seller may from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its optionsole discretion, give Capital One written notice thereof on or before the eighth Business Day prior subject to the Addition Date thereforconditions specified in paragraph (d) below, and upon receipt of such notice Capital One shall on or before the Addition Date, voluntarily designate sufficient additional Eligible Accounts (including Partial Accounts) to be included as Additional Accounts as requested by Funding.
and transfer to the Trust the Receivables (iiand the related Collateral Security) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as such Additional Accounts.
(bc) On the Addition Date with respect to any designation of Additional Accounts, Receivables and Collateral Security from such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject be sold to the satisfaction of Trust effective on a date (the following conditions on such "Addition Date:
") specified in a written notice provided by the Seller (ior the Servicer on its behalf) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accountsthe Trustee, if necessary to perfect Funding’s interest in the Receivables arising therein Rating Agencies, any Agent and the related Purchased Assets;
(ii) as of each of any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date (the "Notice Date, no Insolvency Event with respect "). The Addition Notice shall also specify whether any such Additional Accounts are Partial Accounts.
(d) The Seller shall be permitted to Capital One convey to the Trust the Receivables and all Collateral Security related thereto in any Additional Accounts designated by the Seller as such pursuant to Section 2.05(a) or (b) only upon satisfaction of each of the following conditions on or prior to the related Addition Date:
(i) the Seller shall have occurred nor shall provided the sale of Trustee, any Agent, the Receivables arising in the Rating Agencies and any Enhancement Providers with a timely Addition Notice;
(ii) such Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereofshall all be Eligible Accounts;
(iii) Capital One the Seller shall have delivered to Funding the Trustee a duly executed written assignment (including an Officer’s Certificate of Capital One, dated acceptance by the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (BTrustee) in substantially the case form of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts Exhibit B (from the available Eligible Accounts owned by Capital One"Assignment") that would and the computer file or microfiche or written list required to be materially adverse delivered pursuant to the interests of Funding as of the date of the additionSection 2.01;
(iv) Capital One shall the Seller shall, to the extent required by Section 4.03, have indicated deposited in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Collection Account Schedule all Collections with respect to such Additional Accounts (in since the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i))Cut-Off Date;
(v) Capital One (A) no selection procedures believed by the Seller to be adverse to the interests of the Beneficiaries were used in selecting such Additional Accounts; (B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and Funding correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, neither CFC, CCC, nor the Seller were insolvent nor will any of them have been made insolvent by such transfer nor are any of them aware of any pending insolvency;
(vi) the Rating Agency Condition shall have entered into been satisfied with respect to such addition;
(vii) the addition of the Receivables arising in such Additional Accounts shall not result in the occurrence of an Early Amortization Event;
(viii) the Seller shall have delivered to the Trustee and any Enhancement Providers a duly executedcertificate of a Vice President or more senior officer confirming (A) the items set forth in paragraphs (ii) through (vii) above and (B) that the Seller reasonably believes that the addition of the Receivables arising in such Additional Accounts will not result in the occurrence of an Early Amortization Event; and
(ix) on or before each Addition Date, written assignment, the Seller shall have delivered to the Trustee and any Enhancement Providers (A) an Opinion of Counsel with respect to the Receivables in the Additional Accounts substantially in the form of Exhibit A G-2 and (B) except in the “Supplemental Conveyance”case of an addition required by Section 2.05(a); and, a Tax Opinion with respect to such addition.
(vie) Capital One shall have delivered to Funding an Officer’s Certificate The Seller hereby represents and warrants as of Capital One, dated the applicable Addition Date, confirming, Date as to the extent applicable, the items matters set forth in clauses (i) through (v) aboveSection 2.05(d)(v). Upon discovery by the Seller, the Servicer, any Agent, the Trustee or any Enhancement Providers of a breach of the foregoing representations and warranties, the party discovering the breach shall give prompt written notice to the other parties, to any Agent and to any Enhancement Providers.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Carco Auto Loan Master Trust), Pooling and Servicing Agreement (Daimlerchrysler Wholesale Receivables LLC)
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 (i"Additional Accounts") Iffrom 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 timetime designate Additional Accounts or Participations to be included as Trust Assets, Funding 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) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) 15% of the Pooling and Servicing Agreementaggregate number of Accounts determined as of the first day of the third Monthly Period prior to the applicable Addition Date (or, or if later, as of the Initial Closing Date) over (B) elects to designate the aggregate number of Automatic Additional Accounts pursuant to Subsection 2.08(bthe 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 Pooling and Servicing Agreementaggregate number of Accounts determined as of the first day of the calendar year in which the Addition Date occurs (or, then in either case Funding mayif later, at its optionas 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, give Capital One written notice thereof 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 eighth fifth Business Day prior to the Addition Date thereforwith 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 upon receipt Servicer written notice that such Additional Accounts or Participations will be included, which notice shall specify the approximate aggregate amount of such notice Capital One shall the Receivables or Participations to be transferred;
(ii) on or before the Addition Date, designate sufficient Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One Transferor shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assets;
Trustee a written assignment (ii) as of each including an acceptance by Trustee on behalf of the Additional Cut-Off Date and Trust for the Addition Date, no Insolvency Event with respect to Capital One shall have occurred nor shall the sale benefit of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (BInvestor Holders) in substantially the case form of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts Exhibit A (from the available Eligible Accounts owned by Capital One"Assignment") that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One and Transferor shall have indicated in its computer files that the Receivables created in connection with such the Additional Accounts and the related Purchased Assets have been sold transferred to Funding and the Trust and, within ten Business Days thereafter, Transferor shall have delivered to Funding the 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), and (ii) the Transferor Interest 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 designated pursuant 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 Subsection 2.02(a)(iSection 9-306 of the UCC as in effect in the State of Louisiana), except for Liens permitted under subsection 2.5(b);
(v) Capital One and Funding Transferor shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered deliver to Funding Trustee an Officer’s 's Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, confirming the items set forth in clauses (iii) through (viv);
(vi) aboveTransferor 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 D; 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.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (First National Bank of Commerce), Pooling and Servicing Agreement (First National Bank of Commerce)
Addition of Accounts. (a) If, as of the close of business on the last day of any Collection Period, (i) Ifthe Pool Balance on such day is less than the Required Participation Amount as of the following Payment Date (after giving effect to the allocations, distributions, withdrawals and deposits to be made on such Payment Date), or (ii) the result obtained by multiplying (x) the Seller's Participation Amount as of the following Payment Date (after giving effect to the allocations, distributions, withdrawals and deposits to be made on such Payment Date), by (y) the percentage equivalent of the portion of the Seller's Interest represented by the DCMOT Certificate, is less than 2% of the Pool Balance on such last day, then the Seller shall, within ten Business Days following the end of such Collection Period, designate and transfer to the Trust the Receivables (and the related Collateral Security) of additional Eligible Accounts of the Seller to be included as Accounts in a sufficient amount such that after giving effect to such addition (i) the Pool Balance as of the close of business on the Addition Date is at least equal to such Required Participation Amount or (ii) the result obtained by multiplying (x) such Seller's Participation Amount by (y) the percentage equivalent of the portion of the Seller's Interest represented by the DCMOT Certificate, is at least equal to 2% of such Pool Balance, as the case may be. The Seller shall satisfy the conditions specified in Section 2.05(d) in designating such Additional Accounts and conveying the related Receivables to the Trust. The failure of the Seller to transfer Receivables to the Trust as provided in this paragraph solely as a result of the unavailability of a sufficient amount of Eligible Receivables shall not constitute a breach of this Agreement; provided, however, that any such failure will nevertheless result in the occurrence of an Early Redemption Event described in each Indenture Supplement, unless otherwise specified therein with respect to the related Series or Class.
(b) The Seller may from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its optionsole discretion, give Capital One written notice thereof on or before the eighth Business Day prior subject to the Addition Date thereforconditions specified in paragraph (d) below, and upon receipt of such notice Capital One shall on or before the Addition Date, voluntarily designate sufficient additional Eligible Accounts (including Partial Accounts) to be included as Additional Accounts as requested by Funding.
and transfer to the Trust the Receivables (iiand the related Collateral Security) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as such Additional Accounts.
(c) Receivables and Collateral Security from such Additional Accounts shall be sold to the Trust effective on a date (the "Addition Date") specified in a written notice provided by the Seller (or the Servicer on its behalf) to the Trust, the Trustee, the Rating Agencies, any Agent and any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date (the "Notice Date"). The Addition Notice shall also specify whether any such Additional Accounts are Partial Accounts.
(d) The Seller shall be permitted to convey to the Trust the Receivables and all Collateral Security related thereto in any Additional Accounts designated by the Seller as such pursuant to Section 2.05(a) or (b) only upon satisfaction of each of the following conditions on or prior to the related Addition Date:
(i) the Seller shall have provided the Trust, the Trustee, any Agent, the Rating Agencies and any Enhancement Providers with a timely Addition Notice;
(ii) such Additional Accounts shall all be Eligible Accounts;
(iii) the Seller shall have delivered to the Trust and the Trustee a duly executed written assignment (which shall be acknowledged and accepted by the Trustee) in substantially the form of Exhibit B (the "Assignment") and the computer file or microfiche or written list required to be delivered pursuant to Section 2.01;
(iv) the Seller shall, to the extent required by Section 4.03, have deposited in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut-Off Date;
(v) (A) no selection procedures believed by the Seller to be adverse to the interests of the Trust, the Noteholders or any Enhancement Providers were used in selecting such Additional Accounts; (B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, the Seller was neither insolvent nor will be made insolvent by such transfer, and the Seller is not aware of any pending insolvency;
(vi) the Rating Agency Condition shall have been satisfied with respect to such addition;
(vii) the addition of the Receivables arising in such Additional Accounts shall not result in the occurrence of an Early Redemption Event;
(viii) the Seller shall have delivered to the Trust, the Trustee and any Enhancement Providers a certificate of a Vice President or more senior officer confirming (A) the items set forth in paragraphs (ii) through (vii) above and (B) that the Seller reasonably believes that the addition of the Receivables arising in such Additional Accounts will not result in the occurrence of an Early Redemption Event; and
(ix) on or before each Addition Date, the Seller shall have delivered to the Trust, the Trustee and any Enhancement Providers (A) an Opinion of Counsel with respect to the Receivables in the Additional Accounts substantially in the form of Exhibit
(e) The Seller hereby represents and warrants as of the applicable Addition Date as to the matters set forth in Section 2.05(d)(v). Upon discovery by the Seller, the Servicer, the Trust, the Owner Trustee, any Agent or the Trustee of a breach of the foregoing representations and warranties, the party discovering the breach shall give prompt written notice to the other parties specified above, and to any Enhancement Providers.
(f) Unless otherwise agreed to by the Rating Agencies, notwithstanding anything to the contrary in this Agreement, the Seller may from time to time, at its discretion, and subject only to the limitations specified in this paragraph, designate Additional Accounts to be added to the Trust. (Additional Accounts designated to be added to the Trust in accordance with the provisions of this Section 2.05(f) are referred to herein as "Automatic Additional Accounts".) On the Addition Date with respect to any designation of Automatic Additional Accounts, such Additional Accounts shall become Accounts, and Funding the Trust shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Automatic Additional Accounts (and such Automatic Additional Accounts shall be deemed to be Accounts for purposes of this Agreement) as of the related Purchased Assets as provided in Section 2.01close of business on the applicable Additional Cut-Off Date, subject to the satisfaction of the following conditions on such Addition Dateconditions:
(i) Capital One such Automatic Additional Accounts shall have delivered to Funding copies of UCC financing statements covering such Additional be Eligible Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assets;
(ii) the Seller shall, to the extent required by Section 4.03, have deposited in the Collection Account all Collections with respect to such Automatic Additional Accounts since the Additional Cut-Off Date;
(iii) no selection procedures believed by the Seller to be adverse to the interests of the Trust, the Noteholders or any Enhancement Providers were used in selecting such Automatic Additional Accounts;
(iv) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One DCS or the Seller shall have occurred nor shall the sale transfer of the Receivables arising in the Automatic Additional Accounts and to the related Purchased Assets to Funding Trust have been made in contemplation of the occurrence thereof;
(iiiv) Capital One the addition of the Receivables arising in the Automatic Additional Accounts shall have delivered to Funding not cause an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Early Redemption Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time time, would constitute a Pay Out an Early Redemption Event under to occur with respect to any Series;
(vi) on or before each Addition Date with respect to Automatic Additional Accounts, the Pooling Seller shall have delivered to the Trust, the Trustee and Servicing the Rating Agencies (A) an Opinion of Counsel with respect to the Receivables in the Automatic Additional Accounts substantially in the form of Exhibit G-2 to this Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse Tax Opinion with respect to the interests of Funding as of the date of the such addition;
(ivvii) Capital One shall have indicated in its computer files that within ten Business Days of the date on which any such Receivables created in connection with such Additional Accounts and are added to the related Purchased Assets have been sold to Funding and Trust, the Seller shall have delivered to Funding the Trust and the
Trustee a written assignment and a computer file or a microfiche list containing a true and complete list of the related Automatic Additional Accounts specifying for each such Account Schedule its account number, the collection status, the aggregate amount outstanding in such Account and the aggregate amount of Principal Receivables outstanding in such Account; and
(viii) the Seller shall have delivered to the Trust and the Trustee an Officers' Certificate of the Seller, dated the Addition Date, to the effect that conditions (i) through (v) and (vii) above have been satisfied. The Seller hereby represents and warrants to the Trust as of the related Addition Date as to the matters relating to it set forth in paragraphs (iii) and (iv) above and that the file or list described below is, as of the applicable Additional Cut-Off Date, true and complete in all material respects. In connection with the designation of Automatic Additional Accounts to be added to the Trust, the Seller shall deliver to the Trust and the Trustee (i) the computer file or microfiche list required to be delivered pursuant to Section 2.01 with respect to such Automatic Additional Accounts and (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(vii) Capital One and Funding shall have entered into a duly executed, executed written assignmentAssignment (which shall be acknowledged and accepted by the Trustee), substantially in the form of Exhibit A (B to this Agreement. Unless each Rating Agency otherwise consents, the “Supplemental Conveyance”); and
(vi) Capital One number of Automatic Additional Accounts added to the Trust with respect to any of the three consecutive Collection Periods beginning in January, April, July and October of each calendar year shall not exceed 8% of the number of Accounts as of the first day of the calendar year during which such Collection Periods commence and the number of Automatic Additional Accounts designated during any such calendar year shall not exceed 20% of the number of Accounts as of the first day of such calendar year. On or before the first business day of each Collection Period beginning in January, April, July and October of each calendar year, the Seller shall have delivered to Funding an Officer’s Certificate requested and obtained notification from each Rating Agency of Capital One, dated the Addition Date, confirming, any limitations to the right of the Seller to designate Eligible Accounts as Automatic Additional Accounts during any period which includes such Collection Period. To the extent applicablethat Automatic Additional Accounts have been added to the Trust during the three consecutive Collection Periods ending in the calendar month prior to such date, on or before January 31, April 30, July 31, October 31 of each calendar year, the items set forth Trustee shall have received confirmation from each Rating Agency that the addition of all Automatic Additional Accounts included as Accounts during the three consecutive Collection Periods ending in clauses (i) through (v) abovethe calendar month prior to such date shall not have resulted in any applicable Rating Agency reducing or withdrawing its rating of any outstanding Series or Class of Notes. If such Rating Agency confirmation with respect to any Automatic Additional Accounts is not so received, such Automatic Additional Accounts will be removed from the Trust.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Daimlerchrysler Master Owner Trust), Sale and Servicing Agreement (Daimlerchrysler Master Owner Trust)
Addition of Accounts. (a) If (i) IfRFC IV is required, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(aSection 2.09(a) of the Pooling and Servicing Agreement, to designate additional accounts to the Trust, or (Bii) elects to designate Additional Accounts RFC IV elects, pursuant to Subsection 2.08(bSection 2.09(b) of the Pooling and Servicing Agreement, to designate additional accounts to the Trust, then in either case Funding mayRFC IV, at its option, may give Capital One written notice thereof to FSB; provided, however, that such notice shall be provided on or before the eighth (8th) Business Day prior to immediately preceding the Addition Date therefor, and upon related addition date. Upon receipt of such notice Capital One shall and on or before the Addition Dateprior to such addition date, FSB shall designate sufficient Eligible Accounts as Aggregate Addition Accounts and shall sell to be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One mayRFC IV the Purchased Assets related to such Aggregate Addition Accounts. In addition, at its option and with the consent of FundingRFC IV, FSB may designate newly originated Eligible Accounts as Aggregate Addition Accounts and sell to be included as Additional RFC IV the Purchased Assets related to such Aggregate Addition Accounts.
(b) At its option and with the consent of RFC IV, FSB may designate Eligible Accounts as New Accounts and sell to RFC IV the Purchased Assets related to such New Accounts. FSB or RFC IV, each at its option and by written notice to the other party at least ten (10) days in advance, may elect at any time to terminate the inclusion of new accounts which would otherwise be New Accounts as of any Business Day, to suspend any such inclusion as of any Business Day, or to resume any such inclusion as of any Business Day.
(c) On the Addition Date with respect to any designation of Additional Accounts, such Additional Accounts shall become Accounts, and Funding RFC IV shall purchase Capital One’s FSB's right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One as of the Addition Selection Date, such Additional Accounts shall be Eligible Accounts;
(ii) FSB shall have delivered to Funding RFC IV copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s RFC IV's interest in the Receivables arising therein and the related Purchased Assets;
(iiiii) FSB shall have delivered to RFC IV all Collections with respect to such Additional Accounts since the Addition Cut-Off Date;
(iv) as of each of the Additional Addition Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One FSB shall have occurred nor shall the sale of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding RFC IV have been made in contemplation of the occurrence thereof;
(iiiv) Capital One in the case of Aggregate Addition Accounts, such addition will not have a material adverse effect on RFC IV;
(vi) FSB shall have delivered to Funding RFC IV an Officer’s 's Certificate of Capital OneFSB, dated the Addition Date, confirming, to the effect that extent applicable and in FSB's reasonable belief, the items set forth in clauses (Ai) Capital One reasonably believes that through (v) above;
(vii) in the case of New Accounts, such addition will not, based on the facts known to such officer at the time of such certification, then not cause a Pay Pay-Out Event or a Reinvestment Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the additionAgreement;
(ivviii) Capital One FSB shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and RFC IV and, in the case of Aggregate Addition Accounts, shall have delivered to Funding RFC IV the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));Aggregate Addition Accounts; and
(vix) Capital One FSB and Funding RFC IV shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “"Supplemental Conveyance”"); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) above.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (American Express Credit Account Master Trust), Receivables Purchase Agreement (American Express Credit Account Master Trust)
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) as of the Pooling and Servicing Agreementend of any Monthly Period, the Transferor Interest is less than the Minimum Transferor Interest for that period the Transferor shall designate additional eligible MasterCard or VISA accounts from the Bank Portfolio ("Additional Accounts") to be included as Accounts in a sufficient amount such that the Transferor Interest after giving effect to such addition will be at least equal to the Minimum Transferor Interest, or (B) elects as of the end of any Monthly Period, the sum of the aggregate amount of Principal Receivables is less than the Minimum Aggregate Principal Receivables (as adjusted for any Series having a Companion Series as described in the Supplement for such Series), the Transferor shall designate Additional Accounts to designate be included as Accounts in a sufficient amount such that the aggregate amount of Principal Receivables will be equal to or greater than the Minimum Aggregate Principal Receivables. Receivables from such Additional Accounts shall be transferred to the Trust on or before the tenth Business Day following the end of such Monthly Period.
(ii) In lieu of, or in addition to, designating Additional Accounts pursuant to Subsection 2.08(bclause (i) above, the Transferor may, subject to the conditions specified in paragraph (c) below, convey to the Trust participations representing undivided interests in a pool of assets primarily consisting of receivables arising under revolving credit card accounts or other revolving credit accounts owned by the Transferor or any Affiliate of any Transferor and collections thereon ("Participations"). -------------- The addition of Participations in the Trust pursuant to this paragraph (a) or paragraph (b) below shall be effected by an amendment hereto, dated the applicable Addition Date, pursuant to Section 13.1(a).
(b) In addition to its obligation under subsection 2.6(a), the Transferor may, but shall not be obligated to, designate from time to time Additional Accounts of the Pooling and Servicing AgreementTransferor to be included as Accounts or Participations to be included as Trust Assets, then in either case Funding mayas of the applicable Addition Date.
(c) The Transferor agrees that any such transfer of Receivables from Additional Accounts, at its option, give Capital One written notice thereof on under subsection 2.6(a) or (b) shall satisfy the following conditions (to the extent provided below):
(i) On or before the eighth fifth Business Day prior to the Addition Date thereforwith 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"), the Transferor ----------- shall give the Trustee, each Rating Agency and upon receipt the Servicer written notice that such Additional Accounts or Participations will be included, which notice shall specify the approximate aggregate amount of such notice Capital One shall on the Receivables to be transferred.
(ii) On or before the Addition Date, designate sufficient Eligible Accounts the Transferor shall have delivered to be included as the Trustee a written assignment (including an acceptance by the Trustee on behalf of the Trust for the benefit of the Investor Certificateholders) in substantially the form of Exhibit B (the "Assignment") and the 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 five Business Days thereafter, or as requested by Funding.
(ii) Additionallyotherwise agreed upon between the Transferor and the Trustee, Capital One may, at its option the Transferor shall have delivered to the Trustee a computer file or microfiche list containing a true and with the consent complete list of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of all Additional Accounts, such Additional Accounts shall become Accounts, adequately identified by billing cycle and/or account number and Funding shall purchase Capital One’s right, title and interest in, to and under the aggregate amount of the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One which computer file or microfiche list shall have occurred nor shall the sale be as of the Receivables arising in the Additional Accounts date of such Assignment incorporated into and the related Purchased Assets to Funding have been made in contemplation a part of the occurrence thereof;such Assignment and this Agreement.
(iii) Capital One The Transferor shall have delivered to Funding an Officer’s Certificate represent and warrant that (x) each Additional Account is, as of Capital One, dated the Addition Date, to an Eligible Account, and each Receivable in such Additional Account is, as of the effect that Addition Date, an Eligible Receivable, (Ay) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized procedures believed by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would Transferor to be materially adverse to the interests of Funding the Investor Certificateholders were utilized in selecting the Additional Accounts from the available Eligible Accounts from the Bank Portfolio, and (z) as of the date of Addition Date, the addition;Transferor is not insolvent.
(iv) Capital One The Transferor shall have indicated represent and warrant that, as of the Addition Date, the Assignment constitutes either (x) a valid transfer and assignment to the Trust of all right, title and interest of the Transferor in its computer files that and to the Receivables then existing and thereafter created in connection the Additional Accounts, and all proceeds (as defined in the UCC) of such Receivables and Insurance Proceeds relating thereto and such Receivables and all proceeds thereof and Insurance Proceeds relating thereto will be held by the Trust free and clear of any Lien of any Person claiming through or under the Transferor or any of its Affiliates, except for (i) Liens permitted under subsection 2.5(b), (ii) the interest of the Transferor as Holder of the Transferor Certificate and (iii) the Transferor's right to receive interest accruing on, and investment earnings in respect of, the Finance Charge Account and the Principal Account, or any Series Account as provided in this Agreement and any related Supplement or (y) a grant of a security interest (as defined in the UCC), in such property to the Trust, which is enforceable with respect to then existing Receivables of the Additional Accounts, the proceeds (as defined in the UCC), thereof and Insurance Proceeds 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 (as defined in the UCC), thereof and Insurance Proceeds relating thereto upon such creation; and (z) if the related Purchased Assets have been sold Assignment constitutes the grant of a security interest to Funding and shall have delivered to Funding the Account Schedule Trust in such property, upon the filing of a financing statement 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 designated pursuant and the proceeds (as defined in the UCC), thereof, and Insurance Proceeds relating thereto, upon such creation, the Trust shall have a first priority perfected security interest in such property (subject to Subsection 2.02(a)(iSection 9-306 of the UCC), except for Liens permitted under subsection 2.5(b);.
(v) Capital One and Funding The Transferor shall have entered into a duly executed, written assignment, deliver an Officer's Certificate substantially in the form of Schedule 2 to Exhibit B to the Trustee confirming the items set forth in paragraph (iii) above.
(vi) The Transferor shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to the Trustee substantially in the form of Exhibit A (the “Supplemental Conveyance”); andE.
(vivii) Capital One the Rating Agency Condition shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, been satisfied with respect to the extent applicableinclusion of such accounts as Additional Accounts pursuant to subsection 2.6(b).
(viii) With respect to a Participation included as Trust Assets pursuant to subsection 2.6(b), the items set forth in clauses (i) through (v) aboveTransferor shall deliver a Tax Opinion.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Chase Manhattan Bank Usa), Pooling and Servicing Agreement (Chase Manhattan Bank Usa)
Addition of Accounts. (a) By a written assignment supplementing this Agreement (except in the case of Additional Accounts listed on the Account Schedule delivered on or prior to the Amendment Closing Date), the Transferor in its sole discretion may designate Additional Accounts for automatic inclusion in the Trust, and all Receivables in such Additional Accounts, whether such Receivables are then existing or thereafter created, shall be transferred automatically to the Trustee pursuant to Section 2.1 and such assignment.
(b) Notwithstanding the foregoing, the Transferor may elect at any time, or may be required pursuant to subsection 2.6(g), to suspend the automatic inclusion of Additional Accounts on any Business Day (the “Automatic Addition Suspension Date”), or terminate any such inclusion on any Business Day (an “Automatic Addition Termination Date”) until a date (the “Restart Date”) to be identified in writing by the Transferor to the Trustee, the Servicer and each Rating Agency at least 10 days prior to such Restart Date. Promptly after an Automatic Addition Suspension Date or any Automatic Addition Termination Date, or a Restart Date, the Transferor and the Trustee agree to authorize and the Transferor agrees to record and file at its own expense an amendment to the financing statements referred to in Section 2.1 hereof (if necessary) to specify the accounts then subject to this Agreement (which specification may incorporate a list of accounts by reference) and may, except in connection with any such filing made after a Restart Date, release any security interest in any accounts created after the Automatic Addition Suspension Date or any Automatic Addition Termination Date.
(c) If the Transferor has elected to terminate or suspend the inclusion of Additional Accounts and (i) Ifon the tenth Business Day prior to any Determination Date, from time the Transferor Interest for the related Monthly Period is less than the Minimum Transferor Interest, the Transferor shall designate Supplemental Accounts to time, Funding (A) becomes obligated to designate Additional be included as Accounts pursuant to Subsection 2.08(a) in a sufficient amount such that the Transferor Interest as a percentage of the Pooling and Servicing AgreementAggregate Principal Receivables for such Monthly Period after giving effect to such addition is at least equal to the Minimum Transferor Interest, or (B) elects on any Record Date, the Aggregate Principal Receivables is less than the Minimum Aggregate Principal Receivables, the Transferor shall designate Supplemental Accounts to designate Additional be included as Accounts pursuant in a sufficient amount such that the Aggregate Principal Receivables will be equal to Subsection 2.08(b) of or greater than the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof Minimum Aggregate Principal Receivables. Receivables from such Supplemental Accounts shall be transferred to the Trust on or before the eighth tenth Business Day following such Record Date.
(d) In addition to its obligation under subsection 2.6(c), the Transferor may, but shall not be obligated to, subject to the conditions specified under subsection 2.6(e), designate from time to time Supplemental Accounts to be included as Accounts.
(e) Unless otherwise specified in a Series Supplement, the Transferor agrees that any such transfer of Receivables in Supplemental Accounts, under subsection 2.6(c) or (d), shall satisfy the following conditions (to the extent provided below):
(i) on or before the fifth Business Day prior to the Addition Date therefor, with respect to additions pursuant to subsection 2.6(c) and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient Eligible Accounts tenth Business Day prior to be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation additions pursuant to subsection 2.6(d) (as applicable, the “Notice Date”), the Transferor shall give the Trustee, each Rating Agency and the Servicer written notice that such Supplemental Accounts will be included, which notice shall specify the approximate aggregate amount of Additional Accounts, such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assetsbe transferred;
(ii) as of each of on or before the Additional Cut-Off Date and the applicable Addition Date, no Insolvency Event with respect to Capital One the Transferor and the Trustee shall have occurred nor shall executed a written assignment in substantially the sale form of Exhibit H (the Receivables arising in the Additional Accounts “Assignment”) and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One Transferor shall have indicated in its computer files that the Receivables created in connection with the Supplemental Accounts have been transferred to the Trustee by identifying such Additional Supplemental Accounts in its master file maintained in its computer files with the designation portfolio ID 0001 and the related Purchased Assets have been sold to Funding and Transferor shall have delivered to Funding the Trustee an Account Schedule pursuant to Section 2.1;
(iii) the Transferor shall represent and warrant that (x) no selection procedure that is materially adverse to the interests of the Investor Securityholders was utilized in selecting the Supplemental Accounts and (y) on the applicable Addition Date, the Transferor is not insolvent and will not be rendered insolvent upon the transfer of Receivables to the Trust;
(iv) the Transferor shall represent and warrant that, on the Addition Date, the Assignment constitutes either (x) a valid transfer and assignment to the Trustee of all right, title and interest of the Transferor in and to the Receivables then existing and thereafter created and arising in connection with the Supplemental Accounts and the proceeds thereof, and such Receivables and all proceeds thereof will be held by the Trustee free and clear of any Lien of any Person claiming through or under the Transferor, except for (i) Permitted Liens, (ii) the interest of the Transferor as Holder of the Exchangeable Transferor Security and any other Class or Series of Securities and (iii) the Transferor’s right, if any, to receive interest accruing on, and investment earnings, if any, in respect of, any Interest Funding Account and any Principal Account, the Excess Funding Account or any Series Account as provided in this Agreement and any related Supplement or (y) 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, which is enforceable with respect to then existing Receivables of the Supplemental Accounts and the proceeds (as defined in the UCC as in effect in the Relevant UCC State) thereof upon the conveyance of such Receivables to the Trustee, and which will be enforceable with respect to the Receivables thereafter created in respect of Supplemental Accounts designated on such Addition Date and the proceeds (as defined in the UCC as in effect in the Relevant UCC State) thereof upon such creation; and (z) if the Assignment constitutes the grant of a security interest to the Trustee in such property, upon the filing of a financing statement as described in Section 2.1 with respect to such Additional Supplemental Accounts (and in the case of Additional the Receivables thereafter created in such Supplemental Accounts designated pursuant to Subsection 2.02(a)(i))and the proceeds (as defined in the UCC as in effect in the Relevant UCC State) thereof, upon such creation, the Trustee shall have a first priority perfected security interest in such property, except for Permitted Liens;
(v) Capital One and Funding the Transferor shall have entered into deliver to the Trustee an Officer’s Certificate of the Transferor substantially in the form of Schedule 2 to Exhibit H confirming the items set forth in paragraph (ii) above;
(vi) the Transferor shall deliver to the Trustee an Opinion of Counsel with respect to the Receivables in the Supplemental Accounts (with a duly executed, written assignment, copy to the Rating Agencies) substantially in the form of Exhibit A (the “Supplemental Conveyance”)I; and
(vivii) Capital One unless the Transferor shall have received written notice from each Rating Agency that the inclusion of such accounts as Supplemental Accounts pursuant to subsection 2.6(c) or (d), as the case may be, will not result in the reduction or withdrawal of its then existing rating of any Class of any Series of Investor Securities then issued and outstanding and shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, such notice to the extent applicableTrustee, the items set forth number of Supplemental Accounts the Receivables of which are designated to be included in the Trust pursuant to subsection 2.6(c) or (d) since (A) the first day of the eleventh preceding Monthly Period minus the number of Accounts of the type described in clause (ii) of the definition of “Approved Account” which have been added to the Trust since the first day of such eleventh preceding Monthly Period, shall not exceed 20% of the number of Accounts on the first day of such eleventh preceding Monthly Period, and (B) the first day of the second preceding Monthly Period minus the number of Accounts of the type described in clause (ii) of the definition of “Approved Account” which have been added to the Trust since the first day of such second preceding Monthly Period, shall not exceed 15% of the number of Accounts on the first day of such second preceding Monthly Period; provided, however, that the aggregate principal balance in the Supplemental Accounts specified (y) in clause (A) above shall not exceed the product of (i) 20% and (ii) the Aggregate Principal Receivables determined as of the first day of the eleventh preceding Monthly Period and (z) in clause (B) above shall not exceed the product of (i) 15% and (ii) the Aggregate Principal Receivables determined as of the first day of the second preceding Monthly Period; provided further, however, that the Supplemental Accounts specified in clauses (A) and (B) above shall not include Accounts not initially originated by DMCCB, HSBC Nevada, the respective successors or assigns of either of them, or any Affiliate thereof; provided further, however, that the first and second provisos to this subsection 2.6(e)(vii) may be changed or eliminated at any time if the Transferor shall have received written notice from each Rating Agency that such action will not result in the reduction or withdrawal of its then existing rating of any Class of any Series of Investor Securities then issued and outstanding and shall have delivered such notice to the Trustee.
(f) The Transferor shall be permitted to designate Additional Accounts with respect to any Monthly Period (the “Current Monthly Period”) prior to the last day of the May 1996 Monthly Period pursuant to subsection 2.6(a) of the Agreement, without limitation, provided, however, that with respect to each Monthly Period beginning with the September 1995 Monthly Period:
(i) the arithmetic average for the three Monthly Periods preceding the Current Monthly Period, of the annualized percentage equivalent of a fraction for each respective Monthly Period, the numerator of which is equal to the Default Amount for the respective Monthly Period (provided, however, that the Default Amount with respect to each Default Recognition Date shall be deemed to apply to the Monthly Period ending closest to such Default Recognition Date) and the denominator of which is equal to the average amount of Aggregate Principal Receivables outstanding on each day during such Monthly Period, is less than 6%;
(ii) the arithmetic average for the three Monthly Periods preceding the Current Monthly Period, of the percentage (the “Payment Rate Percentage”) equivalent of a fraction for each respective Monthly Period, the numerator of which is equal to the amount of Collections received during the respective Monthly Period and the denominator of which is equal to the Aggregate Principal Receivables as of the first day of the respective Monthly Period, is greater than or equal to 6%;
(iii) the weighted average of the Portfolio Yields for each Series then outstanding for the three Monthly Periods preceding the Current Monthly Period minus the weighted average of the Base Rates for each Series then outstanding for such three Monthly Periods (the “Excess Spread Percentage”) is greater than or equal to 4%; or
(iv) Standard & Poor’s shall not have notified the Transferor that the continued addition of Additional Accounts pursuant to this subsection 2.6(f) will result in a reduction or withdrawal of the then current rating of any Class by Standard & Poor’s. In the event that as of any date of determination prior to last day of the May 1996 Monthly Period any of the conditions in clauses (i) through (viii) abovelisted above is not met, and with respect to each Monthly Period after the May 1996 Monthly Period, this subsection 2.6(f) shall no longer apply and the conditions of subsection 2.6(g) shall apply. On or before the later of (x) the last day of the September 1995 Monthly Period, the December 1995 Monthly Period and the March 1996 Monthly Period or (y) in each case the tenth day following receipt of the settlement statement for the prior Monthly Period, Standard & Poor’s shall determine whether a Ratings Event shall have occurred in connection with the addition of Additional Accounts during the three consecutive Monthly Periods ending in August, November and February preceding such date. Upon the occurrence of a Ratings Event in connection with the addition of Additional Accounts this subsection 2.6(f) shall no longer apply and the conditions of subsection 2.6(g) shall apply.
(g) Unless each Rating Agency otherwise consents to the continued automatic addition of accounts, on and after the beginning of the June 1996 Monthly Period, the Transferor shall be required to cease the automatic addition of accounts and notify the Trustee, the Servicer and each Rating Agency of the Automatic Addition Suspension Date in the following circumstances: the number of Accounts the Receivables of which are designated to be included in the Trust pursuant to subsection 2.6(a) since (i) the first day of the eleventh preceding Monthly Period (or, in the case of any date on which Additional Accounts are to be added to the Trust which occurs on or before the last day of the May 1997 Monthly Period, June 1, 1996) minus the number of Accounts of the type described in clause (ii) of the definition of “Approved Account” which have been added on the initial day of the addition of such type of Account pursuant to such clause (ii) since the first day of such eleventh preceding Monthly Period (or June 1, 1996, as the case may be) shall not exceed 20% of number of Accounts on the first day of such eleventh preceding Monthly Period (or June 1, 1996, as the case may be), and (ii) the first day of the second preceding Monthly Period (or, in the case of any date on which Additional Accounts are to be added to the Trust which occurs on or before the last day of the August 1996 Monthly Period, June 1, 1996) minus the number of Accounts of the type described in clause (ii) of the definition of “Approved Accounts” have been added on the initial day of the addition of such type of Account pursuant to such clause (ii) since the first day of such second preceding Monthly Period (or June 1, 1996, as the case may be) shall not exceed 15% of the number of Accounts on the first day of such second preceding Monthly Period (or June 1, 1996, as the case may be) ; provided, however, that the Additional Accounts specified in clauses (i) and (ii) above shall not include Accounts not initially originated by DMCCB, HSBC Nevada, the respective successors or assigns of either of them, or any Affiliate thereof; provided, however, that no Accounts related to Discover Cards may be automatically included under this Section 2.6(g) unless the Transferor shall have received the consent of each Rating Agency; provided, further, however, that the immediately preceding proviso to this subsection 2.6(g) may be changed or eliminated at any time if the Transferor shall have received written notice from each Rating Agency that such action will not result in the reduction or withdrawal of its then existing rating of any Class of any Series of Investor Securities then issued and outstanding and shall have delivered such notice to the Trustee.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Metris Master Trust), Pooling and Servicing Agreement (Metris Master Trust)
Addition of Accounts. (a) If (i) IfRFC IV is required, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(aSection 2.09(a) of the Pooling and Servicing Agreement, to designate additional accounts to the Trust, or (Bii) elects to designate Additional Accounts RFC IV elects, pursuant to Subsection 2.08(bSection 2.09(b) of the Pooling and Servicing Agreement, to designate additional accounts to the Trust, then in either case Funding mayRFC IV, at its option, may give Capital One written notice thereof to FSB; provided, however, that such notice shall be provided on or before the eighth (8th) Business Day prior to immediately preceding the Addition Date therefor, and upon related addition date. Upon receipt of such notice Capital One shall and on or before the Addition Dateprior to such addition date, FSB shall designate sufficient Eligible Accounts as Aggregate Addition Accounts and shall sell to be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One mayRFC IV the Purchased Assets related to such Aggregate Addition Accounts. In addition, at its option and with the consent of FundingRFC IV, FSB may designate newly originated Eligible Accounts as Aggregate Addition Accounts and sell to be included as Additional RFC IV the Purchased Assets related to such Aggregate Addition Accounts.
(b) At its option and with the consent of RFC IV, FSB may designate Eligible Accounts as New Accounts and sell to RFC IV the Purchased Assets related to such New Accounts. FSB or RFC IV, each at its option and by written notice to the other party at least ten (10) days in advance, may elect at any time to terminate the inclusion of new accounts which would otherwise be New Accounts as of any Business Day, to suspend any such inclusion as of any Business Day, or to resume any such inclusion as of any Business Day.
(c) On the Addition Date with respect to any designation of Additional Accounts, such Additional Accounts shall become Accounts, and Funding RFC IV shall purchase Capital OneFSB’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One as of the Addition Selection Date, such Additional Accounts shall be Eligible Accounts;
(ii) FSB shall have delivered to Funding RFC IV copies of UCC financing statements covering such Additional Accounts, if necessary to perfect FundingRFC IV’s interest in the Receivables arising therein and the related Purchased Assets;
(iiiii) FSB shall have delivered to RFC IV all Collections with respect to such Additional Accounts since the Addition Cut-Off Date;
(iv) as of each of the Additional Addition Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One FSB shall have occurred nor shall the sale of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding RFC IV have been made in contemplation of the occurrence thereof;
(iiiv) Capital One in the case of Aggregate Addition Accounts, such addition will not have a material adverse effect on RFC IV;
(vi) FSB shall have delivered to Funding RFC IV an Officer’s Certificate of Capital OneFSB, dated the Addition Date, confirming, to the effect that extent applicable and in FSB’s reasonable belief, the items set forth in clauses (Ai) Capital One reasonably believes that through (v) above;
(vii) in the case of New Accounts, such addition will not, based on the facts known to such officer at the time of such certification, then not cause a Pay Pay-Out Event or a Reinvestment Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the additionAgreement;
(ivviii) Capital One FSB shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and RFC IV and, in the case of Aggregate Addition Accounts, shall have delivered to Funding RFC IV the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));Aggregate Addition Accounts; and
(vix) Capital One FSB and Funding RFC IV shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) above.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (American Express Credit Account Master Trust), Receivables Purchase Agreement (American Express Credit Account Master Trust)
Addition of Accounts. (a) (i) If, The Seller may from time to time, Funding (A) becomes obligated time offer to designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts to be included as Accounts, subject to the conditions specified in paragraph (b) below. If any such offer is accepted by the Buyer, Receivables and Collateral Security, if any, from such Additional Accounts shall be sold to the Buyer effective on a date (the "Addition Date") specified in a written notice provided by the Seller (or the Servicer on its behalf) to the Buyer, the Rating Agencies and any Enhancement Providers specifying the Additional Cut-off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date or, if the Automatic Addition Condition is satisfied, on the Determination Date following the Collection Period in which such Addition Dates occur (the "Notice Date"). An Addition Notice may relate to one or more Accounts on one or more Addition Dates.
(b) The Seller shall be permitted to convey to the Buyer the Receivables and all Collateral Security, if any, related thereto in any Additional Accounts designated by the Seller as requested by Fundingsuch pursuant to Section 2.4(a) only upon satisfaction of each of the following conditions on or prior to the related Addition Date (except for the condition in clause (vii), if applicable, which shall be satisfied on or before the tenth Business Day after such Notice Date):
(i) The Seller shall provide the Buyer, the Rating Agencies and any Enhancement Providers with a timely Addition Notice.
(ii) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Such Additional Accounts shall all be Eligible Accounts to be included as Additional Accounts.
(biii) On the Addition Date with respect to any designation of Additional Accounts, such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One The Seller shall have delivered to Funding copies the Buyer a duly executed written assignment (including an acceptance by the Buyer) covering the Receivables specified in the Addition Notice in substantially the form of UCC financing statements covering Exhibit A (the "Assignment") and the computer file or microfiche or written list required to be delivered pursuant to Section 2.1.
(iv) The Seller shall have delivered to the Buyer for deposit in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut-off Date.
(A) No selection procedures believed by the Seller to be adverse to the interests of the Buyer or the Beneficiaries were used in selecting such Additional Accounts, if necessary ; (B) the list of Additional Accounts delivered pursuant to perfect Funding’s interest clause (iii) above is true and correct in all material respects as of the Receivables arising therein Additional Cut-off Date and the related Purchased Assets;
(iiC) as of each of the Additional Cut-Off Notice Date and the Addition Date, no Insolvency Event neither the Seller, the Buyer nor the Servicer are insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency.
(vi) If the Automatic Addition Condition is not satisfied with respect to Capital One such addition, the Rating Agency Condition shall have occurred nor been satisfied with respect to such addition.
(vii) If one or more of the Additional Accounts specified in such Addition Notice will contain Receivables secured by a security interest in a type of Product that has not been previously financed in the Floorplan Business then, whether or not the Automatic Condition is satisfied, the Rating Agency Condition shall have been satisfied in respect of the sale addition of each such Additional Account on or prior to the related Addition Date.
(viii) The addition of the Receivables arising in the such Additional Accounts and the related Purchased Assets to Funding have been made shall not result in contemplation of the occurrence thereof;of an Pay Out Event.
(iiiix) Capital One The Seller shall have delivered to Funding an Officer’s Certificate the Buyer, the Rating Agencies and any Enhancement Providers a certificate of Capital One, dated a Vice President or more senior officer confirming the Addition items set forth in paragraphs (ii) through (vi) and (viii) above.
(x) On or before each Notice Date, the Seller shall have delivered to the effect that Trustee, the Rating Agencies and any Enhancement Providers (A) Capital One reasonably believes that such addition will not, based on an Opinion of Counsel with respect to the facts known to such officer at Receivables in the time Additional Accounts added since the last delivery of such certification, then cause a Pay Out Event under opinion substantially in the Pooling and Servicing Agreement or any event form of Exhibit E-3 to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) except in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created an addition in connection with such Additional Accounts an addition of Receivables by the Buyer to the Trust required by Section 2.6(a) of the Pooling and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule Servicing Agreement, a Tax Opinion with respect to such Additional Accounts addition; provided, however, that if (in x) the case Automatic Addition Condition is satisfied with respect to such addition and (y) the Seller's senior unsecured long-term debt is then rated "A-" or higher by Standard & Poor's, and "Baa1" or higher by Moody's, such Opinion of Additional Accounts designated pursuant Counsel and Tax Opinion will be required to Subsection 2.02(a)(i));be delivered no more frequently than semi-annually.
(vc) Capital One The Seller hereby represents and Funding warrants as of the applicable Addition Date as to the matters set forth in Section 2.4(b)(v). The representations and warranties set forth in Section 2.4(b)(v) shall have entered into a duly executedsurvive the sale and assignment of the respective Receivables and Collateral Security, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirmingif any, to the extent applicableBuyer. Upon discovery by the Seller or the Buyer of a breach of any of the foregoing representations and warranties, the items set forth in clauses (i) through (v) aboveparty discovering the breach shall give prompt written notice to the other parties and to any Enhancement Providers.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Greentree Floorplan Funding Corp), Receivables Purchase Agreement (Greentree Floorplan Funding Corp)
Addition of Accounts. (a) If, as of the close of business on the last day of any Collection Period, (i) Ifthe Pool Balance on such day is less than the Required Participation Amount as of the following Distribution Date (after giving effect to the allocations, distributions, withdrawals and deposits to be made on such Distribution Date), or (ii) the result obtained by multiplying (x) the Seller's Participation Amount as of the following Distribution Date (after giving effect to the allocations, distributions, withdrawals and deposits to be made on such Distribution Date), by (y) the percentage equivalent of the portion of the Seller's Interest represented by the CARCO Certificate, is less than 2% of the Pool Balance on such last day, then the Seller shall, within 10 Business Days following the end of such Collection Period, designate and transfer to the Trust the Receivables (and the related Collateral Security) of additional Eligible Accounts of the Seller to be included as Accounts in a sufficient amount such that after giving effect to such addition (i) the Pool Balance as of the close of business on the Addition Date is at least equal to such Required Participation Amount or (ii) the result obtained by multiplying (x) such Seller's Participation Amount by (y) the percentage equivalent of the portion of the Seller's Interest represented by the CARCO Certificate, is at least equal to 2% of such Pool Balance, as the case may be. The Seller shall satisfy the conditions specified in Section 2.05(d) in designating such Additional Accounts and conveying the related Receivables to the Trust. The failure of the Seller to transfer Receivables to the Trust as provided in this paragraph solely as a result of the unavailability of a sufficient amount of Eligible Receivables shall not constitute a breach of this Agreement; provided, however, that any such failure will nevertheless result in the occurrence of an Early Amortization Event described in Section 9.01(a).
(b) The Seller may from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its optionsole discretion, give Capital One written notice thereof on or before the eighth Business Day prior subject to the Addition Date thereforconditions specified in paragraph (d) below, and upon receipt of such notice Capital One shall on or before the Addition Date, voluntarily designate sufficient additional Eligible Accounts (including Partial Accounts) to be included as Additional Accounts as requested by Funding.
and transfer to the Trust the Receivables (iiand the related Collateral Security) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as such Additional Accounts.
(c) Receivables and Collateral Security from such Additional Accounts shall be sold to the Trust effective on a date (the "Addition Date") specified in a written notice provided by the Seller (or the Servicer on its behalf) to the Trustee, the Rating Agencies, any Agent and any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date (the "Notice Date"). The Addition Notice shall also specify whether any such Additional Accounts are Partial Accounts.
(d) The Seller shall be permitted to convey to the Trust the Receivables and all Collateral Security related thereto in any Additional Accounts designated by the Seller as such pursuant to Section 2.05(a) or (b) only upon satisfaction of each of the following conditions on or prior to the related Addition Date:
(i) the Seller shall have provided the Trustee, any Agent, the Rating Agencies and any Enhancement Providers with a timely Addition Notice;
(ii) such Additional Accounts shall all be Eligible Accounts;
(iii) the Seller shall have delivered to the Trustee a duly executed written assignment (including an acceptance by the Trustee) in substantially the form of Exhibit B (the "Assignment") and the computer file or microfiche or written list required to be delivered pursuant to Section 2.01;
(iv) the Seller shall, to the extent required by Section 4.03, have deposited in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut-Off Date;
(v) (A) no selection procedures believed by the Seller to be adverse to the interests of the Beneficiaries were used in selecting such Additional Accounts; (B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, neither CFC, CCC, nor the Seller were insolvent nor will any of them have been made insolvent by such transfer nor are any of them aware of any pending insolvency;
(vi) the Rating Agency Condition shall have been satisfied with respect to such addition;
(vii) the addition of the Receivables arising in such Additional Accounts shall not result in the occurrence of an Early Amortization Event;
(viii) the Seller shall have delivered to the Trustee and any Enhancement Providers a certificate of a Vice President or more senior officer confirming (A) the items set forth in paragraphs (ii) through (vii) above and (B) that the Seller reasonably believes that the addition of the Receivables arising in such Additional Accounts will not result in the occurrence of an Early Amortization Event; and
(ix) on or before each Addition Date, the Seller shall have delivered to the Trustee and any Enhancement Providers (A) an Opinion of Counsel with respect to the Receivables in the Additional Accounts substantially in the form of Exhibit G-2 and (B) except in the case of an addition required by Section 2.05(a), a Tax Opinion with respect to such addition.
(e) The Seller hereby represents and warrants as of the applicable Addition Date as to the matters set forth in Section 2.05(d)(v). Upon discovery by the Seller, the Servicer, any Agent, the Trustee or any Enhancement Providers of a breach of the foregoing representations and warranties, the party discovering the breach shall give prompt written notice to the other parties, to any Agent and to any Enhancement Providers.
(f) Unless otherwise agreed to by the Rating Agencies, notwithstanding anything to the contrary in this Agreement, the Seller may from time to time, at its discretion, and subject only to the limitations specified in this paragraph, designate Additional Accounts to be added to the Trust. (Additional Accounts designated to be added to the Trust in accordance with the provisions of this Section 2.05(f) are referred to herein as "Automatic Additional Accounts".) On the Addition Date with respect to any designation of Automatic Additional Accounts, such Additional Accounts shall become Accounts, and Funding the Trust shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Automatic Additional Accounts (and such Automatic Additional Accounts shall be deemed to be Accounts for purposes of this Agreement) as of the related Purchased Assets as provided in Section 2.01close of business on the applicable Additional Cut-Off Date, subject to the satisfaction of the following conditions on such Addition Dateconditions:
(i) Capital One such Automatic Additional Accounts shall have delivered to Funding copies of UCC financing statements covering such Additional be Eligible Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assets;
(ii) the Seller shall, to the extent required by Section 4.03, have deposited in the Collection Account all Collections with respect to such Automatic Additional Accounts since the Additional Cut-Off Date;
(iii) no selection procedures believed by the Seller to be adverse to the interests of the Certificateholders were used in selecting such Automatic Additional Accounts,
(iv) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One DCS or the Seller shall have occurred nor shall the sale transfer of the Receivables arising in the Automatic Additional Accounts and to the related Purchased Assets to Funding Trust have been made in contemplation of the occurrence thereof;
(iiiv) Capital One the addition of the Receivables arising in the Automatic Additional Accounts shall have delivered to Funding not cause an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement early amortization event or any event to occur that, after the giving of notice or the lapse of time time, would constitute a Pay Out Event under early amortization event to occur with respect to any Series;
(vi) on or before each Addition Date with respect to Automatic Additional Accounts, the Pooling Seller shall have delivered to the Trustee and Servicing the Rating Agencies (A) an Opinion of Counsel with respect to the Receivables in the Automatic Additional Accounts substantially in the form of Exhibit G-2 to this Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse Tax Opinion with respect to the interests of Funding as of the date of the such addition;
(ivvii) Capital One shall have indicated in its computer files that within ten Business Days of the date on which any such Receivables created in connection with such Additional Accounts and are added to the related Purchased Assets have been sold to Funding and Trust, the Seller shall have delivered to Funding the Trustee a written assignment and a computer file or a microfiche list containing a true and complete list of the related Automatic Additional Accounts specifying for each such Account Schedule its account number, the collection status, the aggregate amount outstanding in such Account and the aggregate amount of Principal Receivables outstanding in such Account; and
(viii) the Seller shall have delivered to the Trustee an Officer's Certificate of the Seller, dated the Addition Date, to the effect that conditions (i) through (v) and (vii) above have been satisfied. The Seller hereby represents and warrants to the Trust as of the related Addition Date as to the matters relating to it set forth in paragraphs (iii) and (iv) above and that the file or list described below is, as of the applicable Additional Cut-Off Date, true and complete in all material respects. In connection with the designation of Automatic Additional Accounts to be added to the Trust, the Seller shall deliver to the Trustee (i) the computer file or microfiche list required to be delivered pursuant to Section 2.01 with respect to such Automatic Additional Accounts and (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(vii) Capital One and Funding shall have entered into a duly executed, executed written assignmentAssignment (including an acceptance by the Trustee for the benefit of the Certificateholders), substantially in the form of Exhibit A (B to this Agreement. Unless each Rating Agency otherwise consents, the “Supplemental Conveyance”); and
(vi) Capital One number of Automatic Additional Accounts added to the Trust with respect to any of the three consecutive Collection Periods beginning in January, April, July and October of each calendar year shall not exceed 8% of the number of Accounts as of the first day of the calendar year during which such Collection Periods commence and the number of Automatic Additional Accounts designated during any such calendar year shall not exceed 20% of the number of Accounts as of the first day of such calendar year. On or before the first business day of each Collection Period beginning in January, April, July and October of each calendar year, the Seller shall have delivered to Funding an Officer’s Certificate requested and obtained notification from each Rating Agency of Capital One, dated the Addition Date, confirming, any limitations to the right of the Seller to designate Eligible Accounts as Automatic Additional Accounts during any period which includes such Collection Period. To the extent applicablethat Automatic Additional Accounts have been added to the Trust during the three consecutive Collection Periods. ending in the calendar month prior to such date, on or before January 31, April 30, July 31, October 31 of each calendar year, the items set forth Trustee shall have received confirmation from each Rating Agency that the addition of all Automatic Additional Accounts included as Accounts during the three consecutive Collection Periods ending in clauses (i) through (v) abovethe calendar month prior to such date shall not have resulted in any applicable Rating Agency reducing or withdrawing its rating of any outstanding Series or Class of Certificates. If such Rating Agency confirmation with respect to any Automatic Additional Accounts is not so received, such Automatic Additional Accounts will be removed from the Trust.`
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Daimlerchrysler Wholesale Receivables LLC), Pooling and Servicing Agreement (Daimlerchrysler Wholesale Receivables LLC)
Addition of Accounts. (a) If, (1) as of the end of any two consecutive Due Periods, the Transferor Amount as a percentage of the Trust Principal Component is less than the Minimum Transferor Percentage, the Transferors shall designate additional Eligible Accounts (the "Additional Accounts") to be included as Accounts in a sufficient amount such that the Transferor Amount as a percentage of the Trust Principal Component after giving effect to such addition at least equals the Minimum Transferor Percentage, or (2) as of the end of any Due Period, the Trust Principal Component is less than the Minimum Trust Principal Component, then the Transferor shall designate Additional Accounts to be included as Accounts in a sufficient amount such that the Trust Principal Component will be equal to or greater than the Minimum Trust Principal Component. Receivables from such Additional Accounts shall be transferred to the Trust, in the case of subclause (i), on or before 15 days following the Determination Date related to the second of such Due Periods and, in the case of subclause (2), on or before 15 days following such Determination Date (the "Additional Account Closing Date").
(b) In addition to its obligation under subsection 2.06(a), the Transferors may, but shall not be obligated to, designate from time to time Additional Accounts to be included as Accounts.
(c) The Transferors agree that any such transfers of Receivables from Additional Accounts under subsection 2.06(a) or (b) shall satisfy the following conditions:
(i) If, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on On or before the eighth tenth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Additional Account Closing Date, designate sufficient Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One may, at its option the Transferors shall give the Trustee and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, Servicer written notice that such Additional Accounts shall become Accounts, will be included and Funding shall purchase Capital One’s right, title and interest in, to and under specifying the approximate aggregate amount of the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assetsbe transferred;
(ii) On or prior to the Additional Account Closing Date, the Transferors 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 their respective computer files that the Receivables created in connection with the Additional Accounts have been transferred to the Trust and the Servicer shall have delivered to the Trustee a computer file or microfiche list represented by the Servicer 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 each of the Additional Account Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One which computer file or microfiche list shall have occurred nor shall the sale be as of the Receivables arising in the Additional Accounts date of such Assignment incorporated into and the related Purchased Assets to Funding have been made in contemplation a part of the occurrence thereofsuch Assignment and this Agreement;
(iii) Capital One The Transferors shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect severally represent and warrant that (Ax) Capital One reasonably believes that such addition will noteach Additional Account was, based on as of the facts known to such officer at date of its selection (the time of such certification"Additional Account Selection Date"), then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur thatan Eligible Account, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (By) in the case of Additional Accounts, no selection procedure was utilized procedures believed by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would Transferors to be materially adverse to the interests of Funding any Series of Investor Certificates or any Enhancement Provider were utilized in selecting the Additional Accounts from the available Eligible Accounts in each Transferor's portfolio; and (z) as of the date Additional Account Closing Date, neither Transferor is insolvent or will be made insolvent by the transfer of the additionReceivables of such Additional Accounts;
(iv) Capital One The Transferors shall have indicated represent and warrant, that, as of the Additional Account Closing Date, the Assignment constitutes either (x) a valid transfer and assignment to the Trust of all right, title and interest of the Transferors in its computer files that and to the Receivables then existing and thereafter created in connection 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 either Transferor or any of its Affiliates, except for (i) Liens permitted under subsection 2.05(b) hereunder, (ii) the interest of the holder of the Exchangeable Transferor Certificate and (iii) 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 as provided in this Agreement and any Supplement or (y) 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 Accounts, and the related Purchased Assets have been sold proceeds thereof to Funding 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 shall have delivered which will be enforceable with respect to Funding the Account Schedule Receivables thereafter created in respect of Additional Accounts, and the proceeds (to the extent set forth in Section 9-306 of the UCC as in effect in the Relevant UCC State) thereof upon such creation; and (z) 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 2.01 with respect to such Additional Accounts (and in the case of such Receivables of Additional Accounts designated pursuant thereafter created and the proceeds thereof to Subsection 2.02(a)(i))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 subsection 2.05(b) hereunder;
(v) Capital One Each 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 Funding (iv) above and (vii) below and the Trustee may conclusively rely on such Officer's Certificate, shall have entered into a duly executed, written assignment, no duty to make inquiries with regard to the matters set forth therein and shall incur no liability in so relying;
(vi) The Transferors 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 A (the “Supplemental Conveyance”)G; and
(vivii) Capital One The Rating Agencies shall have delivered received ten (10) Business Days' notice of such proposed addition of Additional Accounts; in the event that Additional Accounts are being added pursuant to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicablesubsection 2.06(b), the items set forth Transferors shall have received written confirmation from Moody's (if Moody's shall then be a Rating Agency) that such addition would not result in clauses a downgrade or withdrawal of its then current rating of any outstanding Series of Investor Certificates; and, in the event that the number of Additional Accounts designated with respect to any three consecutive Due Periods would exceed 15% of the number of Accounts as of the first day of the calendar year during which such Due Periods commence or the number of Additional Accounts designated during any such calendar year would exceed 20% of the number of Accounts as of the first day of such calendar year, the Transferors shall have received written confirmation from Standard & Poor's, (iif Standard & Poor's shall then be a Rating Agency) through (v) abovethat such addition would not result in a downgrade or withdrawal of its then current rating of any outstanding Series of Investor Certificates.
Appears in 2 contracts
Samples: Master Pooling and Servicing Agreement (American Express Centurion Bank), Master Pooling and Servicing Agreement (American Express Centurion Bank)
Addition of Accounts. (a) If (i) Ifthe Purchaser is required, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(aSection 2.09(a) of the Pooling and Servicing Agreement, to designate additional accounts to the Trust, or (Bii) elects to designate Additional Accounts the Purchaser elects, pursuant to Subsection 2.08(bSection 2.09(b) of the Pooling and Servicing Agreement, to designate additional accounts to the Trust, then in either case Funding maythe Purchaser, at its option, may give Capital One written notice thereof to the Seller; provided, however, that such notice shall be provided on or before the eighth (8th) Business Day prior to immediately preceding the Addition Date therefor, and upon related addition date. Upon receipt of such notice Capital One shall and on or before prior to such addition date, the Addition Date, Seller shall designate sufficient Eligible Accounts as Aggregate Addition Accounts and shall sell to be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One maythe Purchaser the Purchased Assets related to such Aggregate Addition Accounts. In addition, at its option and with the consent of Fundingthe Purchaser, the Seller may designate newly originated Eligible Accounts as Aggregate Addition Accounts and sell to be included as Additional the Purchaser the Purchased Assets related to such Aggregate Addition Accounts.
(b) At its option and with the consent of the Purchaser, the Seller may designate Eligible Accounts as New Accounts and sell to the Purchaser the Purchased Assets related to such New Accounts. The Seller or the Purchaser, each at its option and by written notice to the other party at least ten (10) days in advance, may elect at any time to terminate the inclusion of new accounts which would otherwise be New Accounts as of any Business Day, to suspend any such inclusion as of any Business Day, or to resume any such inclusion as of any Business Day.
(c) On the Addition Date with respect to any designation of Additional Accounts, such Additional Accounts shall become Accounts, and Funding the Purchaser shall purchase Capital Onethe Seller’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One as of the Addition Selection Date, such Additional Accounts shall be Eligible Accounts;
(ii) the Seller shall have delivered to Funding the Purchaser copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Fundingthe Purchaser’s interest in the Receivables arising therein and the related Purchased Assets;
(iiiii) the Seller shall have delivered to the Purchaser all Collections with respect to such Additional Accounts since the Addition Cut-Off Date;
(iv) as of each of the Additional Addition Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One the Seller shall have occurred nor shall the sale of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding the Purchaser have been made in contemplation of the occurrence thereof;
(iiiv) Capital One in the case of Aggregate Addition Accounts, such addition will not have a material adverse effect on the Purchaser;
(vi) the Seller shall have delivered to Funding the Purchaser an Officer’s Certificate of Capital Onethe Seller, dated the Addition Date, confirming, to the effect that extent applicable and in the Seller’s reasonable belief, the items set forth in clauses (Ai) Capital One reasonably believes that through (v) above;
(vii) in the case of New Accounts, such addition will not, based on the facts known to such officer at the time of such certification, then not cause a Pay Pay-Out Event or a Reinvestment Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the additionAgreement;
(ivviii) Capital One the Seller shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and the Purchaser and, in the case of Aggregate Addition Accounts, shall have delivered to Funding the Purchaser the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));Aggregate Addition Accounts; and
(vix) Capital One the Seller and Funding the Purchaser shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) above.
Appears in 2 contracts
Samples: Receivables Purchase Agreement, Receivables Purchase Agreement (American Express Receivables Financing Corp Iv LLC)
Addition of Accounts. (a) If, as of the close of business on the last day of any Collection Period, (i) Ifthe Pool Balance on such day is less than the Required Participation Amount as of the following Payment Date (after giving effect to the allocations, distributions, withdrawals and deposits to be made on such Payment Date), or (ii) the result obtained by multiplying (x) the Seller's Participation Amount as of the following Payment Date (after giving effect to the allocations, distributions, withdrawals and deposits to be made on such Payment Date), by (y) the percentage equivalent of the portion of the Seller's Interest represented by the DCMOT Certificate, is less than 2% of the Pool Balance on such last day, then the Seller shall, within ten Business Days following the end of such Collection Period, designate and transfer to the Trust the Receivables (and the related Collateral Security) of additional Eligible Accounts of the Seller to be included as Accounts in a sufficient amount such that after giving effect to such addition (i) the Pool Balance as of the close of business on the Addition Date is at least equal to such Required Participation Amount or (ii) the result obtained by multiplying (x) such Seller's Participation Amount by (y) the percentage equivalent of the portion of the Seller's Interest represented by the DCMOT Certificate, is at least equal to 2% of such Pool Balance, as the case may be. The Seller shall satisfy the conditions specified in Section 2.05(d) in designating such Additional Accounts and conveying the related Receivables to the Trust. The failure of the Seller to transfer Receivables to the Trust as provided in this paragraph solely as a result of the unavailability of a sufficient amount of Eligible Receivables shall not constitute a breach of this Agreement; provided, however, that any such failure will nevertheless result in the occurrence of an Early Redemption Event described in each Indenture Supplement, unless otherwise specified therein with respect to the related Series or Class.
(b) The Seller may from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its optionsole discretion, give Capital One written notice thereof on or before the eighth Business Day prior subject to the Addition Date thereforconditions specified in paragraph (d) below, and upon receipt of such notice Capital One shall on or before the Addition Date, voluntarily designate sufficient additional Eligible Accounts (including Partial Accounts) to be included as Additional Accounts as requested by Funding.
and transfer to the Trust the Receivables (iiand the related Collateral Security) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as such Additional Accounts.
(c) Receivables and Collateral Security from such Additional Accounts shall be sold to the Trust effective on a date (the "Addition Date") specified in a written notice provided by the Seller (or the Servicer on its behalf) to the Trust, the Trustee, the Rating Agencies, any Agent and any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date (the "Notice Date"). The Addition Notice shall also specify whether any such Additional Accounts are Partial Accounts.
(d) The Seller shall be permitted to convey to the Trust the Receivables and all Collateral Security related thereto in any Additional Accounts designated by the Seller as such pursuant to Section 2.05(a) or (b) only upon satisfaction of each of the following conditions on or prior to the related Addition Date:
(i) the Seller shall have provided the Trust, the Trustee, any Agent, the Rating Agencies and any Enhancement Providers with a timely Addition Notice;
(ii) such Additional Accounts shall all be Eligible Accounts;
(iii) the Seller shall have delivered to the Trust and the Trustee a duly executed written assignment (which shall be acknowledged and accepted by the Trustee) in substantially the form of Exhibit B (the "Assignment") and the computer file or microfiche or written list required to be delivered pursuant to Section 2.01;
(iv) the Seller shall, to the extent required by Section 4.03, have deposited in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut-Off Date;
(v) (A) no selection procedures believed by the Seller to be adverse to the interests of the Trust, the Noteholders or any Enhancement Providers were used in selecting such Additional Accounts; (B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, the Seller was neither insolvent nor will be made insolvent by such transfer, and the Seller is not aware of any pending insolvency;
(vi) the Rating Agency Condition shall have been satisfied with respect to such addition;
(vii) the addition of the Receivables arising in such Additional Accounts shall not result in the occurrence of an Early Redemption Event;
(viii) the Seller shall have delivered to the Trust, the Trustee and any Enhancement Providers a certificate of a Vice President or more senior officer confirming (A) the items set forth in paragraphs (ii) through (vii) above and (B) that the Seller reasonably believes that the addition of the Receivables arising in such Additional Accounts will not result in the occurrence of an Early Redemption Event; and
(ix) on or before each Addition Date, the Seller shall have delivered to the Trust, the Trustee and any Enhancement Providers (A) an Opinion of Counsel with respect to the Receivables in the Additional Accounts substantially in the form of Exhibit G-2 and (B) except in the case of an addition required by Section 2.05(a), a Tax Opinion with respect to such addition.
(e) The Seller hereby represents and warrants as of the applicable Addition Date as to the matters set forth in Section 2.05(d)(v). Upon discovery by the Seller, the Servicer, the Trust, the Owner Trustee, any Agent or the Trustee of a breach of the foregoing representations and warranties, the party discovering the breach shall give prompt written notice to the other parties specified above, and to any Enhancement Providers.
(f) Unless otherwise agreed to by the Rating Agencies, notwithstanding anything to the contrary in this Agreement, the Seller may from time to time, at its discretion, and subject only to the limitations specified in this paragraph, designate Additional Accounts to be added to the Trust. (Additional Accounts designated to be added to the Trust in accordance with the provisions of this Section 2.05(f) are referred to herein as "Automatic Additional Accounts".) On the Addition Date with respect to any designation of Automatic Additional Accounts, such Additional Accounts shall become Accounts, and Funding the Trust shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Automatic Additional Accounts (and such Automatic Additional Accounts shall be deemed to be Accounts for purposes of this Agreement) as of the related Purchased Assets as provided in Section 2.01close of business on the applicable Additional Cut-Off Date, subject to the satisfaction of the following conditions on such Addition Dateconditions:
(i) Capital One such Automatic Additional Accounts shall have delivered to Funding copies of UCC financing statements covering such Additional be Eligible Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assets;
(ii) the Seller shall, to the extent required by Section 4.03, have deposited in the Collection Account all Collections with respect to such Automatic Additional Accounts since the Additional Cut-Off Date;
(iii) no selection procedures believed by the Seller to be adverse to the interests of the Trust, the Noteholders or any Enhancement Providers were used in selecting such Automatic Additional Accounts;
(iv) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One DCFS or the Seller shall have occurred nor shall the sale transfer of the Receivables arising in the Automatic Additional Accounts and to the related Purchased Assets to Funding Trust have been made in contemplation of the occurrence thereof;
(iiiv) Capital One the addition of the Receivables arising in the Automatic Additional Accounts shall have delivered to Funding not cause an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Early Redemption Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time time, would constitute a Pay Out an Early Redemption Event under to occur with respect to any Series;
(vi) on or before each Addition Date with respect to Automatic Additional Accounts, the Pooling Seller shall have delivered to the Trust, the Trustee and Servicing the Rating Agencies (A) an Opinion of Counsel with respect to the Receivables in the Automatic Additional Accounts substantially in the form of Exhibit G-2 to this Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse Tax Opinion with respect to the interests of Funding as of the date of the such addition;
(ivvii) Capital One shall have indicated in its computer files that within ten Business Days of the date on which any such Receivables created in connection with such Additional Accounts and are added to the related Purchased Assets have been sold to Funding and Trust, the Seller shall have delivered to Funding the Trust and the Trustee a written assignment and a computer file or a microfiche list containing a true and complete list of the related Automatic Additional Accounts specifying for each such Account Schedule its account number, the collection status, the aggregate amount outstanding in such Account and the aggregate amount of Principal Receivables outstanding in such Account; and
(viii) the Seller shall have delivered to the Trust and the Trustee an Officers' Certificate of the Seller, dated the Addition Date, to the effect that conditions (i) through (v) and (vii) above have been satisfied. The Seller hereby represents and warrants to the Trust as of the related Addition Date as to the matters relating to it set forth in paragraphs (iii) and (iv) above and that the file or list described below is, as of the applicable Additional Cut-Off Date, true and complete in all material respects. In connection with the designation of Automatic Additional Accounts to be added to the Trust, the Seller shall deliver to the Trust and the Trustee (i) the computer file or microfiche list required to be delivered pursuant to Section 2.01 with respect to such Automatic Additional Accounts and (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(vii) Capital One and Funding shall have entered into a duly executed, executed written assignmentAssignment (which shall be acknowledged and accepted by the Trustee), substantially in the form of Exhibit A (B to this Agreement. Unless each Rating Agency otherwise consents, the “Supplemental Conveyance”); and
(vi) Capital One number of Automatic Additional Accounts added to the Trust with respect to any of the three consecutive Collection Periods beginning in January, April, July and October of each calendar year shall not exceed 8% of the number of Accounts as of the first day of the calendar year during which such Collection Periods commence and the number of Automatic Additional Accounts designated during any such calendar year shall not exceed 20% of the number of Accounts as of the first day of such calendar year. On or before the first business day of each Collection Period beginning in January, April, July and October of each calendar year, the Seller shall have delivered to Funding an Officer’s Certificate requested and obtained notification from each Rating Agency of Capital One, dated the Addition Date, confirming, any limitations to the right of the Seller to designate Eligible Accounts as Automatic Additional Accounts during any period which includes such Collection Period. To the extent applicablethat Automatic Additional Accounts have been added to the Trust during the three consecutive Collection Periods ending in the calendar month prior to such date, on or before January 31, April 30, July 31, October 31 of each calendar year, the items set forth Trustee shall have received confirmation from each Rating Agency that the addition of all Automatic Additional Accounts included as Accounts during the three consecutive Collection Periods ending in clauses (i) through (v) abovethe calendar month prior to such date shall not have resulted in any applicable Rating Agency reducing or withdrawing its rating of any outstanding Series or Class of Notes. If such Rating Agency confirmation with respect to any Automatic Additional Accounts is not so received, such Automatic Additional Accounts will be removed from the Trust.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Daimlerchrysler Wholesale Receivables LLC), Sale and Servicing Agreement (Daimlerchrysler Master Owner Trust)
Addition of Accounts. (a) If (i) IfRFC III is required, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(aSection 2.09(a) of the Pooling and Servicing Agreement, to designate additional accounts to the Trust, or (Bii) elects to designate Additional Accounts RFC III elects, pursuant to Subsection 2.08(bSection 2.09(b) of the Pooling and Servicing Agreement, to designate additional accounts to the Trust, then in either case Funding mayRFC III, at its option, may give Capital One written notice thereof to Centurion; provided, however, that such notice shall be provided on or before the eighth (8th) Business Day prior to immediately preceding the Addition Date therefor, and upon related addition date. Upon receipt of such notice Capital One shall and on or before the Addition Dateprior to such addition date, Centurion shall designate sufficient Eligible Accounts as Aggregate Addition Accounts and shall sell to be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One mayRFC III the Purchased Assets related to such Aggregate Addition Accounts. In addition, at its option and with the consent of FundingRFC III, Centurion may designate newly originated Eligible Accounts as Aggregate Addition Accounts and sell to be included as Additional RFC III the Purchased Assets related to such Aggregate Addition Accounts.
(b) At its option and with the consent of RFC III, Centurion may designate Eligible Accounts as New Accounts and sell to RFC III the Purchased Assets related to such New Accounts. Centurion or RFC III, each at its option and by written notice to the other party at least ten (10) days in advance, may elect at any time to terminate the inclusion of new accounts which would otherwise be New Accounts as of any Business Day, to suspend any such inclusion as of any Business Day, or to resume any such inclusion as of any Business Day.
(c) On the Addition Date with respect to any designation of Additional Accounts, such Additional Accounts shall become Accounts, and Funding RFC III shall purchase Capital One’s Centurion's right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One as of the Addition Selection Date, such Additional Accounts shall be Eligible Accounts;
(ii) Centurion shall have delivered to Funding RFC III copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s RFC III's interest in the Receivables arising therein and the related Purchased Assets;
(iiiii) Centurion shall have delivered to RFC III all Collections with respect to such Additional Accounts since the Addition Cut-Off Date;
(iv) as of each of the Additional Addition Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One Centurion shall have occurred nor shall the sale of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding RFC III have been made in contemplation of the occurrence thereof;
(iiiv) Capital One in the case of Aggregate Addition Accounts, such addition will not have a material adverse effect on RFC III;
(vi) Centurion shall have delivered to Funding RFC III an Officer’s 's Certificate of Capital OneCenturion, dated the Addition Date, confirming, to the effect that extent applicable and in Centurion's reasonable belief, the items set forth in clauses (Ai) Capital One reasonably believes that through (v) above;
(vii) in the case of New Accounts, such addition will not, based on the facts known to such officer at the time of such certification, then not cause a Pay Pay-Out Event or a Reinvestment Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the additionAgreement;
(ivviii) Capital One Centurion shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and RFC III and, in the case of Aggregate Addition Accounts, shall have delivered to Funding RFC III the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));Aggregate Addition Accounts; and
(vix) Capital One Centurion and Funding RFC III shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “"Supplemental Conveyance”"); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) above.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (American Express Credit Account Master Trust), Receivables Purchase Agreement (American Express Credit Account Master Trust)
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated during any period of thirty consecutive days, the Transferor Interest averaged over that period is less than the Minimum Transferor Interest for that period the Transferor shall designate additional eligible MasterCard®, VISA® or American Express® accounts from the Bank Portfolio (“Additional Accounts”) to designate be included as Accounts in a sufficient amount such that the average of the Transferor Interest as a percentage of the Average Principal Receivables for such 30‑day period, computed by assuming that the amount of the Principal Receivables of such Additional Accounts pursuant shall be deemed to Subsection 2.08(a) be outstanding in the Trust during each day of such 30‑day period, is at least equal to the Pooling and Servicing AgreementMinimum Transferor Interest, or (B) elects on any Record Date the aggregate amount of Principal Receivables is less than the Minimum Aggregate Principal Receivables (as adjusted for any Series having a Companion Series as described in the Supplement for such Series), the Transferor shall designate Additional Accounts to designate be included as Accounts in a sufficient amount such that the aggregate amount of Principal Receivables will be equal to or greater than the Minimum Aggregate Principal Receivables. Receivables from such Additional Accounts shall be transferred to the Trustee on or before the tenth Business Day following such thirty‑day period or Record Date, as the case may be.
(ii) In lieu of, or in addition to, designating Additional Accounts pursuant to Subsection 2.08(bclause (i) above, the Transferor may, subject to any applicable conditions specified in paragraph (c) below, convey to the Trustee participations representing undivided interests in a pool of assets primarily consisting of receivables arising under revolving credit card accounts owned by the applicable Account Owner or any Affiliate of such Account Owner and collections thereon (“Participations”). The addition of Participations in the Trust pursuant to this paragraph (a) or paragraph (b) below shall be effected by an amendment hereto, dated as of the Pooling and Servicing Agreementapplicable Addition Date, then pursuant to subsection 13.01(a).
(b) In addition to its obligation under subsection 2.06(a), the Transferor may, but shall not be obligated to, designate from time to time Additional Accounts to be included as Accounts or Participations to be included as property of the Trust, in either case Funding mayas of the applicable Addition Date.
(c) The Transferor agrees that any such transfer of Receivables from Additional Accounts, at its option, give Capital One written notice thereof under subsection 2.06(a) or (b) shall satisfy the following conditions (to the extent provided below):
(i) on or before the eighth fifth Business Day prior to the Addition Date thereforwith respect to additions pursuant to subsection 2.06(a) and on or before the tenth Business Day prior to the Addition Date with respect to additions pursuant to subsection 2.06(b) (the “Notice Date”), the Transferor shall give the Trustee, each Rating Agency and upon receipt the Servicer written notice that such Additional Accounts or Participations will be included, which notice shall specify the approximate aggregate amount of such notice Capital One shall the Receivables to be transferred;
(ii) on or before the Addition Date, designate sufficient Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One Transferor shall have delivered to Funding copies the Trustee a written assignment (including an acceptance by the Trustee on behalf of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest the Trust for the benefit of the Investor Certificateholders) in substantially the Receivables arising therein form of Exhibit B (the “Assignment”) and the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One shall have occurred nor shall the sale of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One Transferor shall have indicated in its computer files that the Receivables created in connection with such the Additional Accounts have been transferred to the Trust and, within five Business Days thereafter, or as otherwise agreed upon among the Servicer, the Transferor and the related Purchased Assets have been sold to Funding and Trustee, the Transferor shall have delivered to Funding the Trustee the updated Account Schedule, which Account Schedule is true and complete as of the related Addition Date and which 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) with respect to Additional Accounts, each Additional Account is, as of the Addition Date, an Eligible Account, and each existing Receivable in such Additional Accounts Account is, as of the Addition Date, an Eligible Receivable, (y) it has not used any selection procedures believed by the Transferor to be materially adverse to the interests of the Investor Certificateholders in selecting the related Additional Accounts, and (z) as of the Addition Date, the Transferor is not insolvent;
(iv) the Transferor shall represent and warrant that, as of the Addition Date, the Assignment constitutes either (x) a valid sale to the Trustee of the Receivables in the case Additional Accounts, or (y) a grant of a security interest in favor of the Trustee in the Receivables in the Additional Accounts designated pursuant to Subsection 2.02(a)(i))Accounts, and that sale or security interest is perfected under the Delaware UCC;
(v) Capital One the Transferor shall deliver an Officer’s Certificate substantially in the form of Schedule 2 to Exhibit B to the Trustee confirming the items set forth in paragraphs (ii), (iii) and Funding (iv) above;
(vi) the Transferor shall have entered into deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to the Trustee (with a duly executedcopy to Xxxxx’x, written assignment, Standard & Poor’s and Fitch) substantially in the form of Exhibit A E;
(vii) (A) with respect to accounts in excess of the “Supplemental Conveyance”Maximum Addition Amount and with respect to Participations, the Transferor shall have received notice from Standard & Poor’s, Xxxxx’x and Fitch that the inclusion of such accounts as Additional Accounts pursuant to subsections 2.06(a) and 2.06(b) or the inclusion of such Participations to be included as property of the Trust pursuant to subsections 2.06(a) and 2.06(b), as the case may be, will not result in the reduction or withdrawal of its then existing rating of any Series of Investor Certificates then issued and outstanding; and (B) with respect to accounts not in excess of the Maximum Addition Amount added during the last quarterly period (such quarterly period beginning on and including the fifteenth day of January, April, July, and October and ending on and excluding the fifteenth day of April, July, October, and January, respectively), if applicable, the Transferor shall have received, to the extent not previously received, not later than twenty days after the relevant quarterly period, notice from Standard & Poor’s, Xxxxx’x and Fitch that the inclusion of such accounts as Additional Accounts pursuant to subsections 2.06(a) and 2.06(b) will not result in the reduction or withdrawal of its then existing rating of any Series of Investor Certificates then issued and outstanding; and
(viviii) Capital One the Transferor shall have delivered provide each Rating Agency 30 days’ prior notice of the inclusion of any business cards as Additional Accounts pursuant to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) abovesubsection 2.06(b).
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (BA Credit Card Trust), Pooling and Servicing Agreement (BA Master Credit Card Trust II)
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) as of the Pooling and Servicing Agreementclose of business on the last Business Day of any Monthly Period, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) the aggregate amount of Principal Receivables is less than the Pooling and Servicing AgreementRequired Principal Balance on such date, then in either case Funding may, at its option, give Capital One written notice thereof the Seller shall on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt close of business on the 10th Business Day following the last Business Day of such notice Capital One shall Monthly Period (the "Required Designation Date"), unless the aggregate amount of Principal Receivables exceeds the Required Principal Balance as of the close of business on or before any day after the Addition last Business Day of such Monthly Period and prior to the Required Designation Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Fundingof the Required Designation Date or any earlier date in a sufficient amount such that, after giving effect to such addition, the aggregate amount of Principal Receivables equals or exceeds the Required Principal Balance on such date. Each such addition shall be subject to the same conditions applicable to any Addition required to be made pursuant to Section 2.08(a) of the Agreement. The failure of any condition set forth in Section 2.08(c) or (d) of the Agreement, as the case may be, shall not relieve the Seller of its obligation pursuant to this paragraph; provided, however, -------- ------- that the failure of the Seller to transfer Receivables to the Trust as provided in this paragraph solely as a result of the unavailability of a sufficient amount of Eligible Receivables shall not constitute a breach of this Supplement; provided further, that any such failure which has not been -------- ------- timely cured will nevertheless result in the occurrence of a Pay Out Event with respect to Series 1998-1.
(ii) AdditionallyIn lieu of, Capital One mayor in addition to, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, such designating Additional Accounts shall become Accountspursuant to clause (i) above, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01Seller may, subject to the satisfaction conditions specified in Section 2.03(d) of the following conditions on such Addition Date:
(i) Capital One shall have delivered Agreement, convey to Funding copies the Trust Participation Interests. The addition of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest Participation Interests in the Receivables arising therein Trust pursuant to this paragraph shall be effected by an amendment to the Agreement and this Supplement, dated the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the applicable Addition Date, no Insolvency Event with respect pursuant to Capital One shall have occurred nor shall the sale Section 13.01(a) of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) aboveAgreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Capital One Financial Corp), Pooling and Servicing Agreement (Capital One Master Trust)
Addition of Accounts. (a) (i) If, The Seller may from time to time, Funding (A) becomes obligated time offer to voluntarily designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts (including Partial Accounts) to be included as Additional Accounts as requested by Funding.
(ii) AdditionallyAccounts, Capital One may, at its option and with subject to the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
conditions specified in paragraph (b) On below. If any such offer is accepted by the Addition Date with respect to any designation of Additional AccountsBuyer, Receivables and Collateral Security from such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject be sold to the satisfaction of Buyer effective on a date (the following conditions on such "Addition Date:
") specified in a written notice provided by the Seller (ior the Servicer on its behalf) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein Buyer and the related Purchased Assets;
(ii) as of each of any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than 30th day prior to the related Addition Date (the `Notice Date, no Insolvency Event with respect "). The Addition Notice shall also specify whether such Additional Accounts are Partial Accounts.
(b) The Seller shall be permitted to Capital One shall have occurred nor shall convey to the sale Buyer the Receivables and all Collateral Security related thereto in any Additional Accounts designated by the Seller as such pursuant to Section 2.04(a) only upon satisfaction of each of the Receivables arising in following conditions on or prior to the related Addition Date:
(i) The Seller shall provide the Buyer and any Enhancement Providers with a timely Addition Notice.
(ii) Such Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;shall all be Eligible Accounts.
(iii) Capital One The Seller shall have delivered to Funding the Buyer a duly executed written assignment (including an Officer’s Certificate of Capital One, dated acceptance by the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (BBuyer) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”)"Assignment") and the computer file microfiche or written list required to be delivered pursuant to Section 2.01.
(iv) The Seller shall have delivered to the Buyer for deposit in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut-Off Date.
(v) (A) No selection procedures believed by the Seller to be adverse to the interests of the Buyer or the Beneficiaries were used in selecting such Additional Accounts; and(B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, neither the Seller, the Buyer nor the Servicer are insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency.
(vi) Capital One The Rating Agency Condition shall have been satisfied.
(vii) The addition of the Receivables arising in such Additional Accounts shall not result in the occurrence of an Early Amortization Event.
(viii) The Seller shall have delivered to Funding an Officer’s Certificate the Buyer and any Enhancement Providers a certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, a Vice President or more senior officer confirming the items set forth in clauses paragraphs (iii) through (vvii) above.
(ix) On or before each Addition Date, the Seller shall deliver to the Buyer and any Enhancement Providers an opinion of counsel with respect to the Receivables in the Additional Accounts substantially in the form of Exhibit B.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Daimlerchrysler Wholesale Receivables LLC), Pooling and Servicing Agreement (Daimlerchrysler Wholesale Receivables LLC)
Addition of Accounts. (a) By a written assignment supplementing this Agreement (except in the case of Additional Accounts listed on the Account Schedule delivered on or prior to the Amendment Closing Date), the Transferor in its sole discretion may designate Additional Accounts for automatic inclusion in the Trust, and all Receivables in such Additional Accounts, whether such Receivables are then existing or thereafter created, shall be transferred automatically to the Trustee pursuant to Section 2.1 and such assignment.
(b) Notwithstanding the foregoing, the Transferor may elect at any time, or may be required pursuant to subsection 2.6(g), to suspend the automatic inclusion of Additional Accounts on any Business Day (the "Automatic Addition Suspension Date"), or terminate any such inclusion on any Business Day (an "Automatic Addition Termination Date") until a date (the "Restart Date") to be identified in writing by the Transferor to the Trustee, the Servicer and each Rating Agency at least 10 days prior to such Restart Date. Promptly after an Automatic Addition Suspension Date or any Automatic Addition Termination Date, or a Restart Date, the Transferor and the Trustee agree to authorize and the Transferor agrees to record and file at its own expense an amendment to the financing statements referred to in Section 2.1 hereof (if necessary) to specify the accounts then subject to this Agreement (which specification may incorporate a list of accounts by reference) and may, except in connection with any such filing made after a Restart Date, release any security interest in any accounts created after the Automatic Addition Suspension Date or any Automatic Addition Termination Date.
(c) If the Transferor has elected to terminate or suspend the inclusion of Additional Accounts and (i) Ifon the tenth Business Day prior to any Determination Date, from time the Transferor Interest for the related Monthly Period is less than the Minimum Transferor Interest, the Transferor shall designate Supplemental Accounts to time, Funding (A) becomes obligated to designate Additional be included as Accounts pursuant to Subsection 2.08(a) in a sufficient amount such that the Transferor Interest as a percentage of the Pooling and Servicing AgreementAggregate Principal Receivables for such Monthly Period after giving effect to such addition is at least equal to the Minimum Transferor Interest, or (B) elects on any Record Date, the Aggregate Principal Receivables is less than the Minimum Aggregate Principal Receivables, the Transferor shall designate Supplemental Accounts to designate Additional be included as Accounts pursuant in a sufficient amount such that the Aggregate Principal Receivables will be equal to Subsection 2.08(b) of or greater than the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof Minimum Aggregate Principal Receivables. Receivables from such Supplemental Accounts shall be transferred to the Trust on or before the eighth tenth Business Day following such Record Date.
(d) In addition to its obligation under subsection 2.6(c), the Transferor may, but shall not be obligated to, subject to the conditions specified under subsection 2.6(e), designate from time to time Supplemental Accounts to be included as Accounts.
(e) Unless otherwise specified in a Series Supplement, the Transferor agrees that any such transfer of Receivables in Supplemental Accounts, under subsection 2.6(c) or (d), shall satisfy the following conditions (to the extent provided below):
(i) on or before the fifth Business Day prior to the Addition Date therefor, with respect to additions pursuant to subsection 2.6(c) and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient Eligible Accounts tenth Business Day prior to be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation additions pursuant to subsection 2.6(d) (as applicable, the "Notice Date"), the Transferor shall give the Trustee, each Rating Agency and the Servicer written notice that such Supplemental Accounts will be included, which notice shall specify the approximate aggregate amount of Additional Accounts, such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assetsbe transferred;
(ii) as of each of on or before the Additional Cut-Off Date and the applicable Addition Date, no Insolvency Event with respect to Capital One the Transferor and the Trustee shall have occurred nor shall executed a written assignment in substantially the sale form of Exhibit H (the Receivables arising in the Additional Accounts "Assignment") and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One Transferor shall have indicated in its computer files that the Receivables created in connection with the Supplemental Accounts have been transferred to the Trustee by identifying such Additional Supplemental Accounts in its master file maintained in its computer files with the designation portfolio ID 0001 and the related Purchased Assets have been sold to Funding and Transferor shall have delivered to Funding the Trustee an Account Schedule pursuant to Section 2.1;
(iii) the Transferor shall represent and warrant that (x) no selection procedure that is materially adverse to the interests of the Investor Securityholders was utilized in selecting the Supplemental Accounts and (y) on the applicable Addition Date, the Transferor is not insolvent and will not be rendered insolvent upon the transfer of Receivables to the Trust;
(iv) the Transferor shall represent and warrant that, on the Addition Date, the Assignment constitutes either (x) a valid transfer and assignment to the Trustee of all right, title and interest of the Transferor in and to (A) the Receivables then existing and thereafter created and arising in connection with the Supplemental Accounts and the proceeds thereof, and such Receivables and all proceeds thereof will be held by the Trustee free and clear of any Lien of any Person claiming through or under the Transferor, except for (i) Permitted Liens, (ii) the interest of the Transferor as Holder of the Exchangeable Transferor Security and any other Class or Series of Securities and (iii) the Transferor's right, if any, to receive interest accruing on, and investment earnings, if any, in respect of, any Interest Funding Account and any Principal Account, the Excess Funding Account or any Series Account as provided in this Agreement and any related Supplement or (y) 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, which is enforceable with respect to then existing Receivables of the Supplemental Accounts and the proceeds (as defined in the UCC as in effect in the Relevant UCC State) thereof upon the conveyance of such Receivables to the Trustee, and which will be enforceable with respect to the Receivables thereafter created in respect of Supplemental Accounts designated on such Addition Date and the proceeds (as defined in the UCC as in effect in the Relevant UCC State) thereof upon such creation; and (z) if the Assignment constitutes the grant of a security interest to the Trustee in such property, upon the filing of a financing statement as described in Section 2.1 with respect to such Additional Supplemental Accounts (and in the case of Additional the Receivables thereafter created in such Supplemental Accounts designated pursuant to Subsection 2.02(a)(i))and the proceeds (as defined in the UCC as in effect in the Relevant UCC State) thereof, upon such creation, the Trustee shall have a first priority perfected security interest in such property, except for Permitted Liens;
(v) Capital One and Funding the Transferor shall have entered into deliver to the Trustee an Officer's Certificate of the Transferor substantially in the form of Schedule 2 to Exhibit H confirming the items set forth in paragraph (ii) above;
(vi) the Transferor shall deliver to the Trustee an Opinion of Counsel with respect to the Receivables in the Supplemental Accounts (with a duly executed, written assignment, copy to the Rating Agencies) substantially in the form of Exhibit A (the “Supplemental Conveyance”)I; and
(vivii) Capital One unless the Transferor shall have received written notice from each Rating Agency that the inclusion of such accounts as Supplemental Accounts pursuant to subsection 2.6(c) or (d), as the case may be, will not result in the reduction or withdrawal of its then existing rating of any Class of any Series of Investor Securities then issued and outstanding and shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, such notice to the extent applicableTrustee, the items set forth number of Supplemental Accounts the Receivables of which are designated to be included in the Trust pursuant to subsection 2.6(c) or (d) since (A) the first day of the eleventh preceding Monthly Period minus the number of Accounts of the type described in clause (ii) of the definition of "Approved Account" which have been added to the Trust since the first day of such eleventh preceding Monthly Period, shall not exceed 20% of the number of Accounts on the first day of such eleventh preceding Monthly Period, and (B) the first day of the second preceding Monthly Period minus the number of Accounts of the type described in clause (ii) of the definition of "Approved Account" which have been added to the Trust since the first day of such second preceding Monthly Period, shall not exceed 15% of the number of Accounts on the first day of such second preceding Monthly Period; provided, however, that the aggregate principal balance in the Supplemental Accounts specified (y) in clause (A) above shall not exceed the product of (i) 20% and (ii) the Aggregate Principal Receivables determined as of the first day of the eleventh preceding Monthly Period and (z) in clause (B) above shall not exceed the product of (i) 15% and (ii) the Aggregate Principal Receivables determined as of the first day of the second preceding Monthly Period; provided further, however, that the Supplemental Accounts specified in clauses (A) and (B) above shall not include Accounts not initially originated by DMCCB, its successors or assigns, or any Affiliate thereof; provided further, however, that the first and second provisos to this subsection 2.6(e)(vii) may be changed or eliminated at any time if the Transferor shall have received written notice from each Rating Agency that such action will not result in the reduction or withdrawal of its then existing rating of any Class of any Series of Investor Securities then issued and outstanding and shall have delivered such notice to the Trustee.
(f) The Transferor shall be permitted to designate Additional Accounts with respect to any Monthly Period (the "Current Monthly Period") prior to the last day of the May 1996 Monthly Period pursuant to subsection 2.6(a) of the Agreement, without limitation, provided, however, that with respect to each Monthly Period beginning with the September 1995 Monthly Period:
(i) through the arithmetic average for the three Monthly Periods preceding the Current Monthly Period, of the annualized percentage equivalent of a fraction for each respective Monthly Period, the numerator of which is equal to the Default Amount for the respective Monthly Period (vprovided, however, that the Default Amount with respect to each Default Recognition Date shall be deemed to apply to the Monthly Period ending closest to such Default Recognition Date) aboveand the denominator of which is equal to the average amount of Aggregate Principal Receivables outstanding on each day during such Monthly Period, is less than 6%;
(ii) the arithmetic average for the three Monthly Periods preceding the Current Monthly Period, of the percentage (the "Payment Rate Percentage") equivalent of a fraction for each respective Monthly Period, the numerator of which is equal to the amount of Collections received during the respective Monthly Period and the denominator of which is equal to the Aggregate Principal Receivables as of the first day of the respective Monthly Period, is greater than or equal to 6%;
(iii) the weighted average of the Portfolio Yields for each Series then outstanding for the three Monthly Periods preceding the Current Monthly Period minus the weighted average of the Base Rates for each Series then outstanding for such three Monthly Periods (the "Excess Spread Percentage") is greater than or equal to 4%; or
(iv) Standard & Poor's shall not have notified the Transferor that the continued addition of Additional Accounts pursuant to this subsection 2.6(f) will result in a reduction or withdrawal of the then current rating of any Class by Standard & Poor's.
(g) shall apply. On or before the later of (x) the last day of the September 1995 Monthly Period, the December 1995 Monthly Period and the March 1996 Monthly Period or (y) in each case the tenth day following receipt of the settlement statement for the prior Monthly Period, Standard & Poor's shall determine whether a Ratings Event shall have occurred in connection with the addition of Additional Accounts during the three consecutive Monthly Periods ending in August, November and February preceding such date. Upon the occurrence of a Ratings Event in connection with the addition of Additional Accounts this subsection 2.6(f) shall no longer apply and the conditions of subsection 2.6(g) shall apply.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Metris Master Trust)
Addition of Accounts. (a) (i) If, Each Seller may from time to time, Funding (A) becomes obligated time -------------------- offer to voluntarily designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) AdditionallyAccounts, Capital One may, at its option and with subject to the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
conditions specified in paragraph (b) On below. If any such offer is accepted by the Addition Date with respect to any designation of Additional AccountsBuyer, Receivables and Collateral Security, if any, from such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject be sold to the satisfaction of Buyer (or contributed to the following conditions Buyer in accordance with Section 2.1) effective on such a date (the "Addition Date:
") ------------- specified in a written notice provided by the Seller (ior the Servicer on its behalf) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein Buyer and the related Purchased Assets;
(ii) as of each of any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition -------- Notice") on or before the fifth Business Day but not more than the 30th day ------ prior to the related Addition Date or, if the Automatic Addition Condition is satisfied, on the Determination Date following the Collection Period in which such Addition Dates occur (the "Notice Date"). An Addition Notice may relate to ----------- one or more Accounts on one or more Addition Dates.
(b) Each Seller shall be permitted to convey to the Buyer the Receivables and all Collateral Security, no Insolvency Event if any, related thereto in any Additional Accounts designated by such Seller as such pursuant to Section 2.4(a) only upon satisfaction of each of the following conditions on or prior to the related Addition Date (except for the condition in clause (vii), if applicable, which shall be satisfied on or before the tenth Business Day after such Notice Date):
(i) Such Seller shall provide the Buyer and any Enhancement Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) Such Seller shall have delivered to the Buyer a duly executed written assignment (including an acceptance by the Buyer) covering the Receivables specified in the Addition Notice in substantially the form of Exhibit A modified, if applicable, to reflect contributions to (and by) the general partner of the Buyer (the "Assignment") and the computer file or ---------- microfiche or written list required to be delivered pursuant to Section 2.1.
(iv) Such Seller shall have delivered to the Buyer for deposit in the Collection Account all Collections with respect to Capital One such Additional Accounts since the Additional Cut-Off Date.
(v) (A) No selection procedures believed by such Seller to be adverse to the interests of the Buyer or the Beneficiaries were used in selecting such Additional Accounts; (B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, neither such Seller, the Buyer nor the servicer are insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency.
(vi) If the Automatic Addition Condition is not satisfied with respect to such addition, the Rating Agency Condition shall have occurred nor been satisfied with respect to such addition.
(vii) If (A) one or more of the Additional Accounts specified in such Addition Notice will contain Receivables secured by a security interest in a type of Product that has not been previously financed in the Floorplan Business or (B) one or more of the Additional Accounts is supported by a Floorplan Agreement with a Manufacturer that, as of the related Addition Date, is not an Existing Manufacturer, then, whether or not the Automatic Condition is satisfied, the Rating Agency Condition shall have been satisfied in respect of the sale addition of each Additional Account specified in clauses (A) and (B) on or prior to the related Addition Date.
(viii) The addition of the Receivables arising in the such Additional Accounts and the related Purchased Assets to Funding have been made shall not result in contemplation of the occurrence thereof;of an Early Amortization Event.
(iiiix) Capital One Such Seller shall have delivered to Funding an Officer’s Certificate the Buyer and any Enhancement Providers a certificate of Capital One, dated a Vice President or more senior officer confirming the Addition Date, items set forth in paragraphs (ii) through (vi) and (viii) above.
(x) Such Seller shall have delivered to the effect that Trustee and any Enhancement Providers (A) Capital One reasonably believes that such addition will not, based on an Opinion of Counsel with respect to the facts known to such officer at Receivables in the time Additional Accounts added since the last delivery of such certification, then cause a Pay Out Event under opinion substantially in the Pooling and Servicing Agreement or any event form of Exhibit G-2 to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) except in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created an addition in connection with such Additional Accounts an addition of Receivables by the Buyer to the Trust required by Section 2.5(a) of the Pooling and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule Servicing Agreement, a Tax Opinion with respect to such Additional Accounts addition; provided that if such Opinion of Counsel and Tax Opinion are required to be delivered, they shall be rendered by outside counsel no less frequently than quarterly.
(c) Each Seller hereby represents and warrants as of the applicable Addition Date as to the matters set forth in Section 2.4(b)(v). The representations and warranties set forth in Section 2.4(b)(v) shall survive the case sale and assignment of the respective Receivables and Collateral Security, if any, to the Buyer. Upon discovery by either Seller or the Buyer of a breach of any of the foregoing representations and warranties, the party discovering the breach shall give prompt written notice to the other parties and to any Enhancement Providers.
(d) Notwithstanding anything in this Section 2.4 to the contrary, the additions of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) above.Section
Appears in 1 contract
Samples: Receivables Contribution and Sale Agreement (Deutsche Floorplan Receivables L P)
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) as of the Pooling and Servicing Agreementclose of business on the last Business Day of any Monthly Period, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) the aggregate amount of Principal Receivables is less than the Pooling and Servicing AgreementRequired Principal Balance on such date, then in either case Funding may, at its option, give Capital One written notice thereof the Seller shall on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt close of business on the 10th Business Day following the last Business Day of such notice Capital One shall Monthly Period (the "Required Designation Date"), unless the aggregate amount of Principal Receivables exceeds the Required Principal Balance as of the close of business on or before any day after the Addition last Business Day of such Monthly Period and prior to the Required Designation Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Fundingof the Required Designation Date or any earlier date in a sufficient amount such that, after giving effect to such addition, the aggregate amount of Principal Receivables equals or exceeds the Required Principal Balance on such date. Each such addition shall be subject to the same conditions applicable to any Addition required to be made pursuant to Section 2.08(a) of the Agreement. The failure of any condition set forth in Section 2.08(c) or (d) of the Agreement, as the case may be, shall not relieve the Seller of its obligation pursuant to this paragraph; provided, however, -------- ------- that the failure of the Seller to transfer Receivables to the Trust as provided in this paragraph solely as a result of the unavailability of a sufficient amount of Eligible Receivables shall not constitute a breach of this Supplement; provided further, that any such failure which has not been -------- ------- timely cured will nevertheless result in the occurrence of a Pay Out Event with respect to Series 1998-4.
(ii) AdditionallyIn lieu of, Capital One mayor in addition to, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, such designating Additional Accounts shall become Accountspursuant to clause (i) above, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01Seller may, subject to the satisfaction conditions specified in Section 2.03(d) of the following conditions on such Addition Date:
(i) Capital One shall have delivered Agreement, convey to Funding copies the Trust Participation Interests. The addition of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest Participation Interests in the Receivables arising therein Trust pursuant to this paragraph shall be effected by an amendment to the Agreement and this Supplement, dated the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the applicable Addition Date, no Insolvency Event with respect pursuant to Capital One shall have occurred nor shall the sale Section 13.01(a) of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) aboveAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Capital One Master Trust)
Addition of Accounts. (a) With the consent of RFC, the Seller may, but shall not be obligated to, designate from time to time Additional Accounts of the Seller to be included as Accounts.
(b) The Seller shall be permitted to designate and sell Receivables from Additional Accounts to RFC only upon satisfaction of the following conditions:
(i) IfOn or before the tenth Business Day prior to the Additional Account Closing Date, the Seller shall give RFC 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 Seller shall have delivered to RFC a written assignment (and RFC shall have accepted such assignment) in substantially the form of Exhibit A (the "Assignment") and shall have clearly indicated in its computer files that the Receivables created in connection with the Additional Accounts have been sold to RFC and the Seller shall have delivered to RFC a computer file or microfiche list represented by the Seller 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 or microfiche list shall be as of the date of such Assignment incorporated into and made a part of such Assignment and this Agreement;
(iii) The Seller shall represent and warrant that (x) each Additional Account was, as of the date of its selection (the "Additional Account Selection Date"), an Eligible Account, (y) no selection procedures believed by the Seller to be materially adverse to the interests of RFC, any Series of Investor Certificateholders or any Enhancement Provider were utilized in selecting the Additional Accounts from time the available Eligible Accounts in the Seller's portfolio; and (z) as of the Additional Account Closing Date, the Seller is not insolvent and will not be made insolvent by the transfer of the Receivables of such Additional Accounts;
(iv) The Seller shall represent and warrant, that, as of the Additional Account Closing Date, the Assignment constitutes a valid sale and assignment to timeRFC of all right, Funding title and interest of the Seller 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 the proceeds thereof to the extent set forth in Section 9-306 of the UCC in effect in the Relevant UCC State of such Receivables, and such Receivables and all proceeds thereof will be conveyed to RFC free and clear of any Lien of any Person claiming through or under the Seller or any of its Affiliates, except for Liens permitted under Section 12(b) hereunder;
(Av) becomes obligated The Seller shall deliver to designate RFC an Officer's Certificate confirming the items set forth in paragraphs (ii), (iii) and (iv) above and (vii) below and RFC 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 Seller shall deliver to RFC an Opinion of Counsel with respect to the Receivables in the Additional Accounts substantially in the form of Exhibit C hereto; and
(vii) The Rating Agencies shall have received ten (10) Business Days' notice, and RFC shall have received three Business Days' notice, of such proposed addition of Accounts; if such Accounts are being added in connection with an addition of Accounts pursuant to Subsection 2.08(asubsection 2.06(b) of the Pooling and Servicing Agreement, the Seller shall have received written notice from Moody's (if Moody's shall then be a Rating Agency) that such addition would not result in a downgrading or (B) elects to designate withdrawal of the then current rating of any outstanding Series of Investor Certificates; and, in the event that the number of Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date designated with respect to any designation three consecutive Due Periods would exceed 15% of the number of Accounts as of the first day of the calendar year during which such Due Periods commence (or the Cut-Off Date, in the case of 1992) or the number of Additional AccountsAccounts designated during any such calendar year would exceed 20% of the number of Accounts as of the first day of such calendar year (or the Cut-Off Date, in the case of 1992), the Seller shall have received written confirmation from Standard & Poor's (if Standard & Poor's shall then be a Rating Agency) that such addition would not result in a downgrade or withdrawal of its then current rating of any outstanding Series of Investor Certificates. Upon satisfaction of the above conditions, the Seller shall execute and deliver the Assignment to RFC, and the Receivables from the Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, be sold to and under the Receivables in such Additional Accounts and the related Purchased Assets RFC as provided in Section 2.01, subject to the satisfaction 1 of the following conditions on such Addition Date:
(i) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One shall have occurred nor shall the sale of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) aboveAgreement.
Appears in 1 contract
Samples: Receivable Purchase Agreement (American Express Centurion Bank)
Addition of Accounts. (a) (i) If, from time to time, Funding (A) If the Purchaser becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(aunder Section 2.6(a) of the Pooling and Servicing Agreement, or (B) elects Restated Agreement to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts to be included as Accounts and has notified the Seller of such obligation, then the Seller shall designate additional Eligible Accounts (the "Additional Accounts") to be ------------------- included as Accounts in an amount such that, after giving effect to such designation, the Purchaser can satisfy such obligation. The Additional Accounts shall be included as requested by Funding.Accounts pursuant to this Section 2.2(a) on the date on which such Additional Accounts are to be included as Accounts pursuant to Section 2.6(a) of the Restated Agreement (the "Additional Account Closing -------------------------- Date"). ----
(iib) AdditionallyIn addition to its obligation under Section 2.2(a), Capital One the Seller may, at its option and with the consent of Fundingbut shall not be obligated to, designate newly originated Eligible from time to time Additional Accounts to be included as Accounts as of the related Additional AccountsAccount Closing Date.
(bc) On the Addition Date with respect to The Seller agrees that any designation of Additional Accounts, such Receivables in Additional Accounts under Section 2.2(a) or (b) shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of satisfy the following conditions on such Addition Dateconditions:
(i) Capital One On or before the fifth Business Day prior to the Additional Account Closing Date, the Seller shall have delivered to Funding copies given the Purchaser and the Servicer written notice that the Additional Accounts will be included as Accounts and specifying the approximate aggregate amount of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assetsto be transferred;
(ii) as On or before the Additional Account Closing Date, the Seller shall have delivered to the Purchaser (and the Purchaser shall have accepted) a written assignment substantially in the form of each Exhibit B (the --------- "Supplemental Conveyance") and shall have clearly indicated in its computer ----------------------- files that the Receivables created in connection with the Additional Accounts have been sold to the Purchaser and the Seller shall have delivered to the Purchaser a computer file or microfiche list represented by the Seller to contain a true and complete list of the Additional Cut-Off Date Accounts identified by account number and the Addition Date, no Insolvency Event with respect to Capital One shall have occurred nor shall the sale of the Receivables arising by Receivable balance in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation as of the occurrence thereofAdditional Account Cut-Off Date, which computer file or microfiche list shall be as of the date of such Supplemental Conveyance incorporated into and made a part of such Supplemental Conveyance and this Agreement;
(iii) Capital One The Seller shall have delivered to Funding an Officer’s Certificate represent and warrant that (x) each Additional Account was, as of Capital One, dated the Addition Additional Account Cut-Off Date, to the effect that an Eligible Account, (Ay) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized procedures believed by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would Seller to be materially adverse to the interests of Funding the Investor Certificateholders or any Enhancement Provider were used in selecting the Additional Accounts from the available Eligible Accounts in the Seller's portfolio of MasterCard and VISA credit card accounts, and (z) as of the date Additional Account Closing Date, the Seller is not insolvent and will not be made insolvent by the sale of the additionReceivables in the Additional Accounts;
(iv) Capital One The Seller shall have indicated represent and warrant that, as of the Additional Account Closing Date, the Supplemental Conveyance constitutes a valid sale to the Purchaser of all right, title and interest of the Seller in its computer files that and to the Receivables then existing and thereafter created in connection with such the Additional Accounts Accounts, all monies due or to become due and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule all amounts received with respect thereto on or after the Additional Account Cut-Off Date and all proceeds thereof (to such Additional Accounts (the extent set forth in Section 9-315 of the UCC as in effect in the case Relevant UCC State), and such Receivables and all proceeds thereof will be transferred to the Purchaser free and clear of Additional Accounts designated pursuant to Subsection 2.02(a)(iany Lien of any Person claiming through or under the Seller or any of its Affiliates, except for Liens permitted under Section 5.1(b));.
(v) Capital One The Seller shall deliver to the Purchaser an Officer's Certificate confirming the items set forth in paragraphs (iii) and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”)iv) above and paragraph (vi) below; and
(vi) Capital One The Seller shall have record and file (and does hereby authorize the Purchaser to record and file) financing statements with respect to the Receivables then existing and thereafter created in the Additional Accounts for the sale of accounts (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 sale, transfer and assignment of the Receivables in the Additional Accounts by the Seller to the Purchaser.
(d) The Seller may, but shall not be obligated to, designate from time to time additional consumer revolving credit card accounts (the "Automatic --------- Additional Accounts") to be included as Accounts by causing such Accounts to be ------------------- identified in the Seller's master computer files by the four digit identifying code number 2003, 2004, 2009, 3101, 3102, 3103, 3104, 3312, 3313, 3314, 3315, 3316, 3317, 4951, 4952, 4954, 4955, 4957 or 4969 and in the computer file or microfiche list delivered to Funding an Officer’s Certificate the Purchaser by the Seller with respect to such Accounts pursuant to Section 2.1(d). For purposes of Capital Onethis Section 2.2(d), dated Automatic Additional Accounts shall be deemed to include only Eligible Accounts (x) of a type included as Accounts on the Addition Date, confirming, Closing Date or any Additional Account Closing Date (but only if such Additional Account Closing Date related to Additional Accounts added pursuant to Section 2.2(a)) or consented to in writing by each Rating Agency and (y) not prohibited from being included as Accounts pursuant to the extent applicableterms of any Supplement. If the Purchaser becomes obligated to designate Additional Accounts under Section 2.6(d)(ii) of the Restated Agreement and the Purchaser has notified the Seller of such obligation, then the Seller shall designate Additional Accounts to be included as Accounts in an amount such that, after giving effect to such designation, the items set forth Purchaser can satisfy such obligation. The Seller shall record and file (and does hereby authorize the Purchaser to record and file), at the expense of the Seller, financing statements (and continuation statements with respect to such financing statements when applicable) with respect to the Receivables then existing and thereafter created in clauses the Automatic Additional Accounts for the sale of accounts (ias defined in the UCC as in effect in the Relevant UCC State) through (v) abovemeeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the sale of such Receivables by the Seller to the Purchaser, and to deliver a file-stamped copy of such financing statements or other evidence of such filings to the Purchaser.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Fnanb Credit Card Master Trust)
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes the Transferors become obligated to designate Additional Accounts (as such term is defined in the Transfer and Servicing Agreement) pursuant to Subsection 2.08(asubsection 2.09(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling Transfer and Servicing Agreement, then in either case Funding CFC may, at its option, give Capital One Servicing Corp. written notice thereof on or before the eighth Business Day (the "Addition Notice Date") prior to the Addition Date therefor, and upon receipt of such notice Capital One shall Servicing Corp. may, in its sole discretion, on or before the Addition Date, designate sufficient Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One may, at its option and so that after the inclusion thereof the Transferors will be in compliance with the consent requirements of Fundingsaid subsection 2.09(a). In addition, by mutual agreement of Servicing Corp. and CFC, subject to compliance with the conditions and restrictions specified in subsection 2.09 (c) or subsections (d) and (e) of the Transfer and Servicing Agreement, Servicing Corp. may designate newly originated Eligible Accounts accounts to be included as Additional Accounts. Upon such designation, such account shall be deemed to be Additional Accounts hereunder. Servicing Corp. shall cooperate with CFC to enable CFC to comply with the requirements of Section 2.09 of the Transfer and Servicing Agreement and shall cooperate with CFC to enable CFC to perform with respect to the Receivables in such Additional Accounts all actions specified in Section 2.09(c) or (e) of the Transfer and Servicing Agreement. In either event, Servicing Corp. shall have sole responsibility for selecting the Additional Accounts and shall determine and notify CFC of the Additional Cut-Off Date with respect to such Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, such Additional Accounts shall become Accounts, and Funding CFC shall purchase Capital One’s Servicing Corp.'s right, title and interest in, to and under the Receivables in Additional Accounts (as of the Additional Cut-Off Date) (and such Additional Accounts and the related Purchased Assets as provided in Section 2.01shall be deemed to be Accounts for purposes of this Agreement), subject to the satisfaction of the following conditions on such Addition Dateconditions:
(i) Capital One all Additional Accounts shall be Eligible Accounts;
(ii) Servicing Corp. shall have delivered to Funding CFC copies of UCC UCC-1 financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in CFC's ownership of the Receivables arising therein and the related Purchased Assetstherein;
(iiiii) to the extent required of CFC by subsection 2.09(c) or 2.09(e) of the Transfer and Servicing Agreement, Servicing Corp. shall have deposited in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut-Off Date;
(iv) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One Servicing Corp. shall have occurred nor shall the sale transfer to CFC of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iiiv) Capital One Servicing Corp. shall have delivered to Funding CFC an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One's Certificate, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (viv) above; and
(vi) the transfer of the Receivables arising in the Additional Accounts to CFC and by CFC to the Issuer will not result in an Adverse Effect and Servicing Corp. shall have delivered to CFC an Officer's Certificate, dated the Addition Date, stating that Servicing Corp. reasonably believes that the transfer of the Receivables arising in the Additional Accounts to CFC and by CFC to the Issuer will not have an Adverse Effect.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Conseco Finance Credit Card Funding Corp)
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) as of the Pooling and Servicing Agreementclose of business on the last Business Day of any Monthly Period, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) the aggregate amount of Principal Receivables is less than the Pooling and Servicing AgreementRequired Principal Balance on such date, then in either case Funding may, at its option, give Capital One written notice thereof the Seller shall on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt close of business on the 10th Business Day following the last Business Day of such notice Capital One shall Monthly Period (the "Required Designation Date"), unless the aggregate amount of Principal Receivables exceeds the Required Principal Balance as of the close of business on or before any day after the Addition last Business Day of such Monthly Period and prior to the Required Designation Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Fundingof the Required Designation Date or any earlier date in a sufficient amount such that, after giving effect to such addition, the aggregate amount of Principal Receivables equals or exceeds the Required Principal Balance on such date. Each such addition shall be subject to the same conditions applicable to any Addition required to be made pursuant to Section 2.08(a) of the Agreement. The failure of any condition set forth in Section 2.08(c) or (d) of the Agreement, as the case may be, shall not relieve the Seller of its obligation pursuant to this paragraph; provided, however, -------- ------- that the failure of the Seller to transfer Receivables to the Trust as provided in this paragraph solely as a result of the unavailability of a sufficient amount of Eligible Receivables shall not constitute a breach of this Supplement; provided further that any such failure which has not been -------- ------- timely cured will nevertheless result in the occurrence of a Pay Out Event with respect to Series 1999-1.
(ii) AdditionallyIn lieu of, Capital One mayor in addition to, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, such designating Additional Accounts shall become Accountspursuant to clause (i) above, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01Seller may, subject to the satisfaction conditions specified in Section 2.03(d) of the following conditions on such Addition Date:
(i) Capital One shall have delivered Agreement, convey to Funding copies the Trust Participation Interests. The addition of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest Participation Interests in the Receivables arising therein Trust pursuant to this paragraph shall be effected by an amendment to the Agreement and this Supplement, dated the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the applicable Addition Date, no Insolvency Event with respect pursuant to Capital One shall have occurred nor shall the sale Section 13.01(a) of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) aboveAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement Supplement (Capital One Master Trust)
Addition of Accounts. (a) If during any period of 30 consecutive days, the JCPR Amount averaged over that period is less than the Minimum JCPR Percentage of the Average Principal Receivables, JCPR shall, under the terms of the Receiv- ables Purchase Agreement or the Bank Receivables Purchase Agreement, rxxxxxe JCPenney or the Bank to transfer the Receivables of additional Eligible Ac- counts to be included as Accounts, and JCPR shall purchase Receivables in such Additional Accounts under the Receivables Purchase Agreement or the Bank Receivables Purchase Agreement and transfer such Receivables to the Trust, in a sufficient amount so that the average of the JCPR Amount as a percent of the Average Principal Receivables during such 30 day period would have, if the Receivables from such Accounts had been transferred to the trust on the first day of such 30 day period, at least equalled the Minimum JCPR Percent- age.
(ib) IfIn addition to its obligation under subsection 2.6(a), JCPR may, but shall not be obligated to, from time to time, Funding (A) becomes obligated agree with JCPenney or the Bank to designate Additional Accounts pursuant to Subsection 2.08(abe included as Accounts.
(c) At any time that the Receivables in substantially all the Eligible Accounts of any Cycle have been transferred to the Pooling Trust, then on each day that an Eligible Account is added to such Cycle such Eligible Account shall, until notice from JCPR to the Trustee to the contrary, automatically be included as an Additional Account effective as of such date of inclusion in such Cycle.
(d) JCPR agrees that any Receivables from Additional Accounts shall first be sold by JCPenney or the Bank to JCPR and Servicing Agreementtransferred by JCPR to the Trust under subsection 2.6(a), (b) or (Bc) elects upon and subject to designate Additional Accounts pursuant to Subsection 2.08(bthe fol- lowing conditions:
(i) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on On or before the eighth fifth Business Day (the "Notice Date") prior to the Addition Date therefor, and upon receipt in respect of such notice Capital One shall on or before the Addition Date, designate sufficient Eligible Accounts to be included as Additional Accounts as requested by Funding.
(iiadded pursuant to subsection 2.6(a) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
or (b) On ), JCPR shall give the Addition Date with respect to any designation of Additional Accounts, Trustee and the Servicer written notice that such Additional Accounts shall become Accounts, will be included and Funding shall purchase Capital One’s right, title and interest in, to and under specifying the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One shall have occurred nor shall the sale approximate aggregate amount of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereofbe transferred;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) above.
Appears in 1 contract
Samples: Master Pooling and Servicing Agreement (JCP Receivables Inc)
Addition of Accounts. (a) (i) If, Each Seller may from time to time, Funding (A) becomes obligated time offer to voluntarily designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) AdditionallyAccounts, Capital One may, at its option and with subject to the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
conditions specified in paragraph (b) On below. If any such offer is accepted by the Addition Date with respect to any designation of Additional AccountsBuyer, Receivables and Collateral Security, if any, from such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject be sold to the satisfaction of Buyer (or contributed to the following conditions Buyer in accordance with Section 2.1) effective on such a date (the "Addition Date:
") specified in a written notice provided by the Seller (ior the Servicer on its behalf) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein Buyer and the related Purchased Assets;
(ii) as of each of any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date or, if the Automatic Addition Condition is satisfied, on the Determination Date following the Collection Period in which such Addition Dates occur (the "Notice Date"). An Addition Notice may relate to one or more Accounts on one or more Addition Dates.
(b) Each Seller shall be permitted to convey to the Buyer the Receivables and all Collateral Security, no Insolvency Event if any, related thereto in any Additional Accounts designated by such Seller as such pursuant to Section 2.4(a) only upon satisfaction of each of the following conditions on or prior to the related Addition Date (except for the condition in clause (vii), if applicable, which shall be satisfied on or before the tenth Business Day after such Notice Date):
(i) Such Seller shall provide the Buyer and any Enhancement Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) Such Seller shall have delivered to the Buyer a duly executed written assignment (including an acceptance by the Buyer) covering the Receivables specified in the Addition Notice in substantially the form of Exhibit A (the "Assignment") and the computer file or microfiche or written list required to be delivered pursuant to Section 2.1.
(iv) Such Seller shall have delivered to the Buyer for deposit in the Collection Account all Collections with respect to Capital One such Additional Accounts since the Additional Cut-Off Date.
(v) (A) No selection procedures believed by such Seller to be adverse to the interests of the Buyer or the Beneficiaries were used in selecting such Additional Accounts; (B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, neither such Seller, the Buyer nor the servicer are insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency.
(vi) If the Automatic Addition Condition is not satisfied with respect to such addition, the Rating Agency Condition shall have occurred nor been satisfied with respect to such addition.
(vii) If (A) one or more of the Additional Accounts specified in such Addition Notice will contain Receivables secured by a security interest in a type of Product that has not been previously financed in the Floorplan Business or (B) one or more of the Additional Accounts is supported by a Floorplan Agreement with a Manufacturer that, as of the related Addition Date, is not an Existing Manufacturer, then, whether or not the Automatic Condition is satisfied, the Rating Agency Condition shall have been satisfied in respect of the sale addition of each Additional Account specified in clauses (A) and (B) on or prior to the related Addition Date.
(viii) The addition of the Receivables arising in the such Additional Accounts and the related Purchased Assets to Funding have been made shall not result in contemplation of the occurrence thereof;of an Early Amortization Event.
(iiiix) Capital One Such Seller shall have delivered to Funding an Officer’s Certificate the Buyer and any Enhancement Providers a certificate of Capital One, dated a Vice President or more senior officer confirming the Addition items set forth in paragraphs (ii) through (vi) and (viii) above.
(x) On or before each Notice Date, such Seller shall have delivered to the effect that Trustee and any Enhancement Providers (A) Capital One reasonably believes that such addition will not, based on an Opinion of Counsel with respect to the facts known to such officer at Receivables in the time Additional Accounts added since the last delivery of such certification, then cause a Pay Out Event under opinion substantially in the Pooling and Servicing Agreement or any event form of Exhibit G-2 to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) except in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created an addition in connection with such Additional Accounts an addition of Receivables by the Buyer to the Trust required by Section 2.5(a) of the Pooling and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule Servicing Agreement, a Tax Opinion with respect to such Additional Accounts addition; provided that if such Opinion of Counsel and Tax Opinion are required to be delivered, they shall be rendered by outside counsel no less frequently than quarterly.
(c) Each Seller hereby represents and warrants as of the applicable Addition Date as to the matters set forth in Section 2.4(b)(v). The representations and warranties set forth in Section 2.4(b)(v) shall survive the case sale and assignment of the respective Receivables and Collateral Security, if any, to the Buyer. Upon discovery by either Seller or the Buyer of a breach of any of the foregoing representations and warranties, the party discovering the breach shall give prompt written notice to the other parties and to any Enhancement Providers.
(d) Notwithstanding anything in this Section 2.4 to the contrary, the additions of Additional Accounts designated pursuant to Subsection 2.02(a)(iSection 2.5 on or prior to the Closing Date for Series 1994-1 need not satisfy clause (i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi), (vii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses or (i) through (v) abovex).
Appears in 1 contract
Samples: Receivables Contribution and Sale Agreement (Deutsche Floorplan Receivables L P)
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) as of the Pooling and Servicing Agreementclose of business on the last Business Day of any Monthly Period, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) the aggregate amount of Principal Receivables is less than the Pooling and Servicing AgreementRequired Principal Balance on such date, then in either case Funding may, at its option, give Capital One written notice thereof the Seller shall on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt close of business on the 10th Business Day following the last Business Day of such notice Capital One shall Monthly Period (the "Required Designation Date"), unless the aggregate amount of Principal Receivables exceeds the Required Principal Balance as of the close of business on or before any day after the Addition last Business Day of such Monthly Period and prior to the Required Designation Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Fundingof the Required Designation Date or any earlier date in a sufficient amount such that, after giving effect to such addition, the aggregate amount of Principal Receivables equals or exceeds the Required Principal Balance on such date. Each such addition shall be subject to the same conditions applicable to any Addition required to be made pursuant to Section 2.08(a) of the Agreement. The failure of any condition set forth in Section 2.08(c) or (d) of the Agreement, as the case may be, shall not relieve the Seller of its obligation pursuant to this paragraph; provided, however, that the failure of the Seller to transfer -------- ------- Receivables to the Trust as provided in this paragraph solely as a result of the unavailability of a sufficient amount of Eligible Receivables shall not constitute a breach of this Supplement; provided further that any such -------- ------- failure which has not been timely cured will nevertheless result in the occurrence of a Pay Out Event with respect to Series 2000-2.
(ii) AdditionallyIn lieu of, Capital One mayor in addition to, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, such designating Additional Accounts shall become Accountspursuant to clause (i) above, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01Seller may, subject to the satisfaction conditions specified in Section 2.08(d) of the following conditions on such Addition Date:
(i) Capital One shall have delivered Agreement, convey to Funding copies the Trust Participation Interests. The addition of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest Participation Interests in the Receivables arising therein Trust pursuant to this paragraph shall be effected by an amendment to the Agreement and this Supplement, dated the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the applicable Addition Date, no Insolvency Event with respect pursuant to Capital One shall have occurred nor shall the sale Section 13.01(a) of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) aboveAgreement.
Appears in 1 contract
Samples: Supplement to Pooling and Servicing Agreement (Capital One Master Trust)
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) as of the Pooling and Servicing Agreementclose of business on the last Business Day of any Monthly Period, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) the aggregate amount of Principal Receivables is less than the Pooling and Servicing AgreementRequired Principal Balance on such date, then in either case Funding may, at its option, give Capital One written notice thereof the Seller shall on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt close of business on the 10th Business Day following the last Business Day of such notice Capital One shall Monthly Period (the "Required Designation Date"), unless the aggregate amount of Principal Receivables exceeds the Required Principal Balance as of the close of business on or before any day after the Addition last Business Day of such Monthly Period and prior to the Required Designation Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Fundingof the Required Designation Date or any earlier date in a sufficient amount such that, after giving effect to such addition, the aggregate amount of Principal Receivables equals or exceeds the Required Principal Balance on such date. Each such addition shall be subject to the same conditions applicable to any Addition required to be made pursuant to Section 2.08(a) of the Agreement. The failure of any condition set forth in Section 2.08(c) or (d) of the Agreement, as the case may be, shall not relieve the Seller of its obligation pursuant to this paragraph; provided, however, that the -------- ------- failure of the Seller to transfer Receivables to the Trust as provided in this paragraph solely as a result of the unavailability of a sufficient amount of Eligible Receivables shall not constitute a breach of this Supplement; provided further that any such failure which has not been -------- ------- timely cured will nevertheless result in the occurrence of a Pay Out Event with respect to Series 1999-3.
(ii) AdditionallyIn lieu of, Capital One mayor in addition to, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, such designating Additional Accounts shall become Accountspursuant to clause (i) above, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01Seller may, subject to the satisfaction conditions specified in Section 2.03(d) of the following conditions on such Addition Date:
(i) Capital One shall have delivered Agreement, convey to Funding copies the Trust Participation Interests. The addition of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest Participation Interests in the Receivables arising therein Trust pursuant to this paragraph shall be effected by an amendment to the Agreement and this Supplement, dated the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the applicable Addition Date, no Insolvency Event with respect pursuant to Capital One shall have occurred nor shall the sale Section 13.01(a) of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) aboveAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Capital One Master Trust)
Addition of Accounts. (a) (i) If, The Seller may from time to time, Funding (A) becomes obligated time offer to voluntarily designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts (including Partial Accounts) to be included as Additional Accounts as requested by Funding.
(ii) AdditionallyAccounts, Capital One may, at its option and with subject to the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
conditions specified in paragraph (b) On below. If any such offer is accepted by the Addition Date with respect to any designation of Additional AccountsBuyer, Receivables and Collateral Security from such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject be sold to the satisfaction of Buyer effective on a date (the following conditions on such "Addition Date:
") specified in a written notice provided by the Seller (ior the Servicer on its behalf) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein Buyer and the related Purchased Assets;
(ii) as of each of any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than 30th day prior to the related Addition Date (the "Notice Date, no Insolvency Event with respect "). The Addition Notice shall also specify whether such Additional Accounts are Partial Accounts.
(b) The Seller shall be permitted to Capital One shall have occurred nor shall convey to the sale Buyer the Receivables and all Collateral Security related thereto in any Additional Accounts designated by the Seller as such pursuant to Section 2.04(a) only upon satisfaction of each of the Receivables arising in following conditions on or prior to the related Addition Date:
(i) The Seller shall provide the Buyer and any Enhancement Providers with a timely Addition Notice.
(ii) Such Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;shall all be Eligible Accounts.
(iii) Capital One The Seller shall have delivered to Funding the Buyer a duly executed written assignment (including an Officer’s Certificate of Capital One, dated acceptance by the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (BBuyer) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”)"Assignment") and the computer file microfiche or written list required to be delivered pursuant to Section 2.01.
(iv) The Seller shall have delivered to the Buyer for deposit in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut-Off Date.
(v) (A) No selection procedures believed by the Seller to be adverse to the interests of the Buyer or the Beneficiaries were used in selecting such Additional Accounts; and(B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, neither the Seller, the Buyer nor the Servicer are insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency.
(vi) Capital One The Rating Agency Condition shall have been satisfied.
(vii) The addition of the Receivables arising in such Additional Accounts shall not result in the occurrence of an Early Amortization Event.
(viii) The Seller shall have delivered to Funding an Officer’s Certificate the Buyer and any Enhancement Providers a certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, a Vice President or more senior officer confirming the items set forth in clauses paragraphs (iii) through (vvii) above.
(ix) On or before each Addition Date, the Seller shall deliver to the Buyer and any Enhancement Providers an opinion of counsel with respect to the Receivables in the Additional Accounts substantially in the form of Exhibit B.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Daimlerchrysler Wholesale Receivables LLC)
Addition of Accounts. (a) (i) If, The Seller may from time to time, Funding (A) becomes obligated -------------------- time offer to voluntarily designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) AdditionallyAccounts, Capital One may, at its option and with subject to the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
conditions specified in paragraph (b) On below. If any such offer is accepted by the Addition Date with respect to any designation of Additional AccountsPurchaser, Receivables and Collateral Security from such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject be sold to the satisfaction of Purchaser effective on a date (the following conditions on such "Addition Date:
") specified in a written notice provided by the Seller (ior ------------- the Servicer on its behalf) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein Purchaser and the related Purchased Assets;
(ii) as of each of any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the tenth Business Day but not --------------- more than the 30th day prior to the related Addition Date (the "Notice Date, no Insolvency Event with respect "). -----------
(b) The Seller shall be permitted to Capital One shall have occurred nor shall convey to the sale Purchaser the Receivables and all Collateral Security related thereto in any Additional Accounts designated by the Seller as such pursuant to subsection (a) above only upon satisfaction of each of the Receivables arising in following conditions on or prior to the related Addition Date:
(i) The Seller shall provide the Purchaser and any Enhancement Providers with a timely Addition Notice;
(ii) Such Additional Accounts shall all be Eligible Accounts and the related Purchased Assets to Funding Rating Agency Condition shall have been made in contemplation of the occurrence thereofsatisfied;
(iii) Capital One The Seller shall have delivered to Funding an Officer’s Certificate the Purchaser a duly executed written assignment in substantially the form of Capital One, dated Exhibit A hereto (the Addition Date, "Assignment") and the computer file or microfiche or written list ---------- required to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known be delivered pursuant to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the additionSection 2.01 hereof;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts The Seller, to the extent required by Section 4.03 of the Pooling and the related Purchased Assets have been sold to Funding and Servicing Agreement, shall have delivered to Funding the Purchaser for deposit in the Collection Account Schedule all Collections with respect to such Additional Accounts since the Additional Cut-Off Date;
(A) No selection procedures believed by the Seller to be adverse to the interests of the Purchaser or the Beneficiaries were used in selecting such Additional Accounts; (B) the case list of Additional Accounts designated delivered pursuant to Subsection 2.02(a)(i))clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, neither the Seller, the Purchaser nor the Servicer are insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency;
(vvi) Capital One and Funding The addition of the Receivables arising in such Additional Accounts shall have entered into a duly executed, written assignment, substantially not in the form reasonable belief of Exhibit A (the “Supplemental Conveyance”)Seller result in the occurrence of an Early Amortization Event; and
(vivii) Capital One The Seller shall have delivered to Funding an Officer’s Certificate the Purchaser and any Enhancement Providers a certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, a Vice President or more senior officer confirming the items set forth in clauses (iii) through (vvi) above.
(c) The Seller hereby represents and warrants as of the applicable Addition Date as to the matters set forth in clause (v) of subsection (b) of this Section 2.04. The representations and warranties set forth in clause (v) of subsection (b) of this Section 2.04 shall survive the sale and assignment of the respective Receivables and Collateral Security to the Purchaser. Upon discovery by the Seller or the Purchaser of a breach of any of the foregoing representations and warranties, the party discovering the breach shall give prompt written notice to the other party and to any Enhancement Providers.
(d) At least ten (10) days prior to each Addition Date in respect of the designation of any Additional Accounts pursuant to this Section 2.04, the Seller shall have given written notice of such designation to the Rating Agencies.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Bombardier Receivables Master Trust I)
Addition of Accounts. (a) (i) If, from time to time, Funding the Buyer (A) becomes obligated to designate Additional Supplemental Accounts pursuant to Subsection 2.08(asubsection 2.6(c) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Supplemental Accounts pursuant to Subsection 2.08(bsubsection 2.6(d) of the Pooling and Servicing Agreement, then in either case Funding the Buyer may, at its option, give Capital One the Seller written notice thereof on or before the eighth fifth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One the Seller shall on or before the Addition Date, designate sufficient Eligible Accounts to be included as Additional Supplemental Accounts as requested by Funding.the Buyer; and
(ii) Additionally, Capital One the Seller may, at its option and with the consent of Fundingthe Buyer, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts or Supplemental Accounts, such Additional Accounts or Supplemental Accounts shall become Accounts, and Funding the Buyer shall purchase Capital One’s the Seller's right, title and interest in, to and under the Receivables in such Additional Accounts or Supplemental Accounts, and the related Purchased Assets property, as provided in Section 2.012.1, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One the Seller shall have delivered to Funding the Buyer copies of UCC financing statements covering such Additional Accounts or Supplemental Accounts, if necessary to perfect Funding’s the Buyer's interest in the Receivables arising therein and the related Purchased Assetsproperty;
(ii) as of on each of the Additional Addition Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One shall have occurred nor shall the sale of the Receivables arising in the such Additional Accounts or Supplemental Accounts, and the related Purchased Assets property, to Funding the Buyer shall not have caused the Seller's insolvency or have been made in contemplation of the occurrence thereofSeller's insolvency;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One the Seller that would result in a selection of such Additional Accounts or Supplemental Accounts (from the available Eligible Accounts owned by Capital Oneavailable the Seller) that would be materially adverse to the interests of Funding the Buyer as of the date of the additionAddition Date;
(iv) Capital One the Seller shall have indicated in its accounting, computer files and other records that Receivables created in connection with such Additional Accounts or Supplemental Accounts, and the related Purchased Assets property, have been sold to Funding the Buyer and shall have delivered to Funding the Buyer the required Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i))Schedule;
(v) Capital One the Seller and Funding the Buyer shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”"Assignment"); and
(vi) Capital One the Seller shall have delivered to Funding the Buyer an Officer’s 's Certificate of Capital Onethe Seller, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) above.
Appears in 1 contract
Addition of Accounts. (a) (i) If, The Seller may from time to time, Funding (A) becomes obligated time offer to voluntarily designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts (including Partial Accounts) to be included as Additional Accounts as requested by Funding.
(ii) AdditionallyAccounts, Capital One may, at its option and with subject to the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
conditions specified in paragraph (b) On below. If any such offer is accepted by the Addition Date with respect to any designation of Additional AccountsBuyer, Receivables and Collateral Security from such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject be sold to the satisfaction of Buyer effective on a date (the following conditions on such "Addition Date:
") specified in a written notice provided by the Seller (ior the Servicer on its behalf) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein Buyer and the related Purchased Assets;
(ii) as of each of any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than 30th day prior to the related Addition Date (the `Notice Date, no Insolvency Event with respect "). The Addition Notice shall also specify whether such Additional Accounts are Partial Accounts.
(b) The Seller shall be permitted to Capital One shall have occurred nor shall convey to the sale Buyer the Receivables and all Collateral Security related thereto in any Additional Accounts designated by the Seller as such pursuant to Section 2.04(a) only upon satisfaction of each of the Receivables arising in following conditions on or prior to the related Addition Date:
(i) The Seller shall provide the Buyer and any Enhancement Providers with a timely Addition Notice.
(ii) Such Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;shall all be Eligible Accounts.
(iii) Capital One The Seller shall have delivered to Funding the Buyer a duly executed written assignment (including an Officer’s Certificate of Capital One, dated acceptance by the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (BBuyer) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”)"Assignment") and the computer file microfiche or written list required to be delivered pursuant to Section 2.01.
(iv) The Seller shall have delivered to the Buyer for deposit in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut-Off Date.
(v) (A) No selection procedures believed by the Seller to be adverse to the interests of the Buyer or the Beneficiaries were used in selecting such Additional Accounts; and(B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, neither the Seller, the Buyer nor the Servicer are insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency.
(vi) Capital One The Rating Agency Condition shall have been satisfied.
(vii) The addition of the Receivables arising in such Additional Accounts shall not result in the occurrence of an Early Amortization Event.
(viii) The Seller shall have delivered to Funding an Officer’s Certificate the Buyer and any Enhancement Providers a certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, a Vice President or more senior officer confirming the items set forth in clauses paragraphs (iii) through (vvii) above.
(ix) On or before each Addition Date, the Seller shall deliver to the Buyer and any Enhancement Providers an opinion of counsel with respect to the Receivables in the Additional Accounts substantially in the form of Exhibit B.
(c) The Seller hereby represents and warrants as of the applicable Addition Date as to the matters set forth in Section 2.04(b)(v). The representations and warranties set forth in Section 2.04(b)(v) shall survive the sale and assignment of the respective Receivables and Collateral Security to the Buyer. Upon discovery by the Seller or the Buyer of a breach of any of the foregoing representations and warranties, the party discovering the breach shall give prompt written notice to the other party and to any Enhancement Providers.
(d) At least 20 days prior to each Addition Date in respect of the designation of any Additional Accounts pursuant to this Section 2.04, the Seller shall have given written notice of such designation to the Rating Agencies.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Carco Auto Loan Master Trust)
Addition of Accounts. (a) (i) If, Each Seller may from time to time, Funding (A) becomes obligated time offer to voluntarily designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) AdditionallyAccounts, Capital One may, at its option and with subject to the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
conditions specified in paragraph (b) On below. If any such offer is accepted by the Addition Date with respect to any designation of Additional AccountsBuyer, Receivables and Collateral Security, if any, from such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject be sold to the satisfaction of Buyer (or contributed to the following conditions Buyer in accordance with Section 2.1) effective on such a date (the "Addition Date:
") specified in a written notice provided by the Seller (ior the Servicer on its behalf) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein Buyer and the related Purchased Assets;
(ii) as of each of any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date or, if the Automatic Addition Condition is satisfied, on the Determination Date following the Collection Period in which such Addition Dates occur (the "Notice Date"). An Addition Notice may relate to one or more Accounts on one or more Addition Dates.
(b) Each Seller shall be permitted to convey to the Buyer the Receivables and all Collateral Security, no Insolvency Event if any, related thereto in any Additional Accounts designated by such Seller as such pursuant to Section 2.4(a) only upon satisfaction of each of the following conditions on or prior to the related Addition Date (except for the condition in clause (vii), if applicable, which shall be satisfied on or before the tenth Business Day after such Notice Date):
(i) Such Seller shall provide the Buyer and any Enhancement Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) Such Seller shall have delivered to the Buyer a duly executed written assignment (including an acceptance by the Buyer) covering the Receivables specified in the Addition Notice in substantially the form of Exhibit A modified, if applicable, to reflect contributions to (and by) the general partner of the Buyer (the "Assignment") and the computer file or microfiche or written list required to be delivered pursuant to Section 2.1.
(iv) Such Seller shall have delivered to the Buyer for deposit in the Collection Account all Collections with respect to Capital One such Additional Accounts since the Additional Cut- Off Date.
(v) (A) No selection procedures believed by such Seller to be adverse to the interests of the Buyer or the Beneficiaries were used in selecting such Additional Accounts; (B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, neither such Seller, the Buyer nor the servicer are insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency.
(vi) If the Automatic Addition Condition is not satisfied with respect to such addition, the Rating Agency Condition shall have occurred nor been satisfied with respect to such addition.
(vii) If (A) one or more of the Additional Accounts specified in such Addition Notice will contain Receivables secured by a security interest in a type of Product that has not been previously financed in the Floorplan Business or (B) one or more of the Additional Accounts is supported by a Floorplan Agreement with a Manufacturer that, as of the related Addition Date, is not an Existing Manufacturer, then, whether or not the Automatic Condition is satisfied, the Rating Agency Condition shall have been satisfied in respect of the sale addition of each Additional Account specified in clauses (A) and (B) on or prior to the related Addition Date.
(viii) The addition of the Receivables arising in the such Additional Accounts and the related Purchased Assets to Funding have been made shall not result in contemplation of the occurrence thereof;of an Early Amortization Event.
(iiiix) Capital One Such Seller shall have delivered to Funding an Officer’s Certificate the Buyer and any Enhancement Providers a certificate of Capital One, dated a Vice President or more senior officer confirming the Addition Date, items set forth in paragraphs (ii) through (vi) and (viii) above.
(x) Such Seller shall have delivered to the effect that Trustee and any Enhancement Providers (A) Capital One reasonably believes that such addition will not, based on an Opinion of Counsel with respect to the facts known to such officer at Receivables in the time Additional Accounts added since the last delivery of such certification, then cause a Pay Out Event under opinion substantially in the Pooling and Servicing Agreement or any event form of Exhibit G-2 to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) except in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created an addition in connection with such Additional Accounts an addition of Receivables by the Buyer to the Trust required by Section 2.5(a) of the Pooling and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule Servicing Agreement, a Tax Opinion with respect to such Additional Accounts addition; provided that if such Opinion of Counsel and Tax Opinion are required to be delivered, they shall be rendered by outside counsel no less frequently than quarterly.
(c) Each Seller hereby represents and warrants as of the applicable Addition Date as to the matters set forth in Section 2.4(b)(v). The representations and warranties set forth in Section 2.4(b)(v) shall survive the case sale and assignment of the respective Receivables and Collateral Security, if any, to the Buyer. Upon discovery by either Seller or the Buyer of a breach of any of the foregoing representations and warranties, the party discovering the breach shall give prompt written notice to the other parties and to any Enhancement Providers.
(d) Notwithstanding anything in this Section 2.4 to the contrary, the additions of Additional Accounts designated pursuant to Subsection 2.02(a)(iSection 2.5 on or prior to the Closing Date for Series 1994-1 need not satisfy clause (i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi), (vii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses or (i) through (v) abovex).
Appears in 1 contract
Samples: Receivables Contribution and Sale Agreement (Distribution Financial Services Floorplan Master Trust)
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated to designate All Accounts which meet the definition of Automatic Additional Accounts pursuant to Subsection 2.08(a) of which are Eligible Accounts shall be included as Accounts from and after the Pooling and Servicing Agreement, or (B) elects to designate date upon which such eligible Automatic Additional Accounts pursuant are created and all Receivables in such Automatic Additional Accounts, whether such Receivables are then existing or thereafter created, shall be transferred automatically to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding mayTrust upon origination by the Seller. The Seller, at its option, give Capital One may, by providing written notice thereof to the Trustee and the Servicer, terminate or suspend the inclusion of Automatic Additional Accounts at any time. For all purposes of this Agreement, all receivables of such Automatic Additional Accounts shall be treated as Receivables upon their creation and shall be subject to the eligibility criteria specified in the definitions of "Eligible Receivable" and "Eligible Account."
(b) On any day Receivables in Automatic Additional Accounts are created, the Seller will be deemed to have made the representations in Section 2.4. -----------
(c) Receivables in Automatic Additional Accounts shall be transferred to the Trust, as Accounts if, in addition to satisfying the requirements of clauses ------- (a) through (g) of the definition of Eligible Accounts, the following conditions --- --- are met: the number of Accounts the Receivables of which are designated to be added to the Trust pursuant to subsection 2.6(a) since (i) the opening of ----------------- business on the first day of the eleventh preceding Monthly Period (or, in the case of any date on which eligible Automatic Additional Accounts are to be added to the Trust which occurs on or before May 31, 1994, the Cut-Off Date) minus the ----- number of Accounts of the type described in clauses (b) and (c) of the ----------- --- definition of "Automatic Additional Accounts" which have been added on the initial day of the addition of such type of Account pursuant to such clauses (b) ----------- and (c) since the opening of business on the first day of such eleventh --- preceding Monthly Period (or the Cut-Off Date, as the case may be) plus the ---- number of Accounts, if any, the Receivables of which have been designated to be added to the Trust since the opening of business on the first day of such eleventh preceding Monthly Period (or the Cut-Off Date, as the case may be) pursuant to subsection 2.6(e) minus any Removed Accounts removed since the ----------------- ----- opening of business on the first day of such eleventh preceding Monthly Period (or the Cut-Off Date, as the case may be) shall not exceed 15% of the number of Accounts at the opening of business on the first day of such eleventh preceding Monthly Period (or the Cut-Off Date, as the case may be), and (ii) the opening of business on the first day of the second preceding Monthly Period (or, in the case of any date on which eligible Automatic Additional Accounts are to be added to the Trust which occurs on or before August 31, 1993, the Cut-Off Date) minus ----- the number of Accounts of the type described in clauses (b) and (c) of the ----------- --- definition of "Automatic Additional Accounts" have been added on the initial day of the addition of such type of Account pursuant to such clauses (b) and (c) ----------- --- since the opening of business on the first day of such second preceding Monthly Period (or the Cut-Off Date, as the case may be) plus the number of Accounts, if ---- any, the Receivables of which have been designated to be added to the Trust since the opening of business on the first day of such second preceding Monthly Period (or the Cut-Off Date, as the case may be) pursuant to subsection 2.6(e) ----------------- minus any Removed Accounts removed since the first day of such second preceding ----- Monthly Period (or the Cut-Off Date, as the case may be) shall not exceed 10% of the number of Accounts at the opening of business on the first day of such second preceding Monthly Period (or the Cut-Off Date, as the case may be).
(d) The Seller shall provide to the Trustee on each Determination Date, a list of Automatic Additional Accounts, identified by account number, added during the preceding Monthly Period.
(e) If (i) on any Record Date the Seller Interest for the related Monthly Period, is less than the Minimum Seller Interest, the Seller shall designate additional credit card accounts ("Additional Accounts") to be included as ------------------- Accounts in a sufficient amount such that the Seller Interest as a percentage of the Aggregate Principal Receivables for such Monthly Period after giving effect to such addition is at least equal to the Minimum Seller Interest, or (ii) on any date of determination the Aggregate Principal Receivables is less than the Minimum Aggregate Principal Receivables, the Seller shall designate Additional Accounts to be included as Accounts in a sufficient amount such that the aggregate amount of Principal Receivables will be equal to or greater than the Minimum Aggregate Principal Receivables. Receivables from such Additional Accounts shall be transferred to the Trust on or before the eighth tenth Business Day following such Record Date.
(f) In addition to its obligation under subsection 2.6(e), the Seller may ----------------- upon twenty Business Days' notice to the Trustee, any Enhancement Provider if so provided in the applicable Supplement and each Rating Agency, but shall not be obligated to, designate from time to time Additional Accounts of the Seller to be included as Accounts.
(g) The Seller agrees that any such transfer of Receivables from Additional Accounts, under subsection 2.6(e) or (f), shall satisfy the following ----------------- --- conditions (to the extent provided below):
(i) on or before (A) the twentieth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient Eligible for Additional Accounts to be included as Accounts pursuant to subsection 2.6(f) or (B) the fifth Business Day prior to the Addition Date ----------------- for Additional Accounts as requested by Funding.
(ii) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One shall have occurred nor shall the sale of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) above.subsection ---------- 2.6
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Peoples Bank Credit Card Master Trust)
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) as of the Pooling and Servicing Agreementclose of business on the last Business Day of any Monthly Period, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) the aggregate amount of Principal Receivables is less than the Pooling and Servicing AgreementRequired Principal Balance on such date, then in either case Funding may, at its option, give Capital One written notice thereof the Seller shall on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt close of business on the 10th Business Day following the last Business Day of such notice Capital One shall Monthly Period (the "Required Designation Date"), unless the aggregate amount of Principal Receivables exceeds the Required Principal Balance as of the close of business on or before any day after the Addition last Business Day of such Monthly Period and prior to the Required Designation Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Fundingof the Required Designation Date or any earlier date in a sufficient amount such that, after giving effect to such addition, the aggregate amount of Principal Receivables equals or exceeds the Required Principal Balance on such date. Each such addition shall be subject to the same conditions applicable to any Addition required to be made pursuant to Section 2.08(a) of the Agreement. The failure of any condition set forth in Section 2.08(c) or (d) of the Agreement, as the case may be, shall not relieve the Seller of its obligation pursuant to this paragraph; provided, however, -------- ------- that the failure of the Seller to transfer Receivables to the Trust as provided in this paragraph solely as a result of the unavailability of a sufficient amount of Eligible Receivables shall not constitute a breach of this Supplement; provided further, that any such failure which has not been -------- ------- timely cured will nevertheless result in the occurrence of a Pay Out Event with respect to Series 199_-_.
(ii) AdditionallyIn lieu of, Capital One mayor in addition to, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, such designating Additional Accounts shall become Accountspursuant to clause (i) above, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01Seller may, subject to the satisfaction conditions specified in Section 2.03(d) of the following conditions on such Addition Date:
(i) Capital One shall have delivered Agreement, convey to Funding copies the Trust Participation Interests. The addition of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest Participation Interests in the Receivables arising therein Trust pursuant to this paragraph shall be effected by an amendment to the Agreement and this Supplement, dated the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the applicable Addition Date, no Insolvency Event with respect pursuant to Capital One shall have occurred nor shall the sale Section 13.01(a) of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) aboveAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement Supplement (Capital One Master Trust)
Addition of Accounts. (a) If, on any Record Date, the Aggregate Principal Balance is less than the Minimum Aggregate Principal Balance, either Seller or the Servicer (iwhichever shall first become aware of same) Ifpromptly shall give the Trustee written notice thereof, and as soon as practicable (but in no event later than 10 days thereafter) Seller shall designate additional Eligible Accounts ("Additional Accounts") to be included as Accounts and shall ------------------- transfer the Receivables in such Additional Accounts to the Trust, in a sufficient amount so that the Aggregate Principal Balance on such Record Date would have, if the Receivables from such Additional Accounts had been transferred to the Trust on or prior to such Record Date, at least equaled the Minimum Aggregate Principal Balance. If Seller fails to transfer Receivables as required by the preceding sentence, then the Trustee shall give Seller immediate notice thereof.
(b) In addition to its obligation under subsection 2.6(a), Seller ----------------- may, but shall not be obligated to, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(abe included as Accounts.
(c) of Seller agrees that any Receivables from Additional Accounts shall be transferred by Seller to the Pooling and Servicing AgreementTrust under subsection 2.6(a), (b) or (Be) elects ------------------ --- --- upon and subject to designate Additional Accounts pursuant to Subsection 2.08(bthe following conditions:
(i) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on On or before the eighth fifth Business Day (the "Notice Date") ----------- prior to the Addition Date thereforin respect of Additional Accounts added pursuant to subsection 2.6(a) or (b), Seller shall give the Trustee ----------------- --- and the Servicer (if a Person other than Seller) written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Trust Receivables only in Eligible Accounts, and upon receipt (B) shall, if such designation of Additional Accounts is made pursuant to subsection 2.6(b) or (e) and the addition ----------------- --- of such notice Capital One shall on Additional Accounts
(1) would cause the quotient (the "Annual Quotient") of (x) --------------- the sum of the Annual Account Additions after giving effect to such addition, plus the related Base Amount, divided by (y) the ---- ---------- related Base Amount to exceed 1.20, or
(2) would cause the quotient (the "Quarterly Quotient") of ------------------ (x) the sum of the Quarterly Account Additions after giving effect to such addition, plus the related Base Amount, divided by ---- ---------- (y) the related Base Amount to exceed 1.15; in either case, deliver a letter from each Rating Agency to the Trustee by the Addition Date confirming that the Rating Agency Condition has been satisfied with respect to the addition of such Additional Accounts;
(iii) On or before prior to the Addition Date, designate sufficient Eligible Accounts to be included as in respect of Additional Accounts as requested added pursuant to subsection 2.6(a) or (b), Seller shall have ----------------- --- delivered to the Trustee a written transfer agreement (including an acceptance by Funding.
the Trustee on behalf of the Trust for the benefit of the Investor Certificateholders) in substantially the form of Exhibit ------- A (iithe "Transfer Agreement") Additionallyand shall have indicated in its books and - ------------------ records, Capital One mayincluding the computer files of the Receivables, at its option and that the Receivables created in connection with the consent Additional Accounts have been transferred by Seller to the Trust; and shall have delivered to the Trustee a computer file or microfiche list containing a true and complete list of Fundingall Additional Accounts identified by account number, designate newly originated Eligible Accounts to be included as and the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts.
(b) On , as of the Addition Date with in respect to any designation of Additional AccountsAccounts added pursuant to subsection 2.6(a) or (b), which computer file or microfiche list shall ----------------- --- be marked as Schedule 1 to the Transfer Agreement, delivered to the ---------- Trustee as confidential and proprietary, shall be as of the date of such Transfer Agreement and incorporated into and made a part of such Transfer Agreement and this Agreement;
(iv) Seller shall be deemed to represent and warrant that (x) each Additional Account is, as of the Addition Date, an Eligible Account, (y) no selection procedures reasonably believed by Seller to be materially adverse to the interests of the Investor Certificateholders were utilized in selecting the Additional Accounts shall become from the available Eligible Accounts, and Funding (z) as of the Addition Date, Seller is not insolvent and will not be rendered insolvent by adding any such Additional Account to any Cycle;
(v) Seller shall purchase Capital One’s be deemed to represent and warrant that, as of the Addition Date, the Transfer Agreement constitutes either (x) a valid transfer to the Trust of all right, title and interest of Seller in, to and under the Receivables then existing and thereafter arising in respect of the Additional Accounts, all monies due or to become due with respect thereto (including all Finance Charge Receivables), and all proceeds (including, without limitation, as defined in the UCC as in effect in the State of Illinois) of such Additional Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Trust free and clear of any Lien of any Person, except for (i) Liens permitted under subsection 2.5(b), (ii) the Seller Interest and (iii) ----------------- Seller's right to receive interest accruing on, and investment earnings in respect of, the Finance Charge Accounts, the Principal Accounts and the related Purchased Assets any other Investor Accounts, as provided in Section 2.01this Agreement and any Supplement, subject or (y) a grant of a security interest (as defined in the UCC as in effect in the State of Illinois) in such property to the satisfaction Trust, which is enforceable with respect to then existing Receivables of the following conditions on such Addition Date:
(i) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary all monies due or to perfect Funding’s interest in become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables arising therein to the Trust, and the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event which will be enforceable with respect to Capital One shall have occurred nor shall the sale of the Receivables arising thereafter transferred in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case respect of Additional Accounts, no selection procedure was utilized by Capital One that would result in the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Transfer Agreement constitutes the grant of a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse security interest to the interests Trust in such property, upon the filing of Funding a financing statement as of the date of the addition;
(iv) Capital One shall have indicated described in its computer files that Receivables created in connection Section 2.1 with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with ----------- respect to such Additional Accounts (and in the case of the Receivables of Additional Accounts designated pursuant thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to Subsection 2.02(a)(i));
(v) Capital One and Funding such Receivables, upon such transfer, the Trust shall have entered into a duly executedfirst priority perfected security interest in such property, written assignmentexcept for Liens permitted under subsection 2.5(b), substantially the Seller Interest and Seller's right to receive ----------------- interest accruing on, and investment earnings in respect of, the form of Exhibit A (Finance Charge Accounts, the “Supplemental Conveyance”); andPrincipal Accounts and any other Investor Accounts, as provided in this Agreement and any Supplement;
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital OneSeller shall, dated on the Addition DateDate for Additional Accounts added pursuant to subsection 2.6(a) or (b), confirming, to the extent applicable, deliver a certificate of a ----------------- --- Vice 34 President or more senior officer confirming the items set forth in clauses (iii), (iii), (iv) through and (v) above; and ------------ ----- ---- ---
(vii) Seller shall, on the Addition Date for Additional Accounts added pursuant to subsection 2.6(a) or (b), deliver an Opinion of ----------------- --- Counsel with respect to the Receivables in the Additional Accounts substantially in the form of Exhibit B, and which shall be reasonably --------- acceptable to the Rating Agencies.
(d) Seller shall provide to each Rating Agency and to each Enhancement Provider prior written notice each time Additional Accounts are added pursuant to subsection 2.6(a) or (b). ----------------- ---
(e) In addition to the occasional designation of Additional Accounts as required or permitted pursuant to subsections 2.6(a) and (b) above, ------------------ --- Seller agrees that each new MasterCard or VISA account originated in the normal course of Seller's business after the Cut Off Date shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Trust) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to one of Seller's billing cycles; provided, however, that such -------- ------- automatic inclusion and transfer shall not occur with respect to any such account if: (i) such account does not qualify as an Eligible Account, (ii) the inclusion in the Trust of the Receivables in such Account, if such Accounts had been designated by Seller pursuant to subsection 2.6(b), would ----------------- have caused the limitations set forth in subsection 2.6(c)(ii) to be --------------------- exceeded (unless there shall have been delivered to the Trustee a letter from each Rating Agency confirming the Rating Agency Condition has been satisfied with respect to the addition of such Additional Account), or (iii) Seller otherwise designates such account as an account which is not to be included as an Account pursuant to this subsection 2.6(e). On or ----------------- before the fifth Business Day of each month next succeeding a calendar month in which Accounts were included pursuant to the preceding sentence, Seller shall (i) indicate in its books and records, including the computer files of the receivables, that the Receivables created in connection with such included Accounts have been transferred to the Trust, and (ii) shall deliver to the Trustee a computer file or microfiche list containing a true and complete list of all such included Accounts identified by account number and by the Receivables balance and Principal Receivables balance as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Trustee as confidential and proprietary and incorporated into and made a part of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Consumers Master Trust)
Addition of Accounts. (a) (i) If, from time The Transferor shall on each Business Day designate as Accounts hereunder all newly created consumer revolving credit card accounts of the Seller that have been transferred to time, Funding the Transferor that are Eligible Accounts (the “Additional Accounts”). The Transferor agrees that it shall meet the following requirement in connection with the designation of such Additional Accounts:
(A) becomes obligated On the Determination Date immediately following the Monthly Period during which an Addition Date shall have occurred (the “Document Delivery Date”), the Transferor shall have delivered to designate the Indenture Trustee a computer file, magnetic tape or microfiche list containing a true and complete list of all Accounts, including Additional Accounts, identified by account number and the aggregate amount of the Principal Receivables and aggregate amount of Finance Charge Receivables in such Accounts and Additional Accounts pursuant to Subsection 2.08(a) as of the Pooling close of the preceding Monthly Period, which computer file, magnetic tape or microfiche lists shall be as of the date of such delivery incorporated into and Servicing Agreement, or made a part of this Agreement as Schedule 1; and
(B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on On or before the eighth Business Day prior Document Delivery Date, the Servicer shall determine whether the Account Addition Test is satisfied and shall designate the Excluded Accounts, if any, necessary to cause the Account Addition Test to be satisfied. Each Excluded Account (and all Receivables thereunder) shall automatically and without further action be re-conveyed by the Issuer to the Transferor upon such designation (and such re-conveyance shall be effective as of the Addition Date therefor, and upon receipt of for such notice Capital One shall on or before the Addition Date, designate sufficient Eligible Accounts to be included as Additional Accounts as requested by FundingAccount.
(ii) AdditionallyIn addition to causing the designation of Additional Accounts pursuant to clause (i) above, Capital One maythe Transferor may (but shall not be required), at its option subject to the conditions specified in paragraph (b) below, convey to the Trust participations (including 100% participations) representing undivided interests in a pool of assets primarily consisting of revolving credit card receivables and any interests in any of the foregoing, including securities representing or backed by such receivables and collections, together with all earnings, revenue, dividends, distributions, income, issues and profits thereon (“Participation Interests”). Receivables shall not be treated as a Participation Interest for purposes of this Agreement. The addition of Participation Interests in the consent of FundingTrust pursuant to this paragraph (a) shall be effected by a Participation Interest Supplement, designate newly originated Eligible Accounts dated the applicable Addition Date and entered into pursuant to subsection 9.01(a).
(iii) Any Participation Interests designated to be included as Additional Accounts.
Trust Assets pursuant to clause (ii) above may only be so included if the applicable conditions specified in paragraph (b) On the Addition Date with respect to any designation of Additional Accounts, such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One shall have occurred nor shall the sale of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding below have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) abovesatisfied.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Signet Jewelers LTD)
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) as of the Pooling and Servicing Agreementclose of business on the last Business Day of any Monthly Period, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) the aggregate amount of Principal Receivables is less than the Pooling and Servicing AgreementRequired Principal Balance on such date, then in either case Funding may, at its option, give Capital One written notice thereof the Seller shall on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt close of business on the 10th Business Day following the last Business Day of such notice Capital One shall Monthly Period (the "Required Designation Date"), unless the aggregate amount of Principal Receivables exceeds the Required Principal Balance as of the close of business on or before any day after the Addition last Business Day of such Monthly Period and prior to the Required Designation Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Fundingof the Required Designation Date or any earlier date in a sufficient amount such that, after giving effect to such addition, the aggregate amount of Principal Receivables equals or exceeds the Required Principal Balance on such date. Each such addition shall be subject to the same conditions applicable to any Addition required to be made pursuant to Section 2.08(a) of the Agreement. The failure of any condition set forth in Section 2.08(c) or (d) of the Agreement, as the case may be, shall not relieve the Seller of its obligation pursuant to this paragraph; provided, however, -------- ------- that the failure of the Seller to transfer Receivables to the Trust as provided in this paragraph solely as a result of the unavailability of a sufficient amount of Eligible Receivables shall not constitute a breach of this Supplement; provided further that any such failure which has not been -------- ------- timely cured will nevertheless result in the occurrence of a Pay Out Event with respect to Series 2000-3.
(ii) AdditionallyIn lieu of, Capital One mayor in addition to, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, such designating Additional Accounts shall become Accountspursuant to clause (i) above, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01Seller may, subject to the satisfaction conditions specified in Section 2.08(d) of the following conditions on such Addition Date:
(i) Capital One shall have delivered Agreement, convey to Funding copies the Trust Participation Interests. The addition of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest Participation Interests in the Receivables arising therein Trust pursuant to this paragraph shall be effected by an amendment to the Agreement and this Supplement, dated the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the applicable Addition Date, no Insolvency Event with respect pursuant to Capital One shall have occurred nor shall the sale Section 13.01(a) of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) aboveAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Capital One Master Trust)
Addition of Accounts. (a) (i) If, World Omni may from time to time, Funding (A) becomes obligated time offer to voluntarily designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) AdditionallyAccounts, Capital One may, at its option and with subject to the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
conditions specified in paragraph (b) On below. If any such offer is accepted by WODFI, Receivables and the Addition Date with respect to any designation of Additional Accounts, related Collateral Security from such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, be sold to and under WODFI effective on a date (the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such "Addition Date:
") specified in a written notice provided by World Omni (ior the Servicer on its behalf) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein WODFI and the related Purchased Assets;
(ii) as of each of any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date (the "Notice Date, no Insolvency Event with respect ").
(b) World Omni shall be permitted to Capital One shall have occurred nor shall convey to WODFI the sale Receivables and all Collateral Security related thereto in any Additional Accounts designated by World Omni as such pursuant to Section 2.4(a) only upon satisfaction of each of the Receivables arising in following conditions on or prior to the related Addition Date; provided, however, conditions (i), (vi) and (viii) below shall be inapplicable to Accounts designated by WODFI as Automatic Additional Accounts under Section 2.5(b) of the Trust Sale and Servicing Agreement; provided further, that if an Additional Account contains Purchased Participation Receivables, whether or not such Account has been designated as an Automatic Additional Account, the Rating Agency Condition must be satisfied on or prior to the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;Addition Date:
(i) World Omni shall provide WODFI and any Enhancement Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) Capital One World Omni shall have delivered to Funding WODFI a duly executed written assignment (including an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (Bacceptance by WODFI) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”)"Assignment") and the computer file or microfiche or written list required to be delivered pursuant to Section 2.1.
(iv) World Omni shall have delivered to WODFI for deposit in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut-Off Date.
(v) (A) No selection procedures believed by World Omni to be adverse to the interests of WODFI or the Beneficiaries were used in selecting such Additional Accounts; and(B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, neither World Omni, WODFI nor the Servicer are insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency.
(vi) Capital One The Rating Agency Condition shall have been satisfied with respect to such addition.
(vii) The addition of the Receivables arising in such Additional Accounts shall not result in the occurrence of an Early Amortization Event or Investment Event.
(viii) World Omni shall have delivered to Funding WODFI and any Enhancement Providers a certificate of an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, Executive Officer confirming the items set forth in clauses paragraphs (iii) through (vvii) above.
(ix) On or before each Addition Date, World Omni shall deliver to WODFI and any Enhancement Providers an Opinion of Counsel for World Omni with respect to the Receivables in the Additional Accounts substantially in the form of Exhibit C. With respect to Automatic Additional Accounts, World Omni shall deliver to WODFI and any Enhancement Providers an Opinion of Counsel for the same time periods as the Transferor is required to deliver under Section 2.5(b) of the Trust Sale and Servicing Agreement.
(c) World Omni hereby represents and warrants as of the applicable Addition Date as to the matters set forth in Section 2.4(b)(v) and (vii). The representations and warranties set forth in Section 2.4(b)(v) shall survive the sale and assignment of the respective Receivables and the related Collateral Security to WODFI. Upon discovery by World Omni or WODFI of a breach of any of the foregoing representations and warranties, the party discovering the breach shall give prompt written notice to the other party and to any Enhancement Providers.
Appears in 1 contract
Addition of Accounts. (a) (i) If, The Seller may from time to time, Funding (A) becomes obligated time offer to designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts to be included as Accounts, subject to the conditions specified in paragraph (b) below. If any such offer is accepted by the Buyer, Receivables and Collateral Security, if any, from such Additional Accounts shall be sold to the Buyer effective on a date (the "Addition Date") specified in a written notice provided by the Seller (or the Servicer on its behalf) to the Buyer and any Enhancement Providers specifying the Additional Cut-off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date or, if the Automatic Addition Condition is satisfied, on the Determination Date following the Collection Period in which such Addition Dates occur (the "Notice Date"). An Addition Notice may relate to one or more Accounts on one or more Addition Dates.
(b) The Seller shall be permitted to convey to the Buyer the Receivables and all Collateral Security, if any, related thereto in any Additional Accounts designated by the Seller as requested by Fundingsuch pursuant to Section 2.4(a) only upon satisfaction of each of the following conditions on or prior to the related Addition Date (except for the condition in clause (vii), if applicable, which shall be satisfied on or before the tenth Business Day after such Notice Date):
(i) The Seller shall provide the Buyer and any Enhancement Providers with a timely Addition Notice.
(ii) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Such Additional Accounts shall all be Eligible Accounts to be included as Additional Accounts.
(biii) On the Addition Date with respect to any designation of Additional Accounts, such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One The Seller shall have delivered to Funding copies the Buyer a duly executed written assignment (including an acceptance by the Buyer) covering the Receivables specified in the Addition Notice in substantially the form of UCC financing statements covering Exhibit A (the "Assignment") and the computer file or microfiche or written list required to be delivered pursuant to Section 2.1.
(iv) The Seller shall have delivered to the Buyer for deposit in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut-off Date.
(v) (A) No selection procedures believed by the Seller to be adverse to the interests of the Buyer or the Beneficiaries were used in selecting such Additional Accounts, if necessary ; (B) the list of Additional Accounts delivered pursuant to perfect Funding’s interest clause (iii) above is true and correct in all material respects as of the Receivables arising therein Additional Cut-off Date and the related Purchased Assets;
(iiC) as of each of the Additional Cut-Off Notice Date and the Addition Date, no Insolvency Event neither the Seller, the Buyer nor the Servicer are insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency.
(vi) If the Automatic Addition Condition is not satisfied with respect to Capital One such addition, the Rating Agency Condition shall have occurred nor been satisfied with respect to such addition.
(vii) If [(A)] one or more of the Additional Accounts specified in such Addition Notice will contain Receivables secured by a security interest in a type of Product that has not been previously financed in the Floorplan Business [or if, as a result of the conveyance of such Additional Accounts, the proportion of the Receivables secured by any type of Product in excess of the limits specified in the Pooling and Servicing Agreement,] [or (B) one or more of the Additional Accounts is supported by a Floorplan Agreement with a Manufacturer that, as of the related Addition Date, is not an Existing Manufacturer,] then, whether or not the Automatic Condition is satisfied, the Rating Agency Condition shall have been satisfied in respect of the sale addition of each Additional Account specified in clauses (A) and (B) on or prior to the related Addition Date.
(viii) The addition of the Receivables arising in the such Additional Accounts and the related Purchased Assets to Funding have been made shall not result in contemplation of the occurrence thereof;of an Pay Out Event.
(iiiix) Capital One The Seller shall have delivered to Funding an Officer’s Certificate the Buyer and any Enhancement Providers a certificate of Capital One, dated a Vice President or more senior officer confirming the Addition items set forth in paragraphs (ii) through (vi) and (viii) above.
(x) On or before each Notice Date, the Seller shall have delivered to the effect that Trustee and any Enhancement Providers (A) Capital One reasonably believes that such addition will not, based on an Opinion of Counsel with respect to the facts known to such officer at Receivables in the time Additional Accounts added since the last delivery of such certification, then cause a Pay Out Event under opinion substantially in the Pooling and Servicing Agreement or any event form of Exhibit E-2 to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) except in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created an addition in connection with such Additional Accounts an addition of Receivables by the Buyer to the Trust required by Section 2.6(a) of the Pooling and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule Servicing Agreement, a Tax Opinion with respect to such Additional Accounts addition; provided that if such Opinion of Counsel and Tax Opinion are required to be delivered, they shall be rendered by outside counsel no less frequently than quarterly.
(c) The Seller hereby represents and warrants as of the applicable Addition Date as to the matters set forth in Section 2.4(b)(v). The representations and warranties set forth in Section 2.4(b)(v) shall survive the case sale and assignment of the respective Receivables and Collateral Security, if any, to the Buyer. Upon discovery by the Seller or the Buyer of a breach of any of the foregoing representations and warranties, the party discovering the breach shall give prompt written notice to the other parties and to any Enhancement Providers.
(d) Notwithstanding anything in this Section 2.4 to the contrary, the additions of Additional Accounts designated pursuant to Subsection 2.02(a)(iSection 2.5 on or prior to the Closing Date for Series 1995-1 need not satisfy clause (i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi), (vii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses or (i) through (v) abovex).
Appears in 1 contract
Samples: Receivables Purchase Agreement (Green Tree Financial Corp)
Addition of Accounts. (a) (i) If, Each Seller may from time to time, Funding (A) becomes obligated time offer to voluntarily designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) AdditionallyAccounts, Capital One may, at its option and with subject to the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
conditions specified in paragraph (b) On below. If any such offer is accepted by the Addition Date with respect to any designation of Additional AccountsBuyer, Receivables and Collateral Security, if any, from such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject be sold to the satisfaction of Buyer (or contributed to the following conditions Buyer in accordance with Section 2.1) effective on such a date (the "Addition Date:
") specified in a written notice provided by the Seller (ior the Servicer on its behalf) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein Buyer and the related Purchased Assets;
(ii) as of each of any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date or, if the Automatic Addition Condition is satisfied, on the Determination Date following the Collection Period in which such Addition Dates occur (the "Notice Date"). An Addition Notice may relate to one or more Accounts on one or more Addition Dates.
(b) Each Seller shall be permitted to convey to the Buyer the Receivables and all Collateral Security, no Insolvency Event if any, related thereto in any Additional Accounts designated by such Seller as such pursuant to Section 2.4(a) only upon satisfaction of each of the following conditions on or prior to the related Addition Date (except for the condition in clause (vii), if applicable, which shall be satisfied on or before the tenth Business Day after such Notice Date):
(i) Such Seller shall provide the Buyer and any Enhancement Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) Such Seller shall have delivered to the Buyer a duly executed written assignment (including an acceptance by the Buyer) covering the Receivables specified in the Addition Notice in substantially the form of Exhibit A modified, if applicable, to reflect contributions to (and by) the general partner of the Buyer (the "Assignment") and the computer file or microfiche or written list required to be delivered pursuant to Section 2.1.
(iv) Such Seller shall have delivered to the Buyer for deposit in the Collection Account all Collections with respect to Capital One such Additional Accounts since the Additional Cut-Off Date.
(v) No selection procedures believed by such Seller to be adverse to the interests of the Buyer or the Beneficiaries were used in selecting such Additional Accounts; (B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, neither such Seller, the Buyer nor the servicer are insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency.
(vi) If the Automatic Addition Condition is not satisfied with respect to such addition, the Rating Agency Condition shall have occurred nor been satisfied with respect to such addition.
(vii) If (A) one or more of the Additional Accounts specified in such Addition Notice will contain Receivables secured by a security interest in a type of Product that has not been previously financed in the Floorplan Business or (B) one or more of the Additional Accounts is supported by a Floorplan Agreement with a Manufacturer that, as of the related Addition Date, is not an Existing Manufacturer, then, whether or not the Automatic Condition is satisfied, the Rating Agency Condition shall have been satisfied in respect of the sale addition of each Additional Account specified in clauses (A) and (B) on or prior to the related Addition Date.
(viii) The addition of the Receivables arising in the such Additional Accounts and the related Purchased Assets to Funding have been made shall not result in contemplation of the occurrence thereof;of an Early Amortization Event.
(iiiix) Capital One Such Seller shall have delivered to Funding an Officer’s Certificate the Buyer and any Enhancement Providers a certificate of Capital One, dated a Vice President or more senior officer confirming the Addition Date, items set forth in paragraphs (ii) through (vi) and (viii) above.
(x) Such Seller shall have delivered to the effect that Trustee and any Enhancement Providers (A) Capital One reasonably believes that such addition will not, based on an Opinion of Counsel with respect to the facts known to such officer at Receivables in the time Additional Accounts added since the last delivery of such certification, then cause a Pay Out Event under opinion substantially in the Pooling and Servicing Agreement or any event form of Exhibit G-2 to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) except in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created an addition in connection with such Additional Accounts an addition of Receivables by the Buyer to the Trust required by Section 2.5(a) of the Pooling and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule Servicing Agreement, a Tax Opinion with respect to such Additional Accounts addition; provided that if such Opinion of Counsel and Tax Opinion are required to be delivered, they shall be rendered by outside counsel no less frequently than quarterly.
(c) Each Seller hereby represents and warrants as of the applicable Addition Date as to the matters set forth in Section 2.4(b)(v). The representations and warranties set forth in Section 2.4(b)(v) shall survive the case sale and assignment of the respective Receivables and Collateral Security, if any, to the Buyer. Upon discovery by either Seller or the Buyer of a breach of any of the foregoing representations and warranties, the party discovering the breach shall give prompt written notice to the other parties and to any Enhancement Providers.
(d) Notwithstanding anything in this Section 2.4 to the contrary, the additions of Additional Accounts designated pursuant to Subsection 2.02(a)(iSection 2.5 on or prior to the Closing Date for Series 1994-1 need not satisfy clause (i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi), (vii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses or (i) through (v) abovex).
Appears in 1 contract
Samples: Receivables Contribution and Sale Agreement (CDF Funding, Inc.)
Addition of Accounts. (a) If, on any day after the FCMT Termination Date, the Aggregate Principal Balance is less than the Minimum Aggregate Principal Balance, either Seller or the Servicer (iwhichever shall first become aware of same) Ifpromptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 days thereafter) Seller shall designate additional Eligible Accounts ("Additional Accounts") to be included as Accounts and shall transfer ------------------- the Receivables in such Additional Accounts to the Issuer, in a sufficient amount so that the Aggregate Principal Balance on such day would have, if the Receivables from such Additional Accounts had been transferred to the Issuer on or prior to such day, at least equaled the Minimum Aggregate Principal Balance.
(b) In addition to its obligation under Section 2.6(a), Seller may, but -------------- shall not be obligated to, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) be included as Accounts, so long as after giving effect to such addition not more than 20% of the Pooling Receivables, by outstanding balance, will be 30 or more days delinquent (and Servicing Agreementfor this purpose, Receivables in an Account shall be considered delinquent if less than 100% of a required payment was received).
(c) Seller agrees that any Receivables from Additional Accounts shall be transferred by Seller to the Issuer under Section 2.6(a), (b) or (Be) elects upon and ------------- --- --- subject to designate Additional Accounts pursuant to Subsection 2.08(bthe following conditions:
(i) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on On or before the eighth fifth Business Day (the "Notice Date") prior to the Addition Date thereforin respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller shall give the Owner Trustee and the Servicer ------------- --- (if a Person other than Seller) written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and upon receipt (B) shall, if such designation of Additional Accounts is made pursuant to Section 2.6(b) or (e) and if the addition of ------------- --- such Additional Accounts
(1) would cause the quotient (the "Annual Quotient") of (x) the --------------- sum of the Annual Account Additions after giving effect to such addition, plus the related Base Amount, divided by (y) the related Base Amount to exceed 1.20, or
(2) would cause the quotient (the "Quarterly Quotient") of (x) ------------------ the sum of the Quarterly Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15; in either case, deliver a letter from each Rating Agency to the Indenture Trustee by the Addition Date confirming that the Rating Agency Condition has been satisfied with respect to the addition of such notice Capital One shall on Additional Accounts;
(iii) On or before prior to the Addition Date, designate sufficient Eligible Accounts to be included as in respect of Additional Accounts as requested added pursuant to Section 2.6(a) or (b), Seller shall have ------------- --- delivered to the Owner Trustee a written Assignment Agreement (including an acceptance by Funding.
the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) in substantially the form of Exhibit A (iithe "Assignment --------- ---------- Agreement") Additionallyand shall have indicated in its books and records, Capital One mayincluding --------- the computer files of the Receivables, at its option and that the Receivables created in connection with the consent Additional Accounts have been transferred by Seller to the Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of Fundingall Additional Accounts identified by account number, designate newly originated Eligible Accounts to be included as and the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts.
(b) On , as of the Addition Date with in respect to any designation of Additional AccountsAccounts added pursuant to Section 2.6(a) or (b), which computer file or ------------- --- microfiche list shall be marked as Schedule 1 to the Assignment Agreement, ---------- delivered to the Owner Trustee as confidential and proprietary, shall be as of the date of such Assignment Agreement and incorporated into and made a part of such Assignment Agreement and this Agreement;
(iv) Seller shall be deemed to represent and warrant that (x) each Additional Account is, as of the Addition Date, an Eligible Account, (y) no selection procedures reasonably believed by Seller to be materially adverse to the interests of the Noteholders were utilized in selecting the Additional Accounts shall become from the available Eligible Accounts, and Funding (z) as of the Addition Date, Seller is not insolvent and will not be rendered insolvent by adding any such Additional Account;
(v) Seller shall purchase Capital One’s be deemed to represent and warrant that, as of the Addition Date, the representations and warranties set out in Schedule 2 are ---------- correct; and, without limiting the generality of the foregoing, the Assignment Agreement constitutes either (x) a valid transfer to the Issuer of all right, title and interest of Seller in, to and under the Receivables then existing and thereafter arising in respect of the Additional Accounts, all monies due or to become due with respect thereto (including all Finance Charge Receivables), and all proceeds of such Additional Accounts Receivables and Insurance Proceeds relating thereto, and such property will be owned by the related Purchased Assets Issuer free and clear of any Lien of any Person, except for (i) Liens permitted under Section 2.5(b), (ii) the Seller Interest and (iii) Seller's right to ------------- receive interest accruing on, and investment earnings in respect of, the Collection Account or any Series Account, as provided in Section 2.01this Agreement and any Indenture Supplement, subject or (y) a grant of a security interest in such property to the satisfaction Issuer, which is enforceable with respect to then existing Receivables of the following conditions on such Addition Date:
(i) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary all monies due or to perfect Funding’s interest in become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables arising therein to the Issuer, and the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event which will be enforceable with respect to Capital One shall have occurred nor shall the sale of the Receivables arising thereafter transferred in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case respect of Additional Accounts, no selection procedure was utilized by Capital One that would result in the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse security interest to the interests Issuer in such property, upon the filing of Funding a financing statement as of the date of the addition;
(iv) Capital One shall have indicated described in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule Section 2.1 with respect to such Additional Accounts (and in ----------- the case of the Receivables of Additional Accounts designated pursuant thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to Subsection 2.02(a)(isuch Receivables, upon such transfer, the Issuer shall have a first priority perfected security interest in such property, except for Liens permitted under Section 2.5(b)), the Seller Interest and Seller's right to receive --------------- interest accruing on, and investment earnings in respect of, the Collection Account or any Series Account, as provided in this Agreement and any Indenture Supplement;
(vi) Seller shall, on the Addition Date for Additional Accounts added pursuant to Section 2.6(a) or (b), deliver a certificate of a Vice ------------- --- President or more senior officer confirming the items set forth in paragraphs (ii), (iii), (iv) and (v) Capital One above; and Funding shall have entered into a duly executed---- ----- ---- ---
(vii) Seller shall, written assignmenton the Addition Date for Additional Accounts added pursuant to Section 2.6(a) or (b), deliver an Opinion of Counsel with ------------- --- respect to the Receivables in the Additional Accounts to the Owner Trustee substantially in the form of Exhibit A (F-2, and which shall be reasonably ----------- acceptable to the “Supplemental Conveyance”); andRating Agencies.
(vid) Capital One Seller shall have delivered provide to Funding an Officer’s Certificate each Rating Agency and to each Enhancement Provider prior written notice each time Additional Accounts are added pursuant to Section 2.6(a) or (b). -------------- ---
(e) In addition to the occasional designation of Capital OneAdditional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), dated Seller agrees that --------------- --- each new MasterCard or VISA account originated in the Addition normal course of FCNB's business after the FCMT Termination Date, confirming, where the Receivables with respect to such accounts are purchased by Seller pursuant to the extent applicableReceivables Purchase Agreement, shall automatically be included as an Account (and the items set forth in clauses Trust Assets arising thereunder automatically transferred to the Issuer) effective on the date on which such account is created; provided, however, that such automatic -------- ------- inclusion and transfer shall not occur with respect to any such account if: (i) through such account does not qualify as an Eligible Account, (vii) above.the transfer to the Issuer of the Receivables in such Account, if such Accounts had been designated by Seller pursuant to Section 2.6(b), would have caused the limitations set ------------- forth in Section 2.6(c)(ii) to be exceeded (unless there shall have been ----------------- delivered to the Indenture Trustee a letter from each Rating Agency confirming the Rating Agency Condition has been satisfied with respect to the addition of such Additional Account), or (iii) Seller otherwise designates such account as an account which is not to be included as an Account pursuant to this Section ------- 2.6
Appears in 1 contract
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) as of the Pooling and Servicing Agreementclose of business on the last Business Day of any Monthly Period, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) the aggregate amount of Principal Receivables is less than the Pooling and Servicing AgreementRequired Principal Balance on such date, then in either case Funding may, at its option, give Capital One written notice thereof the Seller shall on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt close of business on the 10th Business Day following the last Business Day of such notice Capital One shall Monthly Period (the "Required Designation Date"), unless the aggregate amount of Principal Receivables exceeds the Required Principal Balance as of the close of business on or before any day after the Addition last Business Day of such Monthly Period and prior to the Required Designation Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Fundingof the Required Designation Date or any earlier date in a sufficient amount such that, after giving effect to such addition, the aggregate amount of Principal Receivables equals or exceeds the Required Principal Balance on such date. Each such addition shall be subject to the same conditions applicable to any Addition required to be made pursuant to Section 2.08(a) of the Agreement. The failure of any condition set forth in Section 2.08(c) or (d) of the Agreement, as the case may be, shall not relieve the Seller of its obligation pursuant to this paragraph; provided, however, -------- ------- that the failure of the Seller to transfer Receivables to the Trust as provided in this paragraph solely as a result of the unavailability of a sufficient amount of Eligible Receivables shall not constitute a breach of this Supplement; provided further that any such failure which has not been -------- ------- timely cured will nevertheless result in the occurrence of a Pay Out Event with respect to Series 2000-1.
(ii) AdditionallyIn lieu of, Capital One mayor in addition to, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, such designating Additional Accounts shall become Accountspursuant to clause (i) above, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01Seller may, subject to the satisfaction conditions specified in Section 2.08(d) of the following conditions on such Addition Date:
(i) Capital One shall have delivered Agreement, convey to Funding copies the Trust Participation Interests. The addition of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest Participation Interests in the Receivables arising therein Trust pursuant to this paragraph shall be effected by an amendment to the Agreement and this Supplement, dated the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the applicable Addition Date, no Insolvency Event with respect pursuant to Capital One shall have occurred nor shall the sale Section 13.01(a) of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) aboveAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Capital One Master Trust)
Addition of Accounts. (a) If (i) IfRFC IV is required, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(aSection 2.09(a) of the Pooling and Servicing Agreement, to designate additional accounts to the Trust, or (Bii) elects to designate Additional Accounts RFC IV elects, pursuant to Subsection 2.08(bSection 2.09(b) of the Pooling and Servicing Agreement, to designate additional accounts to the Trust, then in either case Funding mayRFC IV, at its option, may give Capital One written notice thereof to FSB; provided, however, that such notice shall be provided on or before the eighth (8th) Business Day prior to immediately preceding the Addition Date therefor, and upon related addition date. Upon receipt of such notice Capital One shall and on or before the Addition Dateprior to such addition date, FSB shall designate sufficient Eligible Accounts as Aggregate Addition Accounts and shall sell to be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One mayRFC IV the Purchased Assets related to such Aggregate Addition Accounts. In addition, at its option and with the consent of FundingRFC IV, FSB may designate newly originated Eligible Accounts as Aggregate Addition Accounts and sell to be included as Additional RFC IV the Purchased Assets related to such Aggregate Addition Accounts.
(b) On At its option and with the Addition Date with respect to any designation consent of Additional AccountsRFC IV, such Additional FSB may designate Eligible Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional as New Accounts and sell to RFC IV the related Purchased Assets as provided in Section 2.01related to such New Accounts. FSB or RFC IV, subject each at its option and by written notice to the satisfaction of the following conditions on such Addition Date:
(i) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One shall have occurred nor shall the sale of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer other party at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) above.least ten
Appears in 1 contract
Samples: Receivables Purchase Agreement
Addition of Accounts. (a) If, on any Record Date, the Aggregate Principal Balance is less than the Minimum Aggregate Principal Balance, either Seller or the Servicer (iwhichever shall first become aware of same) Ifpromptly shall give the Trustee written notice thereof, and as soon as practicable (but in no event later than 10 days thereafter) Seller shall designate additional Eligible Accounts ("Additional Accounts") to be included as Accounts and shall ------------------- transfer the Receivables in such Additional Accounts to the Trust, in a sufficient amount so that the Aggregate Principal Balance on such Record Date would have, if the Receivables from such Additional Accounts had been transferred to the Trust on or prior to such Record Date, at least equaled the Minimum Aggregate Principal Balance. If Seller fails to transfer Receivables as required by the preceding sentence, then the Trustee shall give Seller immediate notice thereof.
(b) In addition to its obligation under subsection 2.6(a), Seller may, ----------------- but shall not be obligated to, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient Eligible Accounts to be included as Accounts.
(c) Seller agrees that any Receivables from Additional Accounts as requested shall be transferred by Funding.Seller to the Trust under subsection 2.6(a), (b) or (e) ----------------- --- --- upon and subject to the following conditions:
(i) On or before the fifth Business Day (the "Notice Date") prior ----------- to the Addition Date in respect of Additional Accounts added pursuant to subsection 2.6(a) or (b), Seller shall give the Trustee and the ----------------- --- Servicer (if a Person other than Seller) written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) AdditionallySeller (A) shall transfer to the Trust Receivables only in Eligible Accounts, Capital One mayand (B) shall, at its option if such designation of Additional Accounts is made pursuant to subsection 2.6(b) or (e) and with the consent addition ----------------- --- of Funding, designate newly originated Eligible Accounts to be included as such Additional Accounts.
(b1) On would cause the quotient (the "Annual Quotient") of (x) --------------- the sum of the Annual Account Additions after giving effect to such addition, plus the related Base Amount, divided by (y) the ---- ------- -- related Base Amount to exceed 1.20, or
(2) would cause the quotient (the "Quarterly Quotient") of ------------------ (x) the sum of the Quarterly Account Additions after giving effect to such addition, plus the related Base Amount, divided by ---- ------- -- (y) the related Base Amount to exceed 1.15; in either case, deliver a letter from each Rating Agency to the Trustee by the Addition Date confirming that the Rating Agency Condition has been satisfied with respect to any designation the addition of such Additional Accounts;
(iii) On or prior to the Addition Date, in respect of Additional Accounts added pursuant to subsection 2.6(a) or (b), Seller shall have ----------------- --- delivered to the Trustee a written transfer agreement (including an acceptance by the Trustee on behalf of the Trust for the benefit of the Investor Certificateholders) in substantially the form of Exhibit ------- A (the "Transfer Agreement") and shall have indicated in its books and - ------------------ records, including the computer files of the Receivables, that the Receivables created in connection with the Additional Accounts have been transferred by Seller to the Trust; and shall have delivered to the Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number, and the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, such as of the Addition Date in respect of Additional Accounts added pursuant to subsection 2.6(a) or (b), which computer file or microfiche list ----------------- --- shall become be marked as Schedule 1 to the Transfer Agreement, delivered to ---------- the Trustee as confidential and proprietary, shall be as of the date of such Transfer Agreement and incorporated into and made a part of such Transfer Agreement and this Agreement;
(iv) Seller shall be deemed to represent and warrant that (x) each Additional Account is, as of the Addition Date, an Eligible Account, (y) no selection procedures reasonably believed by Seller to be materially adverse to the interests of the Investor Certificateholders were utilized in selecting the Additional Accounts from the available Eligible Accounts, and Funding (z) as of the Addition Date, Seller is not insolvent and will not be rendered insolvent by adding any such Additional Account to any Cycle;
(v) Seller shall purchase Capital One’s be deemed to represent and warrant that, as of the Addition Date, the representations and warranties set out in Schedule 2 are true and correct; and without limiting the generality ---------- of the foregoing, the Transfer Agreement constitutes either (x) a valid transfer to the Trust of all right, title and interest of Seller in, to and under the Receivables then existing and thereafter arising in respect of the Additional Accounts, all monies due or to become due with respect thereto (including all Finance Charge Receivables), and all proceeds (including, without limitation, as defined in the UCC as in effect in the applicable jurisdiction) of such Additional Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Trust free and clear of any Lien of any Person, except for (i) Liens permitted under subsection 2.5(b), (ii) the Seller Interest and ----------------- (iii) Seller's right to receive interest accruing on, and investment earnings in respect of, the Finance Charge Accounts, the Principal Accounts and the related Purchased Assets any other Investor Accounts, as provided in Section 2.01this Agreement and any Supplement, subject or (y) a grant of a security interest (as defined in the UCC as in effect in the applicable jurisdiction) in such property to the satisfaction Trust, which is enforceable with respect to then existing Receivables of the following conditions on such Addition Date:
(i) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary all monies due or to perfect Funding’s interest in become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables arising therein to the Trust, and the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event which will be enforceable with respect to Capital One shall have occurred nor shall the sale of the Receivables arising thereafter transferred in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case respect of Additional Accounts, no selection procedure was utilized by Capital One that would result in the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Transfer Agreement constitutes the grant of a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse security interest to the interests Trust in such property, upon the filing of Funding a financing statement as of the date of the addition;
(iv) Capital One shall have indicated described in its computer files that Receivables created in connection Section 2.1 with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with ----------- respect to such Additional Accounts (and in the case of the Receivables of Additional Accounts designated pursuant thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to Subsection 2.02(a)(i));
(v) Capital One and Funding such Receivables, upon such transfer, the Trust shall have entered into a duly executedfirst priority perfected security interest in such property, written assignmentexcept for Liens permitted under subsection 2.5(b), substantially the Seller Interest and Seller's right to receive ----------------- interest accruing on, and investment earnings in respect of, the form of Exhibit A (Finance Charge Accounts, the “Supplemental Conveyance”); andPrincipal Accounts and any other Investor Accounts, as provided in this Agreement and any Supplement;
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital OneSeller shall, dated on the Addition DateDate for Additional Accounts added pursuant to subsection 2.6(a) or (b), confirming, to the extent applicable, deliver a certificate of a ----------------- --- Vice President or more senior officer confirming the items set forth in clauses (iii), (iii), (iv) through and (v) above; and ------------ ----- ---- ---
(vii) Seller shall, on the Addition Date for Additional Accounts added pursuant to subsection 2.6(a) or (b), deliver an Opinion of ----------------- --- Counsel with respect to the Receivables in the Additional Accounts substantially in the form of Exhibit B, and which shall be reasonably --------- acceptable to the Rating Agencies.
(d) Seller shall provide to each Rating Agency and to each Enhancement Provider prior written notice each time Additional Accounts are added pursuant to subsection 2.6(a) or (b). ----------------- ---
(e) In addition to the occasional designation of Additional Accounts as required or permitted pursuant to subsections 2.6(a) and (b) above, ------------------ --- Seller agrees that each new MasterCard or VISA account originated in the normal course of FCNB's business after the Cut Off Date, where Receivables with respect to such accounts are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Trust Assets arising thereunder automatically transferred to the Trust) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to one of Seller's billing cycles; provided, however, that such automatic inclusion and transfer shall -------- ------- not occur with respect to any such account if: (i) such account does not qualify as an Eligible Account, (ii) the inclusion in the Trust of the Receivables in such Account, if such Accounts had been designated by Seller pursuant to subsection 2.6(b), would have caused the limitations set forth ----------------- in subsection 2.6(c)(ii) to be exceeded (unless there shall have been --------------------- delivered to the Trustee a letter from each Rating Agency confirming the Rating Agency Condition has been satisfied with respect to the addition of such Additional Account), or (iii) Seller otherwise designates such account as an account which is not to be included as an Account pursuant to this subsection 2.6(e). On or before the fifth Business Day of each month next ----------------- succeeding a calendar month in which Accounts were included pursuant to the preceding sentence, Seller shall (i) indicate in its books and records, including the computer files of the receivables, that the Receivables created in connection with such included Accounts have been transferred to the Trust, and (ii) shall deliver to the Trustee a computer file or microfiche list containing a true and complete list of all such included Accounts identified by account number and by the Receivables balance and Principal Receivables balance as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Trustee as confidential and proprietary and incorporated into and made a part of this Agreement.
Appears in 1 contract
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) as of the Pooling and Servicing Agreementclose of business on the last Business Day of any Monthly Period, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) the aggregate amount of Principal Receivables is less than the Pooling and Servicing AgreementRequired Principal Balance on such date, then in either case Funding may, at its option, give Capital One written notice thereof the Seller shall on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt close of business on the 10th Business Day following the last Business Day of such notice Capital One shall Monthly Period (the "Required Designation Date"), unless the aggregate amount of Principal Receivables exceeds the Required Principal Balance as of the close of business on or before any day after the Addition last Business Day of such Monthly Period and prior to the Required Designation Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Fundingof the Required Designation Date or any earlier date in a sufficient amount such that, after giving effect to such addition, the aggregate amount of Principal Receivables equals or exceeds the Required Principal Balance on such date. Each such addition shall be subject to the same conditions applicable to any Addition required to be made pursuant to Section 2.08(a) of the Agreement. The failure of any condition set forth in Section 2.08(c) or (d) of the Agreement, as the case may be, shall not relieve the Seller of its obligation pursuant to this paragraph; provided, however, that -------- ------- the failure of the Seller to transfer Receivables to the Trust as provided in this paragraph solely as a result of the unavailability of a sufficient amount of Eligible Receivables shall not constitute a breach of this Supplement; provided further that any such failure which has not been timely cured will -------- ------- nevertheless result in the occurrence of a Pay Out Event with respect to Series 2000-5.
(ii) AdditionallyIn lieu of, Capital One mayor in addition to, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, such designating Additional Accounts shall become Accountspursuant to clause (i) above, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01Seller may, subject to the satisfaction conditions specified in Section 2.08(d) of the following conditions on such Addition Date:
(i) Capital One shall have delivered Agreement, convey to Funding copies the Trust Participation Interests. The addition of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest Participation Interests in the Receivables arising therein Trust pursuant to this paragraph shall be effected by an amendment to the Agreement and this Supplement, dated the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the applicable Addition Date, no Insolvency Event with respect pursuant to Capital One shall have occurred nor shall the sale Section 13.01(a) of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) aboveAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Capital One Master Trust)
Addition of Accounts. (a) (i) If, The Seller may from time to time, Funding (A) becomes obligated time offer to voluntarily designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) AdditionallyAccounts, Capital One may, at its option and with subject to the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
conditions specified in paragraph (b) On below. If any such offer is accepted by the Addition Date with respect to any designation of Additional AccountsBuyer, Receivables and Collateral Security, if any, from such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject be sold to the satisfaction of Buyer (or contributed to the following conditions Buyer in accordance with Section 2.1) effective on such a date (the "Addition Date:
") specified in a written notice provided by the Seller (ior the Servicer on its behalf) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein Buyer and the related Purchased Assets;
(ii) as of each of any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date or, if the Automatic Addition Condition is satisfied, on the Determination Date following the Collection Period in which such Addition Dates occur (the "Notice Date"). An Addition Notice may relate to one or more Accounts on one or more Addition Dates.
(b) The Seller shall be permitted to convey to the Buyer the Receivables and all Collateral Security, no Insolvency Event if any, related thereto in any Additional Accounts designated by the Seller as such pursuant to Section 2.4(a) only upon satisfaction of each of the following conditions on or prior to the related Addition Date (except for the condition in clause (vii), if applicable, which shall be satisfied on or before the tenth Business Day after such Notice Date):
(i) The Seller shall provide the Buyer and any Enhancement Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) The Seller shall have delivered to the Buyer a duly executed written assignment (including an acceptance by the Buyer) covering the Receivables specified in the Addition Notice in substantially the form of Exhibit A (the "Assignment") and the computer file or microfiche or written list required to be delivered pursuant to Section 2.1.
(iv) The Seller shall have delivered to the Buyer for deposit in the Collection Account all Collections with respect to Capital One such Additional Accounts since the Additional Cut-Off Date.
(v) (A) No selection procedures believed by the Seller to be adverse to the interests of the Buyer or the Beneficiaries were used in selecting such Additional Accounts; (B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, neither the Seller, the Buyer nor the Servicer are insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency.
(vi) If the Automatic Addition Condition is not satisfied with respect to such addition, the Rating Agency Condition shall have occurred nor been satisfied with respect to such addition.
(vii) If (A) one or more of the Additional Accounts specified in such Addition Notice will contain Receivables secured by a security interest in a type of Product that has not been previously financed in the Floorplan Business or (B) one or more of the Additional Accounts is supported by a Floorplan Agreement with a Manufacturer that, as of the related Addition Date, is not an Existing Manufacturer, then, whether or not the Automatic Condition is satisfied, the Rating Agency Condition shall have been satisfied in respect of the sale addition of each Additional Account specified in clauses (A) and (B) on or prior to the related Addition Date.
(viii) The addition of the Receivables arising in the such Additional Accounts and the related Purchased Assets to Funding have been made shall not result in contemplation of the occurrence thereof;of an Early Amortization Event.
(iiiix) Capital One The Seller shall have delivered to Funding an Officer’s Certificate the Buyer and any Enhancement Providers a certificate of Capital One, dated a Vice President or more senior officer of its general partner confirming the Addition Date, items set forth in paragraphs (ii) through (vi) and (viii) above.
(x) The Seller shall have delivered to the effect that Trustee and any Enhancement Providers (A) Capital One reasonably believes that such addition will not, based on an Opinion of Counsel with respect to the facts known to such officer at Receivables in the time Additional Accounts added since the last delivery of such certification, then cause a Pay Out Event under opinion substantially in the Pooling and Servicing Agreement or any event form of Exhibit G-2 to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) except in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created an addition in connection with such Additional Accounts an addition of Receivables by the Buyer to the Trust required by Section 2.5(a) of the Pooling and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule Servicing Agreement, a Tax Opinion with respect to such Additional Accounts (in the case addition; provided that if such Opinion of Additional Accounts designated pursuant Counsel and Tax Opinion are required to Subsection 2.02(a)(i));be delivered, they shall be rendered by outside counsel no more frequently than quarterly.
(vc) Capital One The Seller hereby represents and Funding warrants as of the applicable Addition Date as to the matters set forth in Section 2.4(b)(v). The representations and warranties set forth in Section 2.4(b)(v) shall have entered into a duly executedsurvive the sale and assignment of the respective Receivables and Collateral Security, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirmingif any, to the extent applicableBuyer. Upon discovery by the Seller or the Buyer of a breach of any of the foregoing representations and warranties, the items set forth in clauses (i) through (v) aboveparty discovering the breach shall give prompt written notice to the other party and to any Enhancement Providers.
Appears in 1 contract
Samples: Receivables Contribution and Sale Agreement (Distribution Financial Services Floorplan Master Trust)
Addition of Accounts. (a) (i) If, TFC may from time to time, Funding (A) becomes obligated time offer to voluntarily designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient Eligible additional Accounts to be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, subject to the conditions specified in Section 2.4(b). Receivables and the related Collateral Security from such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, be sold to and under TRC III effective on a date (the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such “Addition Date:
”) specified in a written notice provided by TFC (ior the Servicer on its behalf) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assets;
(ii) as of each of TRC III specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the “Addition Notice”) on or before the tenth Business Day but not more than the 30th day prior to the related Addition Date (the “Notice Date, no Insolvency Event with respect ”).
(b) TFC shall be permitted to Capital One shall have occurred nor shall convey to TRC III the sale Receivables and all Collateral Security related thereto in any Additional Accounts designated by TFC as such pursuant to Section 2.4(a) only upon satisfaction of each of the Receivables arising in the Additional Accounts and following conditions on or prior to the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;Addition Date:
(iiii) Capital One TFC shall have delivered to Funding TRC III a duly executed written assignment (including an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (Bacceptance by TRC III) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental ConveyanceAssignment”); and) and any computer file or microfiche or written list required to be delivered pursuant to Section 2.1.
(viii) Capital One TFC shall, to the extent that TRC III is required to make any related deposit pursuant to Section 4.2 of the Sale and Servicing Agreement, have delivered to TRC III for deposit in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut-Off Date.
(iii) (A) Other than selection procedures required by the Basic Documents, no selection procedures reasonably believed by TFC to be materially adverse to the interests of TRC III or the Holders were used in selecting such Additional Accounts; (B) the list of Additional Accounts delivered pursuant to clause (i) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, TFC is not insolvent nor will have been made insolvent by such transfer nor is aware of any pending insolvency.
(iv) The addition of the Receivables arising in such Additional Accounts shall not result in the occurrence of an Early Amortization Event for any Series of Investor Interests.
(v) TFC shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, TRC III and any Agent a certificate confirming the items set forth in clauses paragraphs (i) through (viv) above.
(vi) TFC shall have delivered notice to each of the Rating Agencies on or before the tenth Business Day but not more than the 30th day prior to the related Addition Date. With respect to Designated Additional Accounts and Automatic Additional Accounts, TFC shall deliver to TRC III and any Agent an Opinion of Counsel for the same time periods as TRC III is required to deliver under Section 2.5(b) of the Sale and Servicing Agreement.
(c) The representations and warranties set forth in the certificate delivered pursuant to Section 2.4(b)(v) shall survive the sale and assignment of the respective Receivables and the related Collateral Security to TRC III. Upon discovery by TFC or TRC III of a breach of any of the foregoing representations and warranties, the party discovering the breach shall give prompt written notice to the other party and to the Trust.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Textron Financial Corp)
Addition of Accounts. (a) (i) If, from time to time, Funding MRI (A) becomes obligated to designate Additional Supplemental Accounts pursuant to Subsection 2.08(asubsection 2.6(c) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Supplemental Accounts pursuant to Subsection 2.08(bsubsection 2.6(d) of the Pooling and Servicing Agreement, then then, in either case Funding case, MRI may, at its option, give Capital One HRAC II written notice thereof on or before the eighth fifth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One HRAC II shall on or before the Addition Date, designate sufficient Eligible Accounts to be included as Additional Supplemental Accounts as requested by FundingMRI.
(ii) Additionally, Capital One HRAC II may, at its option and with the consent of FundingMRI, designate newly originated Eligible Accounts to be included as Automatic Additional Accounts.
(b) On the Addition Date with respect to any designation of Automatic Additional Accounts or Supplemental Accounts, as the case may be, such Automatic Additional Accounts or Supplemental Accounts shall become Accounts, and Funding MRI shall purchase Capital OneHRAC II’s right, title and interest in, to and under the Receivables in such Automatic Additional Accounts or Supplemental Accounts, as the case may be, and the related Purchased Assets property, as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One HRAC II shall have delivered to Funding MRI copies of UCC financing statements covering such Additional Accounts, if necessary to perfect FundingMRI’s interest in the Receivables arising therein and the related Purchased Assetsproperty;
(ii) as of on each of the Additional Addition Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One shall have occurred nor shall the sale of the Receivables arising in the such Automatic Additional Accounts or Supplemental Accounts, as the case may be, and the related Purchased Assets property, to Funding MRI shall not have caused HRAC II’s insolvency or have been made in contemplation of the occurrence thereofHRAC II’s insolvency;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One HRAC II that would result in a selection of such Additional Accounts (from the available Eligible Accounts owned by Capital Oneavailable to HRAC II) that would be materially adverse to the interests of Funding MRI as of the date of the additionAddition Date;
(iv) Capital One HRAC II shall have indicated in its accounting, computer files and other records that Receivables created in connection with such Automatic Additional Accounts or Supplemental Accounts, as the case may be, and the related Purchased Assets property, have been sold to Funding MRI and shall have delivered to Funding MRI the required Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i))Schedule;
(v) Capital One HRAC II and Funding MRI shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One HRAC II shall have delivered to Funding MRI an Officer’s Certificate of Capital OneHRAC II, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) above.
(vii) Unless otherwise specified in the related Supplement, all of the conditions precedent set forth in Section 2.6(e) of the Pooling and Servicing Agreement shall have been satisfied.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Metris Master Trust)
Addition of Accounts. (a) (i) If, The Seller may from time to time, Funding (A) becomes obligated time offer to voluntarily designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) AdditionallyAccounts, Capital One may, at its option and with subject to the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
conditions specified in paragraph (b) On below. If any such offer is accepted by the Addition Date with respect to any designation of Additional AccountsBuyer, Receivables and Collateral Security, if any, from such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject be sold to the satisfaction of Buyer (or contributed to the following conditions Buyer in accordance with Section 2.1) effective on such a date (the "Addition Date:
") specified in a written notice provided by the Seller (ior the Servicer on its behalf) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein Buyer and the related Purchased Assets;
(ii) as of each of any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date or, if the Contribution and Sale Agreement Automatic Addition Condition is satisfied, on the Determination Date following the Collection Period in which such Addition Dates occur (the "Notice Date"). An Addition Notice may relate to one or more Accounts on one or more Addition Dates.
(b) The Seller shall be permitted to convey to the Buyer the Receivables and all Collateral Security, no Insolvency Event if any, related thereto in any Additional Accounts designated by the Seller as such pursuant to Section 2.4(a) only upon satisfaction of each of the following conditions on or prior to the related Addition Date (except for the condition in clause (vii), if applicable, which shall be satisfied on or before the tenth Business Day after such Notice Date):
(i) The Seller shall provide the Buyer and any Enhancement Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) The Seller shall have delivered to the Buyer a duly executed written assignment (including an acceptance by the Buyer) covering the Receivables specified in the Addition Notice in substantially the form of Exhibit A (the "Assignment") and the computer file or microfiche or written list required to be delivered pursuant to Section 2.1.
(iv) The Seller shall have delivered to the Buyer for deposit in the Collection Account all Collections with respect to Capital One such Additional Accounts since the Additional Cut-Off Date.
(v) (A) No selection procedures believed by the Seller to be adverse to the interests of the Buyer or the Beneficiaries were used in selecting such Additional Accounts; (B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, neither the Seller, the Buyer nor the Servicer are insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency.
(vi) If the Automatic Addition Condition is not satisfied with respect to such addition, the Rating Agency Condition shall have occurred nor been satisfied with respect to such addition.
(vii) If (A) one or more of the Additional Accounts specified in such Addition Notice will contain Receivables secured by a security interest in a type of Product that has not been previously financed in the Floorplan Business or (B) one or more of the Additional Accounts is supported by a Floorplan Agreement with a Manufacturer that, as of the related Addition Date, is not an Existing Manufacturer, then, whether or not the Automatic Condition is satisfied, the Rating Agency Condition shall have been satisfied in respect of the sale addition of each Additional Account specified in clauses (A) and (B) on or prior to the related Addition Date.
(viii) The addition of the Receivables arising in the such Additional Accounts and the related Purchased Assets to Funding have been made shall not result in contemplation of the occurrence thereof;of an Early Amortization Event. Contribution and Sale Agreement
(iiiix) Capital One The Seller shall have delivered to Funding an Officer’s Certificate the Buyer and any Enhancement Providers a certificate of Capital One, dated a Vice President or more senior officer of its general partner confirming the Addition Date, items set forth in paragraphs (ii) through (vi) and (viii) above.
(x) The Seller shall have delivered to the effect that Trustee and any Enhancement Providers (A) Capital One reasonably believes that such addition will not, based on an Opinion of Counsel with respect to the facts known to such officer at Receivables in the time Additional Accounts added since the last delivery of such certification, then cause a Pay Out Event under opinion substantially in the Pooling and Servicing Agreement or any event form of Exhibit G-2 to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) except in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created an addition in connection with such Additional Accounts an addition of Receivables by the Buyer to the Trust required by Section 2.5(a) of the Pooling and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule Servicing Agreement, a Tax Opinion with respect to such Additional Accounts (in the case addition; provided that if such Opinion of Additional Accounts designated pursuant Counsel and Tax Opinion are required to Subsection 2.02(a)(i));be delivered, they shall be rendered by outside counsel no more frequently than quarterly.
(vc) Capital One The Seller hereby represents and Funding warrants as of the applicable Addition Date as to the matters set forth in Section 2.4(b)(v). The representations and warranties set forth in Section 2.4(b)(v) shall have entered into a duly executedsurvive the sale and assignment of the respective Receivables and Collateral Security, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirmingif any, to the extent applicableBuyer. Upon discovery by the Seller or the Buyer of a breach of any of the foregoing representations and warranties, the items set forth in clauses (i) through (v) aboveparty discovering the breach shall give prompt written notice to the other party and to any Enhancement Providers.
Appears in 1 contract
Samples: Receivables Contribution and Sale Agreement (CDF Funding, Inc.)
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) All accounts created after the Series 1996-1 Closing Date which meet the definition of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient Eligible Accounts to shall be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One may, at its option from and with after the consent of Funding, designate newly originated date upon which such Eligible Accounts are created and all Receivables in such Eligible Accounts, whether such Receivables are existing or thereafter created, shall be transferred automatically to be included as Additional Accountsthe Trust upon purchase by the Transferor from the Originator.
(b) Subject to Section 2.05(c) and (d), the Transferor may, but shall not be obligated to, designate from time to time additional credit card accounts with respect to receivables arising from Alternative Programs ("Eligible Alternative Accounts") to be included as Accounts and convey the Eligible Alternative Receivables arising from such Eligible Alternative Accounts to the Trust.
(c) The Transferor shall be permitted to designate and assign Eligible Alternative Receivables from Eligible Alternative Accounts only upon satisfaction of the following conditions:
(i) The Transferor shall designate only Eligible Alternative Accounts;
(ii) On or prior to each Addition Date in respect of Eligible Alternative Accounts, the Transferor shall have executed and delivered to the Trustee a written assignment (including an acceptance by the Trustee for the benefit of the Certificateholders) in substantially the form of Exhibit B (the "Assignment") and a true and complete list --------- ---------- identifying all such Eligible Alternative Accounts specifying for each such Account, as of the Addition Notice Date, its account number. Such list shall be as of the Addition Date with respect to any designation such Assignment and shall be incorporated into and made part of Additional Accountssuch Assignment and this Agreement; in the event that the Servicer is then required to make daily deposits into the Collection Account pursuant to Section 4.01(h), such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, the Transferor on or prior to and under each Addition Date will deposit into the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject Collection Account an amount equal to the satisfaction of Collections which have been processed on the following conditions on Eligible Alternative Accounts from their applicable Addition Notice Date through the Business Day preceding such Addition Date:
(i) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One shall have occurred nor shall the sale of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered The Transferor represents and warrants (x) as of each Addition Date with respect to Funding an Officer’s Certificate Eligible Alternative Accounts added pursuant to Sections 2.05(b) and 2.05(c) that (a) the list of Capital OneEligible Alternative Accounts, dated as of the Addition Notice Date, to complies in all material respects with the effect that requirements of paragraph (Aii) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement above and (Bb) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result the Transferor in a selection of Additional selecting the Eligible Alternative Accounts (from the available Eligible Accounts owned by Capital One) that would be materially which is adverse to the interests of Funding the Investor Certificateholders; and (y) as of the date Addition Notice Date and as of the additionAddition Date, the Transferor is not insolvent;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and The Transferor shall have delivered to Funding the Account Schedule with respect to Trustee written confirmation from each Rating Agency that such Additional Accounts (in the case Rating Agency will not reduce or withdraw its rating on any outstanding Series as a result of Additional Accounts designated pursuant to Subsection 2.02(a)(i))such addition;
(v) Capital One On or before each Addition Date, the Transferor shall deliver a certificate of a Vice President or more senior officer confirming the items set forth in paragraphs (ii), (iii) and Funding (iv) above. The Trustee may conclusively rely on such certificate, shall have entered into a duly executedno duty to make inquiries with regard to matters set forth therein and shall incur no liability in so relying; and
(vi) On or before each Addition Date, written assignmentthe Transferor shall deliver to the Trustee and each Rating Agency, an Opinion of Counsel (which, in this instance, shall be outside counsel to the Transferor) with respect to the Receivables in the Eligible Alternative Accounts substantially in the form of Exhibit A (F. Upon satisfaction of the “Supplemental Conveyance”); andabove conditions, the Transferor shall execute and deliver the Assignment to the Trustee, and the Eligible Alternative Receivables from the Eligible Alternative Accounts shall be conveyed to the Trust as provided in the Assignment.
(vid) Capital One The Transferor shall have delivered be permitted to Funding an Officer’s Certificate designate Eligible Alternative Accounts and convey such Eligible Alternative Accounts and the Eligible Alternative Receivables arising out of Capital One, dated the Addition Date, confirming, such Eligible Alternative Accounts pursuant to the extent applicable, the items set forth in clauses Sections 2.05(b) and (c) until either (i) through the number of Eligible Alternative Accounts equal 10% of the number of Eligible Accounts and Eligible Alternative Accounts (vthe "Ten Percent Number Test") aboveor (ii) the aggregate dollar amount of Eligible Alternative Accounts equals 10% of the aggregate dollar amount of Eligible Accounts and Eligible Alternative Accounts (the "Ten Percent Aggregate Test"); together with the Ten Percent Number Test, the "Ten Percent Tests"). When either Ten Percent Test has been met, the Transferor must request written confirmation from each Rating Agency that such Rating Agency will not reduce or withdraw its rating on any outstanding Series as a result of the inclusion of additional Eligible Alternative Accounts from a designated Alternative Program and the related Eligible Alternative Receivables. The Transferor is not required to obtain written confirmation from each Rating Agency if the Transferor elects to maintain (x) the number of Eligible Alternative Accounts below the Ten Percent Number Test and (y) the aggregate dollar amount of Eligible Alternative Receivables below the Ten Percent Aggregate Test.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Firestone Retail Credit Corp)
Addition of Accounts. (a) (i) If, VCI may from time to time, Funding (A) becomes obligated time offer to voluntarily designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) AdditionallyAccounts, Capital One may, at its option and with subject to the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
conditions specified in paragraph (b) On below. If any such offer is accepted by VDF, Receivables and the Addition Date with respect to any designation of Additional Accounts, related Collateral Security from such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, be sold to and under VDF effective on a date (the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such “Addition Date:
”) specified in a written notice provided by VCI (ior the Servicer on its behalf) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein VDF and the related Purchased Assets;
(ii) as of each of any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the “Addition Notice”) on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date (the “Notice Date, no Insolvency Event with respect ”).
(b) VCI shall be permitted to Capital One shall have occurred nor shall convey to VDF the sale Receivables and all Collateral Security related thereto in any Additional Accounts designated by VCI as such pursuant to Section 2.4(a) only upon satisfaction of each of the Receivables arising in following conditions on or prior to the related Addition Date; provided, however, conditions (i), (vi), (vii) and (viii) below shall be inapplicable to Accounts designated by VDF as Automatic Additional Accounts and the related Purchased Assets to Funding have been made in contemplation under Section 2.5(b) of the occurrence thereof;Trust Sale and Servicing Agreement:
(i) VCI shall provide VDF and any Enhancement Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) Capital One VCI shall have delivered to Funding VDF a duly executed written assignment (including an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (Bacceptance by VDF) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental ConveyanceAssignment”)) and the computer file or microfiche or written list (which may be in electronic form) required to be delivered pursuant to Section 2.1.
(iv) VCI shall have delivered to VDF for deposit in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut-Off Date.
(v) (A) No selection procedures believed by VCI to be adverse to the interests of VDF or the Beneficiaries were used in selecting such Additional Accounts; and(B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, neither VCI, VDF nor the Servicer is insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency.
(vi) Capital One After giving effect to the addition of such Additional Accounts, (a) the result of (i) the Pool Balance minus the aggregate Invested Amount for all Series minus (ii) the outstanding principal balance of the VDF Subordinated Note is greater than or equal to (b) 6.75% of the Pool Balance.
(vii) The addition of the Receivables arising in such Additional Accounts shall not result in the occurrence of an Early Amortization Event.
(viii) VCI shall have delivered to Funding VDF and any Enhancement Providers a certificate of an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, Executive Officer confirming the items set forth in clauses paragraphs (iii) through (vvii) above. With respect to Automatic Additional Accounts, VCI shall deliver to VDF and any Enhancement Providers an Opinion of Counsel for the same time periods as the Transferor is required to deliver under Section 2.5(b) of the Trust Sale and Servicing Agreement.
(c) VCI hereby represents and warrants as of the applicable Addition Date as to the matters set forth in Section 2.4(b)(v) and (vii). The representations and warranties set forth in Section 2.4(b)(v) shall survive the sale, contribution and assignment of the respective Receivables and the related Collateral Security to VDF. Upon discovery by VCI or VDF of a breach of any of the foregoing representations and warranties, the party discovering the breach shall give prompt written notice to the other party and to any Enhancement Providers.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Volkswagen Credit Auto Master Owner Trust)
Addition of Accounts. (a) (i) If, World Omni may from time to time, Funding (A) becomes obligated time offer to voluntarily designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) AdditionallyAccounts, Capital One may, at its option and with subject to the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
conditions specified in paragraph (b) On below. If any such offer is accepted by WODFI, Receivables and the Addition Date with respect to any designation of Additional Accounts, related Collateral Security from such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, be sold to and under WODFI effective on a date (the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such "Addition Date:
") specified in a written notice provided by World Omni (ior the Servicer on its behalf) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein WODFI and the related Purchased Assets;
(ii) as of each of any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date (the "Notice Date, no Insolvency Event with respect ").
(b) World Omni shall be permitted to Capital One shall have occurred nor shall convey to WODFI the sale Receivables and all Collateral Security related thereto in any Additional Accounts designated by World Omni as such pursuant to Section 2.4(a) only upon satisfaction of each of the Receivables arising in following conditions on or prior to the related Addition Date; provided, however, conditions (i), (vi) and (viii) below shall be inapplicable to Accounts designated by WODFI as Automatic Additional Accounts under Section 2.5(b) of the Trust Sale and Servicing Agreement; provided further, that if an Additional Account contains Purchased Participation Receivables, whether or not such Account has been designated as an Automatic Additional Account, the Rating Agency Condition must be satisfied on or prior to the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;Addition Date:
(i) World Omni shall provide WODFI and any Enhancement Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) Capital One World Omni shall have delivered to Funding WODFI a duly executed written assignment (including an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (Bacceptance by WODFI) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”)"Assignment") and the computer file or microfiche or written list required to be delivered pursuant to Section 2.1.
(iv) World Omni shall have delivered to WODFI for deposit in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut- Off Date.
(v) (A) No selection procedures believed by World Omni to be adverse to the interests of WODFI or the Beneficiaries were used in selecting such Additional Accounts; and(B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, neither World Omni, WODFI nor the Servicer are insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency.
(vi) Capital One The Rating Agency Condition shall have been satisfied with respect to such addition.
(vii) The addition of the Receivables arising in such Additional Accounts shall not result in the occurrence of an Early Amortization Event or Investment Event.
(viii) World Omni shall have delivered to Funding WODFI and any Enhancement Providers a certificate of an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, Executive Officer confirming the items set forth in clauses paragraphs (iii) through (vvii) above.
(ix) On or before each Addition Date, World Omni shall deliver to WODFI and any Enhancement Providers an Opinion of Counsel for World Omni with respect to the Receivables in the Additional Accounts substantially in the form of Exhibit C. With respect to Automatic Additional Accounts, World Omni shall deliver to WODFI and any Enhancement Providers an Opinion of Counsel for the same time periods as the Transferor is required to deliver under Section 2.5(b) of the Trust Sale and Servicing Agreement.
(c) World Omni hereby represents and warrants as of the applicable Addition Date as to the matters set forth in Section 2.4(b)(v) and (vii). The representations and warranties set forth in Section 2.4(b)(v) shall survive the sale and assignment of the respective Receivables and the related Collateral Security to WODFI. Upon discovery by World Omni or WODFI of a breach of any of the foregoing representations and warranties, the party discovering the breach shall give prompt written notice to the other party and to any Enhancement Providers.
Appears in 1 contract
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) as of the Pooling and Servicing Agreementclose of business on the last Business Day of any Monthly Period, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) the aggregate amount of Principal Receivables is less than the Pooling and Servicing AgreementRequired Principal Balance on such date, then in either case Funding may, at its option, give Capital One written notice thereof the Seller shall on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt close of business on the 10th Business Day following the last Business Day of such notice Capital One shall Monthly Period (the "Required Designation Date"), unless the aggregate amount of Principal Receivables exceeds the Required Principal Balance as of the close of business on or before any day after the Addition last Business Day of such Monthly Period and prior to the Required Designation Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Fundingof the Required Designation Date or any earlier date in a sufficient amount such that, after giving effect to such addition, the aggregate amount of Principal Receivables equals or exceeds the Required Principal Balance on such date. Each such addition shall be subject to the same conditions applicable to any Addition required to be made pursuant to Section 2.08(a) of the Agreement. The failure of any condition set forth in Section 2.08(c) or (d) of the Agreement, as the case may be, shall not relieve the Seller of its obligation pursuant to this paragraph; provided, however, -------- ------- that the failure of the Seller to transfer Receivables to the Trust as provided in this paragraph solely as a result of the unavailability of a sufficient amount of Eligible Receivables shall not constitute a breach of this Supplement; provided further that any such failure which has not been -------- ------- timely cured will nevertheless result in the occurrence of a Pay Out Event with respect to Series 1999-2.
(ii) AdditionallyIn lieu of, Capital One mayor in addition to, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, such designating Additional Accounts shall become Accountspursuant to clause (i) above, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01Seller may, subject to the satisfaction conditions specified in Section 2.03(d) of the following conditions on such Addition Date:
(i) Capital One shall have delivered Agreement, convey to Funding copies the Trust Participation Interests. The addition of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest Participation Interests in the Receivables arising therein Trust pursuant to this paragraph shall be effected by an amendment to the Agreement and this Supplement, dated the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the applicable Addition Date, no Insolvency Event with respect pursuant to Capital One shall have occurred nor shall the sale Section 13.01(a) of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) aboveAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Capital One Master Trust)
Addition of Accounts. (a) (i) If, from time to time, Funding (A) becomes obligated to designate Additional Accounts pursuant to Subsection 2.08(a) All accounts created after the Series 1996-1 Closing Date which meet the definition of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient Eligible Accounts to shall be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One may, at its option from and with after the consent of Funding, designate newly originated date upon which such Eligible Accounts are created and all Receivables in such Eligible Accounts, whether such Receivables are existing or thereafter created, shall be transferred automatically to be included as Additional Accountsthe Trust upon purchase by the Transferor from the Originator.
(b) Subject to Section 2.04(c) and (d), CFNA may, but shall not be obligated to, designate from time to time additional credit card accounts with respect to Receivables arising from Alternative Programs ("Eligible Alternative Accounts") to be included as Accounts and convey the Eligible Alternative Receivables arising from such Eligible Alternative Accounts to the Trust.
(c) CFNA shall be permitted to designate and assign Eligible Alternative Receivables from Eligible Alternative Accounts only upon satisfaction of the following conditions.
(i) CFNA shall designate only Eligible Alternative Accounts;
(ii) On or prior to each Addition Date in respect of Eligible Alternative Accounts, CFNA shall have executed and delivered to the Company a written assignment in substantially the form of Exhibit _ (the "Assignment") and a true and complete list identifying all such Eligible Alternative Accounts specifying for each such Account, as of the Addition Notice Date, its account number. Such list shall be as of the Addition Date with respect to any designation such Assignment and shall be incorporated into and made a part of Additional Accounts, such Additional Accounts shall become Accounts, Assignment and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One shall have occurred nor shall the sale of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereofthis Agreement;
(iii) Capital One shall have delivered CFNA represents and warrants (x) as of each Addition Date with respect to Funding an Officer’s Certificate Eligible Alternative Accounts added pursuant to Section 2.04(b) and 2.04(c) that (a) the list of Capital OneEligible Alternative Accounts, dated as of the Addition Notice Date, to complies in all material respects with the effect that requirements of paragraph (Aii) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement above and (Bb) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result CFNA in a selection of Additional selecting the Eligible Alternative Accounts (from the available Eligible Accounts owned by Capital One) that would be materially which is adverse to the interests of Funding the Company and (y) as of the date Addition Notice Date and as of the additionAddition Date, is not insolvent;
(iv) Capital One shall have indicated in The Company has received written confirmation from each Rating Agency that such Rating Agency will not reduce or withdraw its computer files that Receivables created in connection with rating on any outstanding Series as a result of such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i))addition;
(v) Capital One On or before each Addition Date, CFNA shall deliver a certificate of a Vice President or more senior officer confirming the items set forth in paragraphs (ii), (iii) and Funding (iv) above. The Company may conclusively rely on such certificate, shall have entered into a duly executednot duty to make inquiries with regard to matters set forth therein and shall incur no liability in so relying; and
(vi) On or before each Addition Date, written assignmentthe Company shall deliver to the Trustee and each Rating Agency, an Opinion of Counsel (which, in this instance, shall be outside counsel to the Transferor) with respect to the Receivables in the Eligible Alternative Accounts substantially in the form of Exhibit A (F to the “Supplemental Conveyance”); andPooling and Servicing Agreement. Upon satisfaction of the above conditions, CFNA shall execute and deliver the Assignment to the Company, and the Eligible Alternative Receivables from the Eligible Alternative Accounts shall be conveyed to the Company as provided in the Assignment.
(vid) Capital One CFNA shall have delivered be permitted to Funding an Officer’s Certificate designate Eligible Alternative Accounts and convey such Eligible Alternative Accounts and the Eligible Alternative Receivables arising out of Capital One, dated the Addition Date, confirming, such Eligible Alternative Accounts pursuant to the extent applicable, the items set forth in clauses Sections 2.04(b) and (c) until either (i) through the number of Eligible Alternative Accounts equals 10% of the number of Eligible Accounts and Eligible Alternative Accounts (vthe "Ten Percent Number Test") aboveor (ii) the aggregate dollar amount of Eligible Alternative Accounts equals 10% of the aggregate dollar amount of Eligible Accounts and Eligible Alternative Accounts (the "Ten Percent Aggregate Test") together with the Ten Percent Number Test, the "Ten Percent Tests"). When either Ten Percent Test has been met, CFNA shall not convey Eligible Alternative Receivables to the Transfer until the earlier of date on which the Ten Percent Test is no longer met or the Company receives written confirmation from each Rating Agency that such Rating Agency will not reduce or withdraw its then current rating on any outstanding Series as a result of such conveyance. When the Company has received written confirmation from each Rating Agency that such Rating Agency will not reduce or withdraw its then current rating on any outstanding series as a result of the continued inclusion of Eligible Alternative Accounts from a Designated Alternative Program, CFNA may continue to transfer Eligible Alternative Accounts from a designated Alternative Program to the Company, provided that (i) the number of Eligible Alternative Accounts relating to a Designated Alternative Program does not exceed 20% of the number of Eligible Accounts and Eligible Alternative Accounts, calculated as of December 31, of each calendar year (the "Twenty Percent Yearly Cap") and (ii) the number of Eligible Alternative Accounts relating to a Designated Alternative Program does not exceed 15% of the number of Eligible Accounts and Eligible Alternative Accounts, calculated as of March 31, June 30, September 30 and December 31 of each year for the preceding three Collection Periods (the "Fifteen Percent Quarterly Cap"). In addition, CFNA may continue to transfer Eligible Alternative Accounts from Non-Designated Alternative Programs, subject to the Ten Percent Maximum Number Test and the Ten Percent Aggregate Test.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Firestone Retail Credit Corp)
Addition of Accounts. (a) If, as of the end of any Collection Period beginning on or after the Certificate Trust Termination Date or as of any Distribution Date occurring on or after the Certificate Trust Termination Date, (i) Ifthe Transferor Amount (after giving effect to any amounts deposited in the Excess Funding Account) is less than the Minimum Transferor Amount or (ii) the Aggregate Principalis less than the Minimum Aggregate Principal Receivables Receivables, then the Transferor shall, before the close of business on the following Transfer Date (in the case of any deficiency as of the end of any Collection Period) or before the end of the Collection Period in which such deficiency occurs (in the case of any deficiency as of any Distribution Date), designate additional Eligible Accounts (the "Additional Accounts") to be included as Accounts in a sufficient 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 the deficiencies described in clauses (i) and (ii) above have been eliminated on or before such Transfer Date or before the end of such Collection Period, as applicable, through reductions in the Aggregate Invested Amount or through increases in the amount on deposit in the Excess 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, Funding (A) becomes obligated to designate time Additional Accounts pursuant to Subsection 2.08(a) be included as Accounts as of the Pooling and Servicing Agreement, or related Additional Account Closing Date.
(Bc) elects to designate The Transferor agrees that any designation of Additional Accounts pursuant to Subsection 2.08(bunder Section 2.6(a) and any designation of Additional Accounts made on or after the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on Certificate Trust Termination Date under Section 2.6(b) shall satisfy the following conditions:
(i) On or before the eighth fifth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Additional Account Closing Date, designate sufficient Eligible the Transferor shall have given the Owner Trustee, the Indenture Trustee, the Servicer, each Rating Agency and each other Person entitled thereto pursuant to the related Indenture Supplement written notice that the Additional Accounts to will be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One may, at its option and with specifying the consent approximate aggregate amount of Funding, designate newly originated Eligible Accounts the Receivables to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein and the related Purchased Assetstransferred;
(ii) as of each of On or before the Additional Cut-Off Date and the Addition Account Closing Date, no Insolvency Event with respect to Capital One shall have occurred nor shall the sale of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One Transferor shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to Owner Trustee (and the effect that (A) Capital One reasonably believes that such addition will not, based Owner Trustee shall have accepted on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as behalf of the date Issuer for the benefit of the addition;
(ivNoteholders and any Enhancement Provider) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, assignment substantially in the form of Exhibit A (the “Supplemental Conveyance”"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 Issuer and the Transferor shall have delivered to the Owner Trustee and the Indenture Trustee a computer file or microfiche list represented by the Transferor to contain a true and complete list of the Additional Accounts identified by account number and by Receivable balance in the Additional Accounts as of the Additional Account Cut-Off Date, which computer file or microfiche 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 Notes or any Enhancement Provider were used in selecting the Additional Accounts from the available Eligible Accounts in the Transferor's portfolio 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 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 Issuer 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 or after the Additional Account Cut-Off Date and all proceeds thereof (to the extent set forth in Section 9-315 of the UCC as in effect in the Relevant UCC State), and such Receivables and all proceeds thereof will be transferred to the Issuer 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), (y) the interest of the Transferor as holder of the Exchangeable Transferor Certificate or any other Class 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 or any other account or accounts maintained for the benefit of the Noteholders or any Enhancement Provider as provided in this Agreement and any Indenture 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 Issuer.
(v) If the Assignment constitutes the grant of a security interest in such property to the Issuer, the Transferor shall represent and warrant, as of the Additional Account Closing Date, that:
(A) the Assignment creates a valid and continuing security interest (as defined in the UCC of the Relevant UCC State) in such property in favor of the Issuer, 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 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 the Receivables and the proceeds thereof granted to the Issuer pursuant to the Assignment;
(E) other than the security interest granted to the Issuer 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 Issuer 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) Capital One The Transferor shall have delivered deliver to Funding the Indenture Trustee (with a copy to the Rating Agencies) an Officer’s 's Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, confirming the items set forth in clauses paragraphs (iii) through (v) aboveabove and paragraph (viii) below (and the Indenture 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);
(vii) The Transferor shall deliver to the Indenture 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 Exhibit F-2;
(viii) The Transferor shall record and file (and does hereby authorize the Issuer 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 (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 Issuer; and
(ix) The Rating Agencies shall have received from the Transferor five Business Days' notice, in the case of Additional Accounts being added pursuant to Section 2.6(a), and ten 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.
(d) The Transferor may, but shall not be obligated to, designate from time to time additional consumer revolving credit card accounts (the "Automatic Additional Accounts") to be included as Accounts by causing such Accounts to be 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 2003, 2004, 2009, 3101, 3102, 3103, 3104, 3312, 3313, 3314, 3315, 3316, 3317, 4951, 4952, 4954, 4955, 4957 or 4969 and (i) in the case of Automatic Additional Accounts designated before the Certificate Trust Termination Date, in the computer file or microfiche list delivered to the trustee of the FNANB Credit Card Master Trust by the Transferor with respect to such Accounts pursuant to Section 2.1(b) of the Pooling and Servicing Agreement, and (ii) in the case of Automatic Additional Accounts designated on or after the Certificate Trust Termination Date, in the computer file or microfiche list delivered to the Indenture Trustee by the Transferor with respect to such Accounts pursuant to Section 2.1(c). For purposes of this Section 2.6(d), Automatic Additional Accounts shall be deemed to include only Eligible Accounts designated on or after the Certificate Trust Termination Date (x) of a type included as Accounts on the Certificate Trust Termination 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 Indenture Supplement. If the number of Automatic Additional Accounts designated during any calendar quarter or any period of twelve consecutive months (including Automatic Additional Accounts designated pursuant to the Pooling and Servicing Agreement during either such period) exceeds the applicable Aggregate Automatic Addition Limit, then, upon discovery of such excess designation, (x) the Excess Automatic Additional Accounts shall be deemed to be Removed Accounts and (y) the Issuer 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 Issuer 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 Owner 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 the Issuer, the Noteholders or the Indenture Trustee on behalf of the Noteholders. The Transferor shall record and file (and does hereby authorize the Issuer 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 (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 such Receivables by the Transferor to the Issuer, and to deliver a file-stamped copy of such financing statements or other evidence of such filings to the Indenture Trustee.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Dc Funding International Inc)
Addition of Accounts. (a) (i) If, VCI may from time to time, Funding (A) becomes obligated time offer to voluntarily designate Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and Servicing Agreement, or (B) elects to designate Additional Accounts pursuant to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof on or before the eighth Business Day prior to the Addition Date therefor, and upon receipt of such notice Capital One shall on or before the Addition Date, designate sufficient additional Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) AdditionallyAccounts, Capital One may, at its option and with subject to the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
conditions specified in paragraph (b) On below. If any such offer is accepted by VDF, Receivables and the Addition Date with respect to any designation of Additional Accounts, related Collateral Security from such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, be sold to and under VDF effective on a date (the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such "Addition Date:
") specified in a written notice provided by VCI (ior the Servicer on its behalf) Capital One shall have delivered to Funding copies of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest in the Receivables arising therein VDF and the related Purchased Assets;
(ii) as of each of any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Addition Notice") on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date (the "Notice Date, no Insolvency Event with respect ").
(b) VCI shall be permitted to Capital One shall have occurred nor shall convey to VDF the sale Receivables and all Collateral Security related thereto in any Additional Accounts designated by VCI as such pursuant to Section 2.4(a) only upon satisfaction of each of the Receivables arising in following conditions on or prior to the related Addition Date; provided, however, conditions (i), (vi), (vii) and (viii) below shall be inapplicable to Accounts designated by VDF as Automatic Additional Accounts and the related Purchased Assets to Funding have been made in contemplation under Section 2.5(b) of the occurrence thereof;Trust Sale and Servicing Agreement:
(i) VCI shall provide VDF and any Enhancement Providers with a timely Addition Notice.
(ii) Such Additional Accounts shall all be Eligible Accounts.
(iii) Capital One VCI shall have delivered to Funding VDF a duly executed written assignment (including an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (Bacceptance by VDF) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One shall have indicated in its computer files that Receivables created in connection with such Additional Accounts and the related Purchased Assets have been sold to Funding and shall have delivered to Funding the Account Schedule with respect to such Additional Accounts (in the case of Additional Accounts designated pursuant to Subsection 2.02(a)(i));
(v) Capital One and Funding shall have entered into a duly executed, written assignment, substantially in the form of Exhibit A (the “Supplemental Conveyance”)"Assignment") and the computer file or microfiche or written list (which may be in electronic form) required to be delivered pursuant to Section 2.1.
(iv) VCI shall have delivered to VDF for deposit in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut-Off Date.
(v) (A) No selection procedures believed by VCI to be adverse to the interests of VDF or the Beneficiaries were used in selecting such Additional Accounts; and(B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, neither VCI, VDF nor the Servicer is insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency.
(vi) Capital One After giving effect to the addition of such Additional Accounts, (a) the result of (i) the Pool Balance minus the aggregate Invested Amount for all Series minus (ii) the outstanding principal balance of the VDF Subordinated Note is greater than or equal to (b) 4% of the Pool Balance.
(vii) The addition of the Receivables arising in such Additional Accounts shall not result in the occurrence of an Early Amortization Event.
(viii) VCI shall have delivered to Funding VDF and any Enhancement Providers a certificate of an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, Executive Officer confirming the items set forth in clauses paragraphs (iii) through (vvii) above. With respect to Automatic Additional Accounts, VCI shall deliver to VDF and any Enhancement Providers an Opinion of Counsel for the same time periods as the Transferor is required to deliver under Section 2.5(b) of the Trust Sale and Servicing Agreement.
(c) VCI hereby represents and warrants as of the applicable Addition Date as to the matters set forth in Section 2.4(b)(v) and (vii). The representations and warranties set forth in Section 2.4(b)(v) shall survive the sale, contribution and assignment of the respective Receivables and the related Collateral Security to VDF. Upon discovery by VCI or VDF of a breach of any of the foregoing representations and warranties, the party discovering the breach shall give prompt written notice to the other party and to any Enhancement Providers.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Volkswagen Dealer Finance LLC)
Addition of Accounts. (a) If, (i) Ifas of the end of any Collection Period, the Transferor Amount as a percentage of the Trust Principal Component is less than the Minimum Transferor Percentage specified in the Series Supplement for any Series, the Transferor shall designate additional eligible VISA accounts from time the Bank Portfolio ("Additional Accounts") to timebe included as Accounts in a sufficient amount such that the Transferor Amount after giving effect to such addition will be at least equal to the Minimum Transferor Amount, or (ii) as of the end of any Collection Period, the sum of the Trust Principal Component and the Excess Funding (A) becomes obligated to Amount is less than the Minimum Trust Principal Component, the Transferor shall designate Additional Accounts pursuant to Subsection 2.08(a) be included as Accounts in a sufficient amount such that the sum of the Pooling Trust Principal Component and Servicing Agreement, the Excess Funding Amount will be equal to or (B) elects to designate greater than the Minimum Trust Principal Component. Receivables from such Additional Accounts pursuant shall be transferred to Subsection 2.08(b) of the Pooling and Servicing Agreement, then in either case Funding may, at its option, give Capital One written notice thereof Trust on or before the eighth tenth Business Day following the end of such Collection Period.
(b) In addition to its obligation under subsection 2.6(a), the Transferor may, but shall not be obligated to, designate from time to time Additional Accounts of the Transferor to be included as Accounts to be included as property of the Trust, as of the applicable Addition Date.
(c) The Transferor agrees that any designation pursuant to subsection 2.6(a) or (b) shall satisfy the following conditions (to the extent provided below):
(i) on or before the fifth Business Day prior to the Addition Date thereforwith 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"), the Transferor shall give the Trustee, each Rating Agency and upon receipt the Servicer written notice that such Additional Accounts will be included, which notice shall specify the approximate aggregate amount of such notice Capital One shall the Receivables to be transferred;
(ii) on or before the Addition Date, designate sufficient Eligible Accounts to be included as Additional Accounts as requested by Funding.
(ii) Additionally, Capital One may, at its option and with the consent of Funding, designate newly originated Eligible Accounts to be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of Additional Accounts, such Additional Accounts shall become Accounts, and Funding shall purchase Capital One’s right, title and interest in, to and under the Receivables in such Additional Accounts and the related Purchased Assets as provided in Section 2.01, subject to the satisfaction of the following conditions on such Addition Date:
(i) Capital One Transferor shall have delivered to Funding copies the Trustee a written assignment (including an acceptance by the Trustee on behalf of UCC financing statements covering such Additional Accounts, if necessary to perfect Funding’s interest the Trust for the benefit of the Investor Certificateholders) in substantially the Receivables arising therein form of Exhibit B (the "Assignment") and the related Purchased Assets;
(ii) as of each of the Additional Cut-Off Date and the Addition Date, no Insolvency Event with respect to Capital One shall have occurred nor shall the sale of the Receivables arising in the Additional Accounts and the related Purchased Assets to Funding have been made in contemplation of the occurrence thereof;
(iii) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, to the effect that (A) Capital One reasonably believes that such addition will not, based on the facts known to such officer at the time of such certification, then cause a Pay Out Event under the Pooling and Servicing Agreement or any event to occur that, after the giving of notice or the lapse of time would constitute a Pay Out Event under the Pooling and Servicing Agreement and (B) in the case of Additional Accounts, no selection procedure was utilized by Capital One that would result in a selection of Additional Accounts (from the available Eligible Accounts owned by Capital One) that would be materially adverse to the interests of Funding as of the date of the addition;
(iv) Capital One Transferor shall have indicated in its computer files that the Receivables created in connection with such the Additional Accounts have been transferred to the Trust and, within five Business Days thereafter, or as otherwise agreed upon between the Transferor and the related Purchased Assets have been sold to Funding and Trustee, the Transferor shall have delivered to Funding the Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts and identifying each Account Schedule by account number and the aggregate amount of the Receivables in such Additional Accounts, as of the Addition Date, which computer file or microfiche 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) with respect to Additional Accounts, each Additional Account is, as of the Addition Date, an Eligible Account, and each Receivable in such Additional Account is, as of the Addition Date, an Eligible Receivable, (y) the selection of the Additional Accounts by the Transferor has been made in a manner which it reasonably believes will not materially adversely affect the interests of the Investor Certificateholders, and (z) as of the Addition Date, the Transferor is not insolvent;
(iv) the Transferor shall represent and warrant that, as of the Addition Date, the Assignment constitutes either (x) a valid transfer, assignment, set-over and conveyance to the Trust of all right, title and interest of the Transferor in and to the Receivables then existing and thereafter created in connection with the Additional Accounts, all proceeds (as defined in the UCC as in effect in the State of South Dakota) of such Receivables and Insurance Proceeds relating thereto, and such Receivables and all proceeds thereof and Insurance Proceeds relating thereto will be held by the Trust free and clear of any Lien of any Person claiming through or under the Transferor or any of its Affiliates, except for (i) Liens permitted under subsection 2.5(b), (ii) the interest of the Transferor as Holder of the Exchangeable Transferor Certificate and (iii) the Transferor's right, if any, to receive interest accruing on, and investment earnings, if any, in respect of any Account, Series Account, as provided in any related Supplement or (y) a grant of a security interest (as defined in the UCC as in effect in the State of South Dakota) in such property to the Trust, which is enforceable with respect to then existing Receivables of the Additional Accounts, the proceeds (as defined in the UCC as in effect in the State of South Dakota) thereof and Insurance Proceeds 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 (as defined in the UCC as in effect in the State of South Dakota) thereof and Insurance Proceeds relating thereto, upon such creation; and (z) if the Assignment constitutes the grant of a security interest to the Trust in such property, upon the filing of a financing statement 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 designated pursuant and the proceeds (as defined in the UCC as in effect in the State of South Dakota) thereof and Insurance Proceeds relating thereto, upon such creation, the Trust shall have a first priority perfected security interest in such property (subject to Subsection 2.02(a)(iSection 9-306 of the UCC as in effect in the State of South Dakota), except for Liens permitted under subsection 2.5(b);
(v) Capital One the Transferor shall deliver an Officer's Certificate substantially in the form of Schedule 2 to Exhibit B to the Trustee confirming the items set forth in paragraphs (ii), (iii) and Funding (iv) above and that the Transferor has filed (or will file within the time required by the applicable UCC) any financing statements required under the applicable UCC with respect to the Receivables in the Additional Accounts; and
(vi) the Transferor shall have entered into deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to the Trustee (with a duly executed, written assignment, copy to each Rating Agency) substantially in the form of Exhibit A (the “Supplemental Conveyance”); and
(vi) Capital One shall have delivered to Funding an Officer’s Certificate of Capital One, dated the Addition Date, confirming, to the extent applicable, the items set forth in clauses (i) through (v) above.E.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Bank Corporate Card Master Trust)
