Addition of Accounts. (a) If, during any period of 30 consecutive days ending after the SMT Termination Date either (i) the average Aggregate Net Principal Receivables is less than the Minimum Aggregate Principal Receivables averaged for such period or (ii) the average Seller Amount is less than the Minimum Seller Amount averaged for such period, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 Business 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 (x) the average Aggregate Net Principal Receivables would at least equal the Minimum Aggregate Principal Receivables averaged for such 30-day period and (ii) the average Seller Amount would at least equal the Minimum Seller Amount averaged for such 30-day period would have, if the Receivables from such Additional Accounts had been transferred to the Issuer during such 30-day period. Each of the averages referred to in the preceding sentence shall be calculating by taking the sum of the specified amount at the end of each Business Day falling in that period and dividing by the number of Business Days falling in that period. (b) In addition to its obligation under Section 2.6(a), Seller may, but -------------- shall not be obligated to, from time to time, designate Additional Accounts to be included as Accounts so long as after giving effect to such addition not more than 20% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquent. (c) Seller agrees that any Receivables from Additional Accounts shall be transferred by Seller to the Issuer under Section 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 Section 2.6(a) or (b), Seller shall give the Owner Trustee and the ------------- --- Servicer written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferred; (ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) shall satisfy the applicable condition in accordance with Section 2.6(f) 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 Net 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 Net Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15; (iii) On or prior to the Addition Date, in respect of Additional Accounts 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 the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) in substantially the form of Exhibit A (the "Assignment --------- ---------- 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 Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number and by Receivable balance as of the Addition Date in respect of Additional Accounts 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 (w) as of the Addition Date, Schedule 1 to the Assignment Agreement and the computer ---------- file or microfiche list delivered pursuant to Section 2.6(c) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date, (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 from the available Eligible Accounts, and (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 be deemed to represent and warrant that, as of the Addition Date, 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 Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer free and clear of any Lien of any Person, except for (i) Liens permitted under Section 2.5(b), (ii) the interest of Seller as -------------- holder of the Seller Certificate 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 this Agreement and any Indenture Supplement, or (y) a grant of a security interest in such property to the Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer 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 of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such 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 interest of Seller as holder of the Seller -------------- Certificate 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) above; and ---- ----- ---- --- (vii) Seller shall, on 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 C. --------- (d) Seller shall provide to 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 Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new Charge Account originated in the normal course of FCNB's business and assigned to an Included Cycle after the SMT Termination Date, and the Receivables in which are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to such billing cycle; 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 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 Seller shall have satisfied any ------------------ applicable condition to such addition), 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(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 Issuer, and (ii) shall deliver to the Owner 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 as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Owner Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at any time. (i) The Rating Agency Condition shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------ (ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to the addition of Additional ----------- Accounts.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Spiegel Master Trust)
Addition of Accounts. (a) If, during any period All Accounts which meet the definition of 30 consecutive days ending Automatic Additional Accounts shall be included as Accounts from and after the SMT Termination Date either date upon which such Automatic Additional Accounts are created and all Receivables in such Automatic Additional Accounts, whether such Receivables are then existing or thereafter created, shall be transferred automatically to the Trust upon purchase by the Transferor. 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 on which the Receivables in Automatic Additional Accounts are to be transferred to the Trust, such Accounts shall be included as Eligible Accounts if, in addition to satisfying the requirements of clauses (a) through (e) of the definition thereof, the following conditions are met:
(i) the average cumulative number of Accounts the Receivables of which have been added or are designated to be added to the Trust pursuant to subsection 2.6(a) since the later of the Initial Closing Date and the first day of the twelfth preceding Monthly Period which satisfy the conditions of clause (a) of the definition of "Automatic Additional Accounts" on such date shall not be in excess of 20% of the amount equal to (w) the number of the Active Accounts as of the later of the Initial Closing Date, the Latest Rating Agency Approval Date and the last day of the twelfth preceding Monthly Period PLUS (x) the number of Accounts the Receivables of which were designated to be added to the Trust pursuant to clause (b) of the definition of "Automatic Additional Accounts" on the first day of any such addition after the later of the Initial Closing Date, the Latest Rating Agency Approval Date and the last day of the twelfth preceding Monthly Period PLUS (y) the number of Supplemental Accounts, if any, the Receivables of which were designated to be added to the Trust after the later of the Initial Closing Date, the Latest Rating Agency Approval Date and the last day of the twelfth preceding Monthly Period MINUS (z) any Removed Accounts removed after the later of the Initial Closing Date, the Latest Rating Agency Approval Date and the last day of the twelfth preceding Monthly Period; and
(ii) the cumulative number of Accounts the Receivables of which have been added or are designated to be added to the Trust pursuant to subsection 2.6(a) since the later of the Initial Closing Date and the first day of the second preceding Monthly Period which satisfy the conditions of clause (a) of the definition of Automatic Additional Accounts on such date shall not be in excess of 15% of the amount equal to (w) the number of the Active Accounts as of the latest of the Initial Closing Date, the Latest Rating Agency Approval Date and the first day of the second preceding Monthly Period PLUS (x) the number of Accounts the Receivables of which were designated to be added to the Trust pursuant to clause (b) of the definition of "Automatic Additional Accounts" on the first day of any such addition and were added after the latest of the Initial Closing Date, the Latest Rating Agency Approval Date and the first day of the second preceding Monthly Period PLUS (y) the number of Supplemental Accounts, if any, designated during such three month period and thereafter added after the later of the Initial Closing Date and the first day of the second preceding Monthly Period MINUS (z) any Removed Account removed after the later of the Initial Closing Date and the first day of the second preceding Monthly Period. If any Automatic Additional Accounts would have been included as an Account but for the provisions of Section 2.6(b)(i) or (ii), they shall be included as Accounts on the first date thereafter permitted by Section 2.6(b)(i) and (ii).
(c) The Transferor may elect at any time to terminate or suspend the inclusion in Accounts of Automatic Additional Accounts by delivering to the Trustee, the Servicer and the Rating Agency 15 days prior written notice of such election. If the Transferor has elected to terminate or suspend the inclusion of Automatic Additional Accounts and (i) on any Record Date, the Transferor Interest for the related Monthly Period is less than the Minimum Transferor Interest, the Transferor shall designate additional credit card accounts or any successor credit card account designation accounts ("SUPPLEMENTAL ACCOUNTS") to be included as Accounts in a sufficient amount such that the Transferor Interest as a percentage of the Aggregate Net Principal Receivables for such Monthly Period after giving effect to such addition is at least equal to the Minimum Transferor Interest, (ii) on any Record Date, the Retained Interest for the related Monthly Period is less than the Minimum Retained Interest, the Transferor shall designate Supplemental Accounts to be included as Accounts in a sufficient amount such that the Retained 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 Retained Interest, or (iii) on any Record Date, the aggregate amount of Principal Receivables is less than the Minimum Aggregate Principal Receivables averaged for such period or (ii) Receivables, the average Seller Amount is less than the Minimum Seller Amount averaged for such period, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 Business Days thereafter) Seller Transferor shall designate additional Eligible Supplemental Accounts ("Additional ---------- Accounts") to be included as Accounts and in a sufficient amount such that the Aggregate Principal Receivables will be equal to or greater than the Minimum Aggregate Principal Receivables. Receivables from such Supplemental Accounts shall transfer be transferred to the Trust on or before the tenth Business Day following such Record Date. On any day on which the Receivables in Supplemental Accounts are to be transferred to the Trust, the Receivables in such -------- Additional Accounts to shall be included as Eligible Receivables if they satisfy the Issuer, in a sufficient amount so that (x) the average Aggregate Net Principal Receivables would at least equal the Minimum Aggregate Principal Receivables averaged for such 30-day period and (ii) the average Seller Amount would at least equal the Minimum Seller Amount averaged for such 30-day period would have, if the Receivables from such Additional Accounts had been transferred to the Issuer during such 30-day period. Each requirements of the averages referred to in the preceding sentence shall be calculating by taking the sum definition of the specified amount at the end of each Business Day falling in that period and dividing by the number of Business Days falling in that period"Eligible Receivables".
(bd) In addition to its obligation under Section 2.6(asubsection 2.6(c), Seller if and for so long as the Transferor has elected to terminate or suspend the inclusion of Automatic Additional Accounts, the Transferor may, by giving twenty Business Days' notice to the Trustee and each Rating Agency, but -------------- shall not be obligated to, designate from time to time, designate Additional time Supplemental Accounts of the Transferor to be included as Accounts so long as after giving effect to such addition not more than 20% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquentAccounts.
(ce) Seller The Transferor agrees that any such transfer of Receivables from Additional Accounts shall be transferred by Seller to the Issuer Supplemental Accounts, under Section 2.6(a), (bsubsection 2.6(c) or (e) upon and -------------- --- --- subject d), shall satisfy the following conditions (to the following conditions:extent provided below):
(i) On on or before the fifth Business Day (the "Notice Date") prior to ----------- the Addition Date in with respect of Additional Accounts added to additions pursuant to Section 2.6(asubsection 2.6(c) and on or before the twentieth Business Day prior to the Addition Date with respect to additions pursuant to subsection 2.6(d) (bas applicable, the "NOTICE DATE"), Seller the Transferor shall give the Owner Trustee Trustee, each Rating Agency and the ------------- --- Servicer written notice that such Additional Supplemental Accounts will be included and specifying included, which notice shall specify the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) shall satisfy on or before the applicable condition in accordance with Section 2.6(f) 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 Net 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 Net Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15;
(iii) On or prior to the Addition Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller the Transferor shall have ------------- --- delivered to the Owner Trustee a written Assignment Agreement assignment (including an acceptance by the Owner Trustee on behalf of the Issuer Trust for the benefit of the NoteholdersInvestor Certificateholders) in substantially the form of Exhibit A B (the "Assignment --------- ---------- AgreementASSIGNMENT") and the Transferor shall have indicated in its books and records, including --------- the computer files of the Receivables, that the Receivables created in connection with the Additional Supplemental Accounts have been transferred by Seller to the Issuer; and Trust and, within five Business Days thereafter, the Transferor shall have delivered to the Owner Trustee or the bailee of the Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts Supplemental Accounts, identified by account number and by Receivable balance the Outstanding Balance of the Receivables in such Supplemental Accounts, as of the Addition Date in respect of Additional Accounts added pursuant to Section ------- 2.6(a) or (b)Cut Off Date, 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 Schedule 1 to this Agreement;
(iviii) Seller the Transferor shall be deemed to represent and warrant that (w) as of the Addition Date, Schedule 1 to the Assignment Agreement and the computer ---------- file or microfiche list delivered pursuant to Section 2.6(c) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date, (x) each Additional Account is, as of the Addition Date, an Eligible Account, (y) no selection procedures reasonably believed by Seller to be procedure which is materially adverse to the interests of the Noteholders were Investor Certificateholders was utilized in selecting the Additional Supplemental Accounts from the available Eligible Accounts, and (zy) as of the applicable Addition Date, Seller the Transferor is not insolvent and will not be rendered insolvent by adding any such Additional Account to any Cycleinsolvent;
(viv) Seller the Transferor shall be deemed to represent and warrant that, as of the Addition Date, the Assignment Agreement constitutes either (x) a valid transfer and assignment to the Issuer Trust of all right, title and interest of Seller in, the Transferor in and to and under (A) the Receivables Receiv ables then existing and thereafter arising created in respect of the Additional Supplemental Accounts, all monies due or to become due with respect thereto (including all Finance Charge Receivables), the Related Contracts and all proceeds (as defined in the UCC as in effect in the Relevant UCC State) of such Receivables and Insurance Proceeds relating thereto(B) Recoveries, and such property Receivables and all proceeds thereof will be owned held by the Issuer Trust free and clear of any Lien of any PersonPerson claiming through or under the Transferor or any of its Affiliates, except for (i) Liens permitted under Section 2.5(b)Permitted Liens, (ii) the interest of Seller the Transferor as -------------- holder Holder of the Seller Exchangeable Transferor Certificate and any other Class or Series of Certificates and (iii) Sellerthe Transferor's right to receive interest accruing on, and investment earnings in respect of, the Collection Account and any Interest Funding Account and any Principal Account, or any Series Account as provided in this Agreement and any Indenture Supplement, 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 IssuerTrust, which is enforceable with respect to then existing Receivables of the Additional Supplemental Accounts, all monies due or to become due with respect thereto, the proceeds (as defined in the UCC as in effect in the Relevant UCC State) thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer conveyance of such Receivables to the IssuerTrust, and which will be enforceable with respect to the Receivables thereafter transferred created in respect of Additional Accounts, Supplemental Accounts conveyed on such Addition Date and the proceeds (as defined in the UCC as in effect in the Relevant UCC State) thereof and Insurance Proceeds relating thereto upon such transfercreation; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer Trust 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 the Receivables of Additional thereafter created in such Supplemental Accounts thereafter transferred and the proceeds (as defined in the UCC as in effect in the Relevant UCC State) thereof, and Insurance Proceeds relating to such Receivables, upon such transfercreation, the Issuer Trust shall have a first priority perfected security interest in such property, except for Liens permitted under Section 2.5(b), the interest of Seller as holder of the Seller -------------- Certificate 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 SupplementPermitted Liens;
(viv) Seller shall, on the Addition Date for Additional Accounts added pursuant Transferor shall deliver to Section 2.6(a) or (b), deliver a certificate the Trustee an Officer's Certificate substantially in the form of a Vice -------------- --- President or more senior officer Schedule 2 to Exhibit B confirming the items set forth in paragraphs paragraph (ii), (iii), (iv) and (v) above; and ---- ----- ---- ---;
(viivi) Seller shall, on the Addition Date for Additional Accounts added pursuant Transferor shall deliver to Section 2.6(a) or (b), deliver the Trustee an Opinion of Counsel with -------------- --- respect to the Receivables in the Additional Supplemental Accounts (with a copy to the Owner Trustee Rating Agencies) substantially in the form of Exhibit C. ---------F; and
(dvii) Seller the Transferor shall provide to each Rating Agency and to each Enhancement Provider prior have received written notice each time Additional from the Rating Agencies that the inclusion of such accounts as Supplemental Accounts are added pursuant to Section 2.6(asubsection 2.6(c) or (bd). -------------- ---, as the case may be, will not result in the reduction or with drawal of its then existing rating of any Series of Investor Certificates then issued and outstanding and shall have delivered such notice to the Trustee.
(ef) In addition to The Transferor shall also comply with the occasional designation requirements of Additional Accounts as required or permitted pursuant to Sections 2.6(aclauses (v) and (b), Seller agrees that --------------- --- each new Charge Account originated in the normal course vi) of FCNB's business and assigned to an Included Cycle after the SMT Termination Date, and the Receivables in which are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuersubsection 2.6(e) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to such billing cycle; 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 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 Seller shall have satisfied any ------------------ applicable condition to such addition), 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(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 each addition of Automatic Additional Accounts have been transferred pursuant to the Issuer, and clause (iib) shall deliver to the Owner 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 as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Owner Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at any timedefinition thereof.
(i) The Rating Agency Condition shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to the addition of Additional ----------- Accounts.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Apparel Retailers Inc)
Addition of Accounts. (a) If, during as of the close of business on the last day of any period of 30 consecutive days ending after the SMT Termination Date either Collection Period, (i) the average Aggregate Net Principal Receivables Pool Balance on such day is less than the Minimum Aggregate Principal Receivables averaged for Required Pool Balance as of the following Distribution Date (after giving effect to the allocations, distributions, withdrawals and deposits to be made on such period Distribution Date), or (ii) the average Seller Amount aggregate interest in the Pool Balance represented by the BCRC Certificate and any Variable Funding Certificate held by BCRC is less than 2% of the Minimum Seller Amount averaged for aggregate amount of Receivables included in the Pool on such periodlast day, either Seller then, unless a Liquidation Event has occurred, on or prior to the Servicer tenth Business Day following the end of such Collection Period (whichever the "Addition Date"), the Depositor shall first become aware of same) promptly be required to purchase from BCI under the Receivables Purchase Agreement (but BCI shall give the Owner Trustee written notice thereofhave no obligation to sell to BCRC), and shall designate (pursuant to an Addition Notice delivered pursuant to Section 2.05(c) hereof) and transfer to the Trust, the Receivables (and any related Collateral Security) of additional Eligible Accounts of the Depositor to be included as soon Accounts in a sufficient amount such that, after giving effect to such addition: (x) the Pool Balance as practicable of the close of business on the Addition Date is at least equal to the Required Pool Balance and (but y) the aggregate amount of Receivables included in no event later than 10 Business Days thereafterthe Pool represented by the BCRC Certificate and any Variable Funding Certificate held by BCRC, is equal to at least 2% of the aggregate amount of Receivables included in the Pool and (z) Seller the Pool shall consist of the same type of Receivables as shall have been included in the Pool prior to such addition (i.e., Domestic Inventory Receivables, Other Account Receivables or both, as the case may be); provided, however, that so long as the Trustee shall have received (whether in connection with the addition of Accounts at such time or in connection with a previous addition of Accounts to the Trust) a letter from each Rating Agency confirming that the inclusion of Accounts relating to Other Account Receivables will not result in the reduction or withdrawal of the rating of any Series or Class of Certificates then outstanding, then, at the option of the Depositor and BCI, Additional Accounts containing Other Account Receivables may be added in satisfaction of such requirement even if the only Accounts previously included in the Trust are Accounts containing Domestic Inventory Receivables; and provided, further, that for purposes of clause (ii) and sub-clause (y) of this subsection (a), the Variable Funding Certificate shall be deemed to be "held" by BCRC even though the registered Holder thereof is BCI, as pledgee, so long as BCI has not exercised its remedies in respect thereof. The Depositor shall satisfy the conditions specified in subsection (d) of this Section 2.05 in designating such Additional 'SS' 2.05 Accounts and conveying the related Receivables to the Trust. The failure of the Depositor to transfer Receivables to the Trust as provided in this subsection (a) solely as a result of the unavailability of a sufficient amount of Eligible Receivables or subsequent to a Liquidation Event 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) hereof.
(b) The Depositor may from time to time, at its sole discretion, subject to the conditions specified in subsection (d) below, voluntarily designate additional Eligible Accounts ("Additional ---------- Accounts") to be included as Accounts and shall transfer to the Trust the Receivables in such -------- Additional Accounts to (and the Issuer, in a sufficient amount so that (xrelated Collateral Security) the average Aggregate Net Principal Receivables would at least equal the Minimum Aggregate Principal Receivables averaged for such 30-day period and (ii) the average Seller Amount would at least equal the Minimum Seller Amount averaged for such 30-day period would have, if the Receivables from of such Additional Accounts had been transferred to the Issuer during such 30-day period. Each of the averages referred to in the preceding sentence shall be calculating by taking the sum of the specified amount at the end of each Business Day falling in that period and dividing by the number of Business Days falling in that period.
(b) In addition to its obligation under Section 2.6(a), Seller may, but -------------- shall not be obligated to, from time to time, designate Additional Accounts to be included as Accounts so long as after giving effect to such addition not more than 20% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquentAccounts.
(c) Seller agrees that any Receivables and Collateral Security from Additional Accounts shall be transferred by Seller conveyed to the Issuer under Section 2.6(a), Trust pursuant to subsection (b) or (e) upon and -------------- --- --- subject above shall be sold to the following conditions:
Trust effective on a date (ithe "Addition Date") On specified in an Addition Notice on or before the fifth tenth Business Day but not more than the 30th day prior to the related Addition Date (the "Notice Date") prior to ----------- ); provided, however, that unless a Rating Agency Condition shall otherwise have been satisfied, the first Addition Date following the Cut-Off Date shall occur no earlier than April 1, 1994 and any Addition Date thereafter shall occur not less than ninety (90) days following the immediately preceding Addition Date.
(d) The Depositor shall be permitted to convey to the Trust the Receivables and all Collateral Security related thereto in respect of any Additional Accounts added designated by the Depositor as such pursuant to Section 2.6(a2.05(a) or (b), Seller shall give the Owner Trustee and the ------------- --- Servicer written notice that such Additional Accounts will be included and specifying the approximate aggregate amount ) hereof only upon satisfaction of each of the Receivables following conditions on or prior to be transferredthe related Addition Date:
(i) the Depositor shall have provided the Trustee, any Agent, the Rating Agencies and any Enhancement Providers with an Addition Notice;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) shall satisfy the applicable condition in accordance with Section 2.6(f) if such designation of Additional Accounts -------------- is made shall all be Eligible Accounts and, with respect to Additional Accounts designated pursuant to Section 2.6(bsubsection (b) or (e) and if above, the addition of such -------------- Additional Accounts
(1) would cause the quotient (the "Annual Quotient") of (x) the --------------- sum of the Annual Net 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 Net Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15Rating Agency Condition shall have been satisfied;
(iii) On or prior to the Addition Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller Depositor shall have ------------- --- delivered to the Owner Trustee a duly executed written Assignment Agreement (including an acceptance by the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) assignment in substantially the form of Exhibit A B hereto (the "Assignment --------- ---------- AgreementAssignment") 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 Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche or written list containing a true and complete list of all Additional Accounts identified by account number and by Receivable balance as of the Addition Date in respect of Additional Accounts added required to be delivered 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 Agreement2.01 hereof;
(iv) Seller shall the Depositor shall, to the extent required by Section 4.03 hereof, have deposited in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut-Off Date; 'SS' 2.05 (v)(A) no selection procedures reasonably believed by the Depositor to be deemed adverse to represent and warrant that (w) as the interests of the Addition Date, Schedule 1 to Beneficiaries or any Enhancement Provider were used in selecting such Additional Accounts; (B) the Assignment Agreement and the computer ---------- file or microfiche list of Additional Accounts delivered pursuant to Section 2.6(cclause (iii) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder above is true and correct in all material respects as of the Addition Date, Additional Cut-Off Date and (x3) each Additional Account is, as of each of the Notice Date and the Addition Date, an Eligible Account, (y) no selection procedures reasonably believed by Seller to be materially adverse to neither BCI nor the interests Depositor were insolvent nor will any of the Noteholders were utilized in selecting the Additional Accounts from the available Eligible Accounts, and (z) as of the Addition Date, Seller is not insolvent and will not be rendered them have been made insolvent by adding such transfer nor are any such Additional Account to any Cycle;
(v) Seller shall be deemed to represent and warrant that, as of the Addition Date, 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 Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer free and clear them aware of any Lien of any Person, except for (i) Liens permitted under Section 2.5(b), (ii) the interest of Seller as -------------- holder of the Seller Certificate 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 this Agreement and any Indenture Supplement, or (y) a grant of a security interest in such property to the Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer 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 of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such 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 interest of Seller as holder of the Seller -------------- Certificate 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 Supplementpending insolvency;
(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) above; and ---- ----- ---- ---
(vii) Seller shall, on 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 C. ---------
(d) Seller shall provide to 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 Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new Charge Account originated in the normal course of FCNB's business and assigned to an Included Cycle after the SMT Termination Date, and the Receivables in which are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to such billing cycle; 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 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 Seller shall have satisfied any ------------------ applicable condition to such addition), 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(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 Issuer, and (ii) shall deliver to the Owner 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 as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Owner Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at any time.
(i) The Rating Agency Condition shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to the addition of Additional ----------- Accounts.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bombardier Receivables Master Trust I)
Addition of Accounts. (a) If, during on any period of 30 consecutive days ending day after the SMT FCMT Termination Date either (i) Date, the average Aggregate Net Principal Receivables Balance is less than the Minimum Aggregate Principal Receivables averaged for such period or (ii) the average Seller Amount is less than the Minimum Seller Amount averaged for such periodBalance, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 Business Days 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 (x) the average Aggregate Net Principal Receivables would at least equal the Minimum Aggregate Principal Receivables averaged for Balance on such 30-day period and (ii) the average Seller Amount would at least equal the Minimum Seller Amount averaged for such 30-day period would have, if the Receivables from such Additional Accounts had been transferred to the Issuer during on or prior to such 30-day period. Each of day, at least equaled the averages referred to in the preceding sentence shall be calculating by taking the sum of the specified amount at the end of each Business Day falling in that period and dividing by the number of Business Days falling in that periodMinimum 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, designate Additional Accounts to be included as Accounts Accounts, so long as after giving effect to such addition not more than 20% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquentdelinquent (and for 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 (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 Section 2.6(a) or (b), Seller shall give the Owner Trustee and the ------------- Servicer -------------- --- 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 (B) shall satisfy the applicable condition in accordance with Section 2.6(f) 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 Net Account Additions after giving effect to such addition addition, plus the related Base Amount 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 Net 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 Additional Accounts;
(iii) On or prior to the Addition Date, in respect of Additional Accounts 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 the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) in substantially the form of Exhibit A (the "Assignment --------- ---------- 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 Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number number, and by Receivable balance the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts 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 (w) as of the Addition Date, Schedule 1 to the Assignment Agreement and the computer ---------- file or microfiche list delivered pursuant to Section 2.6(c) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date, (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 from the available Eligible Accounts, and (z) as of the Addition Date, Seller is not insolvent and will not be rendered insolvent by adding any such Additional Account to any CycleAccount;
(v) Seller shall be deemed to represent and warrant that, as of the Addition Date, 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 Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer free and clear of any Lien of any Person, except for (i) Liens permitted under Section 2.5(b), (ii) the interest of Seller as -------------- holder of the Seller Certificate Interest and (iii) Seller's right to receive interest accruing on, and investment earnings in respect of, the Collection Account or any Series Account Account, as provided in this Agreement and any Indenture Supplement, or (y) a grant of a security interest in such property to the Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer 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 of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such 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 interest of Seller as holder of -------------- the Seller -------------- Certificate 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) above; and ---- ----- ---- ---
(vii) Seller shall, on 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 C. ---------F-2, 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 Section 2.6(a) or (b). -------------- ---
(e) In addition to the occasional designation of Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new Charge Account MasterCard or VISA account originated in the normal course of FCNBSeller's business and assigned to an Included Cycle after the SMT FCMT Termination Date, and the Receivables in which are purchased by Seller pursuant to the Receivables Purchase Agreement, Date shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the tenth Business Day following the end of the Monthly Period in date on which such account is assigned to such billing cyclecreated; 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 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 Seller there shall have been delivered to the Indenture Trustee a letter from each Rating Agency confirming the Rating Agency Condition has been satisfied any ------------------ applicable condition with respect to the addition of such additionAdditional 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(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, receivables that the Receivables created in connection with such included Accounts have been transferred to the Issuer, and (ii) shall deliver to the Owner 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 as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Owner Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at -------------- any time.
(i) The Rating Agency Condition shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to the addition of Additional ----------- Accounts.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (First Consumers Master Trust)
Addition of Accounts. (a) If, during as of the close of -------------------- business on the last day of any period of 30 consecutive days ending after the SMT Termination Date either Collection Period, (i) the average Aggregate Net Principal Receivables Pool Balance on such day is less than the Minimum Aggregate Principal Receivables averaged for Required Pool Balance as of the following Distribution Date (after giving effect to the allocations, distributions, withdrawals and deposits to be made on such period Distribution Date), or (ii) the average Seller Amount aggregate interest in the Pool Balance represented by the BCRC Certificate and any Variable Funding Certificate held by BCRC is less than the Minimum Seller Amount averaged for such period, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 Business 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 (x) the average Aggregate Net Principal Receivables would at least equal the Minimum Aggregate Principal Receivables averaged for such 30-day period and (ii) the average Seller Amount would at least equal the Minimum Seller Amount averaged for such 30-day period would have, if the Receivables from such Additional Accounts had been transferred to the Issuer during such 30-day period. Each of the averages referred to in the preceding sentence shall be calculating by taking the sum of the specified amount at the end of each Business Day falling in that period and dividing by the number of Business Days falling in that period.
(b) In addition to its obligation under Section 2.6(a), Seller may, but -------------- shall not be obligated to, from time to time, designate Additional Accounts to be included as Accounts so long as after giving effect to such addition not more than 202% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquent.
(c) Seller agrees that any Receivables from Additional Accounts shall be transferred by Seller to the Issuer under Section 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 Section 2.6(a) or (b), Seller shall give the Owner Trustee and the ------------- --- Servicer written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of Receivables included in the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible AccountsPool on such last day, and (B) shall satisfy the applicable condition in accordance with Section 2.6(f) 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 Net Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.20then, or
(2) would cause the quotient (the "Quarterly Quotient") of (x) ------------------ the sum of the Quarterly Net Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15;
(iii) On unless a Liquidation Event has occurred, on or prior to the Addition Date, in respect of Additional Accounts 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 the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) in substantially the form of Exhibit A (the "Assignment --------- ---------- 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 Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number and by Receivable balance as of the Addition Date in respect of Additional Accounts 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 (w) as of the Addition Date, Schedule 1 to the Assignment Agreement and the computer ---------- file or microfiche list delivered pursuant to Section 2.6(c) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date, (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 from the available Eligible Accounts, and (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 be deemed to represent and warrant that, as of the Addition Date, 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 Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer free and clear of any Lien of any Person, except for (i) Liens permitted under Section 2.5(b), (ii) the interest of Seller as -------------- holder of the Seller Certificate 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 this Agreement and any Indenture Supplement, or (y) a grant of a security interest in such property to the Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer 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 of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such 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 interest of Seller as holder of the Seller -------------- Certificate 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) above; and ---- ----- ---- ---
(vii) Seller shall, on 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 C. ---------
(d) Seller shall provide to 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 Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new Charge Account originated in the normal course of FCNB's business and assigned to an Included Cycle after the SMT Termination Date, and the Receivables in which are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the tenth Business Day following the end of such Collection Period (the Monthly Period in which such account is assigned "Addition Date"), the Depositor shall be required to such billing cycle; 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 Issuer of ------------- purchase from BCI under the Receivables in such AccountPurchase Agreement (but BCI shall have no obligation to sell to BCRC), if such Accounts had been designated by Seller and shall designate (pursuant to an Addition Notice delivered pursuant to Section 2.6(b)2.05(c) hereof) and transfer to the Trust, would have caused the limitations set forth in -------------- Section 2.6(c)(iiReceivables (and any related Collateral Security) to be exceeded (unless Seller shall have satisfied any ------------------ applicable condition to such addition), or (iii) Seller otherwise designates such account as an account which is not of additional Eligible Accounts of the Depositor to be included as an Account pursuant Accounts in a sufficient amount such that, after giving effect to this Section 2.6(e). On or before such addition: (x) the fifth Business Day Pool Balance as of each month next ----------- succeeding a calendar month in which Accounts were included pursuant the close of business on the Addition Date is at least equal to the preceding sentenceRequired Pool Balance and (y) the aggregate amount of Receivables included in the Pool represented by the BCRC Certificate and any Variable Funding Certificate held by BCRC, Seller shall (i) indicate in its books and records, including the computer files is equal to at least 2% of the receivablesaggregate amount of Receivables included in the Pool and (z) the Pool shall consist of the same type of Receivables as shall have been included in the Pool prior to such addition (i.e., Domestic Inventory Receivables, Other Account Receivables or both, as the case may be); provided, -------- however, that so long as the Receivables created Trustee shall have received (whether in connection ------- with the addition of Accounts at such time or in connection with such included a previous addition of Accounts have been transferred to the Issuer, and (iiTrust) shall deliver to the Owner 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 as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Owner Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend letter from each Rating Agency confirming that the inclusion of Accounts relating to Other Account Receivables will not result in the reduction or withdrawal of the rating of any Series or Class of Certificates then outstanding, then, at the option of the Depositor and BCI, Additional Accounts containing Other Account Receivables may be added pursuant to Section 2.6(e) at any time.
(i) The Rating Agency Condition shall be applicable in satisfaction of such requirement even if the only Accounts previously included in the Trust are Accounts containing Domestic Inventory Receivables; and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Conditionprovided, then this further, that for purposes of clause (ii) shall not be applicable to and sub-clause (y) of this -------- ------- subsection (a), the addition of Additional ----------- Accounts.Variable Funding (S)2.05
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bombardier Receivables Master Trust I)
Addition of Accounts. (a) If, If during any period of 30 thirty consecutive days ending after days, the SMT Termination Date either (i) the average Aggregate Net Principal Receivables Transferor Interest averaged over that period is less than the Minimum Aggregate Principal Receivables averaged Transferor Interest for such period or (ii) the average Seller Amount is less than the Minimum Seller Amount averaged for such that period, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 Business Days thereafter) Seller Transferor shall designate additional Eligible Accounts ("Additional ---------- Accounts") from the Bank Portfolio to be included as Accounts and shall transfer the Receivables in such -------- Additional Accounts to the Issuer, in a sufficient amount so such that (x) the average Aggregate Net Transferor Interest for such thirty-day period, computed by assuming that the amount of the Principal Receivables would 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 averaged for 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 30Additional Accounts shall be transferred to the Trust on or before the tenth Business Day following such thirty-day period and (ii) or Record Date, as the average Seller Amount would at least equal the Minimum Seller Amount averaged for such 30-day period would havecase may be. In lieu of, if the Receivables from such or in addition to, designating Additional Accounts had been transferred as required above, Transferor may (subject to compliance with applicable securities laws), on or before such tenth business day, convey to the Issuer during such 30-day periodTrust 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"). Each Any addition of Participations to the averages referred Trust (whether pursuant to in the preceding sentence this subsection (a) or subsection (b) below) shall be calculating effected by taking an amendment hereto, dated the sum of the specified amount at the end of each Business Day falling in that period and dividing by the number of Business Days falling in that periodapplicable Addition Date, pursuant to subsection 13.1(a).
(b) In addition to its obligation under Section subsection 2.6(a), Seller Transferor may, but -------------- shall not be obligated to, from time to time, time designate Additional Accounts or Participations to be included as Accounts so long Trust Assets, in either case as after giving effect to such addition not more than 20% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquentapplicable Addition Date.
(c) Seller Additional Accounts that Transferor is required to designate pursuant to subsection 2.6(a), or elects to designate pursuant to subsection 2.6(b), shall be treated as Automatic Additional Accounts (with the result that the Rating Agency Condition will not have to be satisfied with respect to such designation), so long as (x) such Additional Accounts are MasterCard, VISA or Private Label accounts originated by Transferor in the ordinary course of business and (y) the number of such new Additional Accounts would not exceed an amount equal to the lesser of: (i) the excess (if any) of (A) [15]% of the aggregate number of Accounts determined as of the first day of the third Monthly Period prior to the applicable Addition Date (or, if later, as of the Initial Closing Date) over (B) the aggregate number of Automatic Additional Accounts the Addition Date for which has occurred since the first day of such third prior Monthly Period (or, if later, since the Initial Closing Date); and (ii) the excess (if any) of (A) [20]% of the aggregate number of Accounts determined as of the first day of the calendar year in which the Addition Date occurs (or, if later, as of the Initial Closing Date) over (B) the aggregate number of Automatic Additional Accounts the Addition Date for which has occurred since the first day of such calendar year (or, if later, since the Initial Closing Date).
(d) Transferor agrees that any transfer of Receivables from Additional Accounts shall be transferred by Seller to the Issuer or Participations under Section subsection 2.6(a), ) or (b) or shall occur only upon satisfaction of the following conditions (e) upon and -------------- --- --- subject to the following conditions:
extent applicable): (i) On on or before the fifth Business Day prior to the Addition Date with respect to additions pursuant to subsection 2.6(a) and on or before the tenth Business Day prior to the Addition Date with respect to additions pursuant to subsection 2.6(b) (the "Notice Date") prior to ----------- the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller Transferor shall give the Owner Trustee Trustee, each Rating Agency and the ------------- --- Servicer written notice that such Additional Accounts or Participations will be included and specifying included, which notice shall specify the approximate aggregate amount of the Receivables or Participations to be transferred;
; (ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) shall satisfy the applicable condition in accordance with Section 2.6(f) if such designation of Additional Accounts -------------- is made pursuant to Section 2.6(b) on 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 Net 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 Net Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15;
(iii) On or prior to before the Addition Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller Transferor shall have ------------- --- delivered to the Owner Trustee a written Assignment Agreement assignment (including an acceptance by the Owner Trustee on behalf of the Issuer Trust for the benefit of the NoteholdersInvestor Holders) in substantially the form of Exhibit A B (the "Assignment --------- ---------- AgreementAssignment") and Transferor 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 Issuer; and Trust and, within ten Business Days thereafter, Transferor shall have delivered to Trustee an Account Schedule relating to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number and by Receivable balance as of the Addition Date in respect of Additional Accounts added pursuant to Section ------- 2.6(a) or (b)Accounts, which computer file or microfiche Account Schedule list shall be marked as ------ --- Schedule 1 to the Assignment Agreementdeemed automatically, delivered to the Owner Trustee as ---------- confidential and proprietary, shall be as of the date of such Assignment Agreement and Assignment, incorporated into and made a part of such Assignment Agreement and this Agreement;
; (iviii) Seller Transferor shall be deemed to represent and warrant that (wA) 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 Date, Schedule 1 to the Assignment Agreement and the computer ---------- file or microfiche list delivered pursuant to Section 2.6(c) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Cut-Off Date, (x) each Additional Account is, as of the Addition Date, an Eligible Account, (yB) no selection procedures reasonably believed by Seller Transferor to be materially adverse to the interests of the Noteholders Investor Holders were utilized in selecting the Additional Accounts from the available Eligible AccountsAccounts from the Bank Portfolio, and (zC) as of the Addition Date, Seller Transferor is not insolvent and will not be rendered insolvent by adding any (D) in the reasonable belief of Transferor, the transfer of the Receivables from such Additional Account Accounts shall not cause a Pay Out Event to any Cycle;
occur; (viv) Seller Transferor shall be deemed to represent and warrant that, that (A) as of the Addition Date, the Assignment Agreement constitutes either (x) a valid transfer and assignment to Trustee, on behalf of the Issuer Trust, of all right, title and interest of Seller in, Transferor in and to and under the Receivables then existing and thereafter arising created in respect of the Additional Accounts, and all monies due or to become due with respect thereto to such Receivables (including all Finance Charge ReceivablesReceivables and Recoveries), and Insurance Proceeds relating to such Receivables and all proceeds of such Receivables and Insurance Proceeds relating theretoall of the foregoing, and such property all of which will be owned held by Trustee on behalf of the Issuer Trust, free and clear of any Lien of any PersonPerson claiming through or under Transferor or any of its Affiliates, except for (i) Liens permitted under Section subsection 2.5(b), (ii) the interest of Seller Transferor as -------------- holder Holder of the Seller Transferor Certificate and (iii) SellerTransferor's right to receive interest accruing on, and investment earnings in respect of, the Collection Finance Charge Account, the Excess Funding Account or and any Series Account Account, as provided in this Agreement and any Indenture related Supplement, or (y) a grant of a security interest in such property to Trustee, for the Issuerbenefit of the Investor Holders, which is enforceable with respect to then existing Receivables of in the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and any Insurance Proceeds and Recoveries relating thereto upon the transfer conveyance of such Receivables to the IssuerTrust, and which will be enforceable with respect to the Receivables thereafter transferred created in respect of Additional AccountsAccounts conveyed on such Addition Date, the proceeds thereof and any Insurance Proceeds and Recoveries relating thereto upon such transfercreation; and (zB) if the Assignment Agreement constitutes the grant of a security interest to the Issuer Trustee in such property, upon the filing of a financing statement statements as described in Section 2.1 with respect to such Additional Accounts and in ----------- the case of the Receivables of thereafter created in such Additional Accounts thereafter transferred and the proceeds thereof, and any Insurance Proceeds and Recoveries relating to such Receivablesthereto, upon such transfercreation, the Issuer Trustee shall have a first priority perfected security interest in such propertyproperty (subject to Section 9-306 of the UCC as in effect in the State of Louisiana), except for Liens permitted under Section subsection 2.5(b), the interest of Seller as holder of the Seller -------------- ; (v) Transferor shall deliver to Trustee an Officer's Certificate 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 clauses (ii), (iii), ) through (iv); (vi) and (v) above; and ---- ----- ---- ---
(vii) Seller shall, on the Addition Date for Additional Accounts added pursuant to Section 2.6(a) or (b), Transferor shall deliver an Opinion of Counsel with -------------- --- respect to the Receivables in the Additional Accounts to the Owner Trustee (with a copy to each Rating Agency for any outstanding Series) substantially in the form of Exhibit C. ---------
(d) Seller shall provide to 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 Additional Accounts as required or permitted pursuant to Sections 2.6(a) E; and (b), Seller agrees that --------------- --- each new Charge Account originated in the normal course of FCNB's business and assigned to an Included Cycle after the SMT Termination Date, and the Receivables in which are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to such billing cycle; 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, (iivii) the inclusion in 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 Seller shall have satisfied any ------------------ applicable condition to such addition), 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(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 Issuer, and (ii) shall deliver to the Owner 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 as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Owner Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at any time.
(i) The Rating Agency Condition shall be applicable and must be have been satisfied whenever as to the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2initial transfer of Receivables from such Additional Accounts (other than Automatic Additional Accounts) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to the addition of Additional ----------- AccountsParticipations.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First National Bank of Commerce)
Addition of Accounts. (a) If, during as of the close of business on the last day of any period of 30 consecutive days ending after the SMT Termination Date either Collection Period, (i) the average Aggregate Net Principal Receivables Pool Balance on such day is less than the Minimum Aggregate Principal Receivables averaged for Required Participation Amount as of the following Distribution Date (after giving effect to the allocations, distributions, withdrawals and deposits to be made on such period Distribution Date), or (ii) the average Seller 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 Minimum 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 averaged for or (ii) the result obtained by multiplying (x) such periodSeller's Participation Amount by (y) the percentage equivalent of the portion of the Seller's Interest represented by the CARCO Certificate, either Seller or is at least equal to 2% of such Pool Balance, as the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 Business Days thereafter) 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, at its sole discretion, subject to the conditions specified in paragraph (d) below, voluntarily designate additional Eligible Accounts ("Additional ---------- including Partial Accounts") to be included as Accounts and shall transfer to the Trust the Receivables in such -------- Additional Accounts to (and the Issuer, in a sufficient amount so that (xrelated Collateral Security) the average Aggregate Net Principal Receivables would at least equal the Minimum Aggregate Principal Receivables averaged for such 30-day period and (ii) the average Seller Amount would at least equal the Minimum Seller Amount averaged for such 30-day period would have, if the Receivables from of such Additional Accounts had been transferred to the Issuer during such 30-day period. Each of the averages referred to in the preceding sentence shall be calculating by taking the sum of the specified amount at the end of each Business Day falling in that period and dividing by the number of Business Days falling in that period.
(b) In addition to its obligation under Section 2.6(a), Seller may, but -------------- shall not be obligated to, from time to time, designate Additional Accounts to be included as Accounts so long as after giving effect to such addition not more than 20% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquentAccounts.
(c) Seller agrees that any Receivables and Collateral Security from such Additional Accounts shall be transferred by Seller sold to the Issuer under Section 2.6(a), Trust effective on a date (bthe "Addition Date") specified in a written notice provided by the Seller (or (ethe Servicer on its behalf) upon and -------------- --- --- subject to the following conditions:
Trustee, the Rating Agencies, any Agent and any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (ithe "Addition Notice") On on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date (the "Notice Date") prior to ----------- the ). The Addition Date in respect of Notice shall also specify whether any such Additional Accounts added 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 2.6(a2.05(a) or (b), ) only upon satisfaction of each of the following conditions on or prior to the related Addition Date:
(i) the Seller shall give have provided the Owner Trustee Trustee, any Agent, the Rating Agencies and the ------------- --- Servicer written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferredany Enhancement Providers with a timely Addition Notice;
(ii) Seller (A) such Additional Accounts shall transfer to the Issuer Receivables only in all be Eligible Accounts, and (B) shall satisfy the applicable condition in accordance with Section 2.6(f) 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 Net 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 Net Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15;
(iii) On or prior to the Addition Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller shall have ------------- --- delivered to the Owner Trustee a duly executed written Assignment Agreement assignment (including an acceptance by the Owner Trustee on behalf of the Issuer for the benefit of the NoteholdersTrustee) in substantially the form of Exhibit A B (the "Assignment --------- ---------- AgreementAssignment") 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 Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche or written list containing a true and complete list of all Additional Accounts identified by account number and by Receivable balance as of the Addition Date in respect of Additional Accounts added required to be delivered 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 Agreement2.01;
(iv) the Seller shall 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 deemed adverse to represent and warrant that (w) as the interests of the Addition Date, Schedule 1 to Beneficiaries were used in selecting such Additional Accounts; (B) the Assignment Agreement and the computer ---------- file or microfiche list of Additional Accounts delivered pursuant to Section 2.6(cclause (iii) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder above is true and correct in all material respects as of the Addition Date, Additional Cut-Off Date and (xC) each Additional Account is, as of each of the Notice Date and the Addition Date, an Eligible Accountneither CFC, (y) no selection procedures reasonably believed by CCC, nor the Seller to be materially adverse to the interests were insolvent nor will any of the Noteholders were utilized in selecting the Additional Accounts from the available Eligible Accounts, and (z) as of the Addition Date, Seller is not insolvent and will not be rendered them have been made insolvent by adding such transfer nor are any such Additional Account to any Cycle;
(v) Seller shall be deemed to represent and warrant that, as of the Addition Date, 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 Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer free and clear them aware of any Lien of any Person, except for (i) Liens permitted under Section 2.5(b), (ii) the interest of Seller as -------------- holder of the Seller Certificate 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 this Agreement and any Indenture Supplement, or (y) a grant of a security interest in such property to the Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer 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 of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such 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 interest of Seller as holder of the Seller -------------- Certificate 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 Supplementpending insolvency;
(vi) Seller shall, on the Addition Date for Rating Agency Condition shall have been satisfied with respect to such addition;
(vii) the addition of the Receivables arising in such Additional Accounts added pursuant shall not result in the occurrence of an Early Amortization Event;
(viii) the Seller shall have delivered to Section 2.6(a) or (b), deliver 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), (iii), (iv) and (v) above; and ---- ----- ---- ---
through (vii) above and (B) that the Seller shall, on reasonably believes that the Addition Date for addition of the Receivables arising in such Additional Accounts added pursuant 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 Section 2.6(athe Trustee and any Enhancement Providers (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 C. ---------
G-2 and (dB) Seller shall provide except in the case of an addition required by Section 2.05(a), a Tax Opinion with respect to 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). -------------- ---such addition.
(e) In addition The Seller hereby represents and warrants as of the applicable Addition Date as to the occasional designation 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 required or permitted pursuant "Automatic Additional Accounts".) On the Addition Date with respect to Sections 2.6(a) and (b)any Automatic Additional Accounts, Seller agrees that --------------- --- each new Charge Account originated in the normal course of FCNB's business and assigned to an Included Cycle after the SMT Termination Date, and Trust shall purchase the Receivables in which are purchased by Seller pursuant such Automatic Additional Accounts (and such Automatic Additional Accounts shall be deemed to be Accounts for purposes of this Agreement) as of the close of business on the applicable Additional Cut-Off Date, subject to the Receivables Purchase Agreementsatisfaction of the following conditions:
(i) such Automatic Additional Accounts shall be Eligible Accounts;
(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 DCS or the Seller shall automatically be included as an Account (and have occurred nor shall the transfer of the Receivables arising thereunder automatically transferred in the Automatic Additional Accounts to the Issuer) effective on the tenth Business Day following the end Trust have been made in contemplation of the Monthly Period occurrence thereof;
(v) the addition of the Receivables arising in which such account is assigned to such billing cycle; provided, however, that such automatic inclusion and -------- ------- transfer the Automatic Additional Accounts shall not cause an early amortization event or any event that, after the giving of notice or the lapse of time, would constitute a early amortization event to occur with respect to any such account if: Series;
(ivi) such account does not qualify as on or before each Addition Date with respect to Automatic Additional Accounts, the Seller shall have delivered to the Trustee and the Rating Agencies (A) an Eligible Account, (ii) the inclusion in the Issuer 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) a Tax Opinion with respect to such Accountaddition;
(vii) within ten Business Days of the date on which any such Receivables are added to the Trust, 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 Seller shall have satisfied any ------------------ applicable condition to such addition), 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(e). On or before the fifth Business Day of each month next ----------- succeeding a calendar month in which Accounts were included pursuant delivered to the preceding sentence, Seller shall (i) indicate in its books Trustee a written assignment and records, including the computer files of the receivables, that the Receivables created in connection with such included Accounts have been transferred to the Issuer, and (ii) shall deliver to the Owner Trustee a computer file or a microfiche list containing a true and complete list of all the related Automatic Additional Accounts specifying for each such included Accounts identified by Account its account number number, the collection status, the aggregate amount outstanding in such Account and by the aggregate amount of Principal Receivables balance outstanding in such Account; and
(viii) the Seller shall have delivered to 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 end 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 such calendar monththe applicable Additional Cut-Off Date, which 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 shall required to be delivered pursuant to Section 2.01 with respect to such Automatic Additional Accounts and (ii) a duly executed written Assignment (including an acceptance by the Owner Trustee as confidential and proprietary and incorporated into and made a part for the benefit of the Certificateholders), substantially in the form of Exhibit B to this Agreement. SellerUnless each Rating Agency otherwise consents, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion number of Automatic Additional Accounts added pursuant to Section 2.6(e) at the Trust with respect to any time.
(i) The 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 requested and obtained notification from each Rating Agency Condition of 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 that 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 Trustee shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the have received confirmation from each Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to that the addition of all Automatic Additional ----------- AccountsAccounts included as Accounts during the three consecutive Collection Periods ending in the 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 1 contract
Samples: Pooling and Servicing Agreement (Daimlerchrysler Wholesale Receivables LLC)
Addition of Accounts. (a) If, during on any period of 30 consecutive days ending day after the SMT Termination Date either (i) Date, the average Aggregate Net Principal Receivables Balance is less than the Minimum Aggregate Principal Receivables averaged for such period or (ii) the average Seller Amount is less than the Minimum Seller Amount averaged for such periodBalance, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 Business Days 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 (x) the average Aggregate Net Principal Receivables would at least equal the Minimum Aggregate Principal Receivables averaged for Balance on such 30-day period and (ii) the average Seller Amount would at least equal the Minimum Seller Amount averaged for such 30-day period would have, if the Receivables from such Additional Accounts had been transferred to the Issuer during on or prior to such 30-day period. Each of day, at least equaled the averages referred to in the preceding sentence shall be calculating by taking the sum of the specified amount at the end of each Business Day falling in that period and dividing by the number of Business Days falling in that periodMinimum 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, designate Additional Accounts to be included as Accounts Accounts, so long as after giving effect to such addition not more than 20% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquentdelinquent (and for 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 (e) upon and -------------- --- --- 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 Section 2.6(a) or (b), Seller shall give the Owner Trustee -------------- --- and the ------------- --- Servicer written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) shall satisfy the applicable condition in accordance with Section 2.6(f) 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 Net 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 Net 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 Additional Accounts;
(iii) On or prior to the Addition Date, in respect of Additional Accounts 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 the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) in substantially the form of Exhibit A (the "Assignment --------- ---------- 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 Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number number, and by Receivable balance the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts 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 (w) as of the Addition Date, Schedule 1 to the Assignment Agreement and ---------- the computer ---------- file or microfiche list delivered pursuant to Section 2.6(c) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date, (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 from the available Eligible Accounts, and (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 be deemed to represent and warrant that, as of the Addition Date, 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 Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer free and clear of any Lien of any Person, except for (i) Liens permitted under Section 2.5(b), (ii) the interest of Seller as -------------- holder of the Seller Certificate 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 this Agreement and any Indenture Supplement, or (y) a grant of a security interest in such property to the Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer 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 of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such 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 interest of Seller as holder of the Seller -------------- Certificate 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) above; and ---- ----- ---- ---
(vii) Seller shall, on 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 C. ---------
(d) Seller shall provide to 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 Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new Charge Account originated in the normal course of FCNB's business and assigned to an Included Cycle after the SMT Termination Date, and the Receivables in which are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to such billing cycle; 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 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 Seller shall have satisfied any ------------------ applicable condition to such addition), 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(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 Issuer, and (ii) shall deliver to the Owner 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 as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Owner Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at any time.
(i) The Rating Agency Condition shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to the addition of Additional ----------- Accounts.2.6
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Spiegel Master Trust)
Addition of Accounts. (a) If, (i) during any period of 30 thirty consecutive days ending after days, the SMT Termination Date either Transferor Interest averaged over that period is less than 5% (ior such higher percentage as may be specified in any Supplement, such percentage the "Minimum Transferor Interest") of the Average Principal Receivables, 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 average Aggregate Net 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 Average Principal Receivables of such Additional Accounts shall be deemed to be outstanding in the Trust during each day of such 30-day period, is at least equal to the Minimum Transferor Interest, or (ii) on any Record Date the aggregate amount of Principal Receivables is less than the Minimum Aggregate Principal Receivables averaged for such period or (ii) Receivables, the average Seller Amount is less than the Minimum Seller Amount averaged for such period, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 Business Days thereafter) Seller Transferor shall designate additional Eligible Additional 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 such that (x) the average Aggregate Net aggregate amount of Principal Receivables would at least will be equal to or greater than the Minimum Aggregate Principal Receivables averaged for such 30-day period and (ii) the average Seller Amount would at least equal the Minimum Seller Amount averaged for such 30-day period would have, if the Receivables. Receivables from such Additional Accounts had been shall be transferred to the Issuer during Trust on or before the tenth Business Day following such 30thirty-day period. Each of period or Record Date, as the averages referred to in the preceding sentence shall be calculating by taking the sum of the specified amount at the end of each Business Day falling in that period and dividing by the number of Business Days falling in that periodcase may be.
(b) In addition to its obligation under Section 2.6(asubsection 2.06(a), Seller the Transferor may, but -------------- shall not be obligated to, designate from time to time, designate time Additional Accounts of the Transferor to be included as Accounts so long as after giving effect to such addition Accounts; provided, that the Transferor shall not make more than 20% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquentone such designation in any one Monthly Period.
(c) Seller The Transferor agrees that any such transfer of Receivables from Additional Accounts shall be transferred by Seller to the Issuer Accounts, under Section 2.6(a), subsection 2.06(a) or (b) or shall satisfy the following conditions (e) upon and -------------- --- --- subject to the following conditions:extent provided below):
(i) On on or before the fifth Business Day prior to the Addition Date with 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") prior to ----------- the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller the Transferor shall give the Owner Trustee Trustee, each Rating Agency and the ------------- --- Servicer written notice that such Additional Accounts will be included and specifying included, which notice shall specify the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) shall satisfy the applicable condition in accordance with Section 2.6(f) if such designation of Additional Accounts -------------- is made pursuant to Section 2.6(b) on 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 Net 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 Net Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15;
(iii) On or prior to before the Addition Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller the Transferor shall have ------------- --- delivered to the Owner Trustee a written Assignment Agreement assignment (including an acceptance by the Owner Trustee on behalf of the Issuer Trust for the benefit of the NoteholdersInvestor Certificateholders) in substantially the form of Exhibit A B (the "Assignment --------- ---------- AgreementAssignment") and the Transferor 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 Issuer; and Trust and, within five Business Days thereafter, the Transferor shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts Accounts, identified by account number and by Receivable balance the aggregate amount of the Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts added pursuant to Section ------- 2.6(a) or (b)Cut Off Date, 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;
(iviii) Seller the Transferor shall be deemed to represent and warrant that (w) as of the Addition Date, Schedule 1 to the Assignment Agreement and the computer ---------- file or microfiche list delivered pursuant to Section 2.6(c) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date, (x) each Additional Account is, as of the Addition Cut Off Date, an Eligible Account, and each Receivable in such Additional Account, is, as of the Addition Cut Off Date, an Eligible Receivable, (y) no selection procedures reasonably believed by Seller the Transferor to be materially adverse to the interests of the Noteholders Investor Certificateholders were utilized in selecting the Additional Accounts from the available Eligible AccountsAccounts from the Bank Portfolio, and (z) as of the Addition Date, Seller the Transferor is not insolvent and will not be rendered insolvent by adding any such Additional Account to any Cycleinsolvent;
(viv) Seller the Transferor shall be deemed to represent and warrant that, as of the Addition Date, the Assignment Agreement constitutes either (x) a valid transfer and assignment to the Issuer Trust of all right, title and interest of Seller in, the Transferor in and to and under the Receivables then existing and thereafter arising created in respect of the Additional Accounts, all monies due or to become due with respect thereto (including all Finance Charge Receivables), and all proceeds (as defined in the UCC as in effect in the State of Delaware) of such Receivables and Insurance Proceeds relating thereto, thereto and such property Receivables and all proceeds thereof and Insurance Proceeds relating thereto will be owned held by the Issuer Trust free and clear of any Lien of any PersonPerson claiming through or under the Transferor or any of its Affiliates, except for (i) Liens permitted under Section 2.5(bsubsection 2.05(b), (ii) the interest of Seller the Transferor as -------------- holder Holder of the Seller Exchangeable Transferor Certificate and (iii) Sellerthe Transferor's right to receive interest accruing on, and investment earnings in respect of, the Collection Finance Charge Account and the Principal Account, or any Series Account as provided in this Agreement and any Indenture Supplement, related Supplement or (y) a grant of a security interest (as defined in the UCC as in effect in the State of Delaware) in such property to the IssuerTrust, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds (as defined in the UCC as in effect in the State of Delaware) thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer conveyance of such Receivables to the IssuerTrust, and which will be enforceable with respect to the Receivables thereafter transferred created in respect of Additional AccountsAccounts conveyed on such Addition Date, the proceeds (as defined in the UCC as in effect in the State of Delaware) thereof and Insurance Proceeds relating thereto upon such transfercreation; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer Trust in such property, upon the filing of a financing statement as described in Section 2.1 2.01 with respect to such Additional Accounts and in ----------- the case of the Receivables of thereafter created in such Additional Accounts thereafter transferred and the proceeds (as defined in the UCC as in effect in the State of Delaware) thereof, and Insurance Proceeds relating to such Receivablesthereto, upon such transfercreation, the Issuer Trust shall have a first priority perfected security interest in such propertyproperty (subject to Section 9-306 of the UCC as in effect in the State of Delaware), except for Liens permitted under Section 2.5(bsubsection 2.05(b), the interest of Seller as holder of the Seller -------------- Certificate 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;
(viv) Seller shall, on the Addition Date for Additional Accounts added pursuant Transferor shall deliver an Officer's Certificate substantially in the form of Schedule 2 to Section 2.6(a) or (b), deliver a certificate of a Vice -------------- --- President or more senior officer Exhibit B to the Trustee confirming the items set forth in paragraphs paragraph (ii), (iii), (iv) and (v) above; and ---- ----- ---- ---;
(viivi) Seller shall, on the Addition Date for Additional Accounts added pursuant to Section 2.6(a) or (b), Transferor shall deliver an Opinion of Counsel with -------------- --- respect to the Receivables in the Additional Accounts to the Owner Trustee (with a copy to the Rating Agency) substantially in the form of Exhibit C. ---------E; and
(dvii) Seller the Transferor shall provide to each Rating Agency have received notice from Standard & Poor's and to each Enhancement Provider prior written notice each time Xxxxx'x that the inclusion of such accounts as Additional Accounts are added pursuant to Section 2.6(asubsection 2.06(b) or (b). -------------- ---
(e) In addition to the occasional designation of Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new Charge Account originated will not result in the normal course reduction or withdrawal of FCNB's business its then existing rating of any Series of Investor Certificates then issued and assigned to an Included Cycle after the SMT Termination Date, outstanding and the Receivables in which are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to such billing cycle; 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 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 Seller shall have satisfied any ------------------ applicable condition to delivered such addition), 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(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 Issuer, and (ii) shall deliver to the Owner 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 as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Owner Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at any timeTrustee.
(i) The Rating Agency Condition shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to the addition of Additional ----------- Accounts.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Usa Credit Card Master Trust)
Addition of Accounts. (a) If, during on any period of 30 consecutive days ending day after the SMT FCMT Termination Date either (i) Date, the average Aggregate Net Principal Receivables Balance is less than the Minimum Aggregate Principal Receivables averaged for such period or (ii) the average Seller Amount is less than the Minimum Seller Amount averaged for such periodBalance, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 Business Days 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 (x) the average Aggregate Net Principal Receivables would at least equal the Minimum Aggregate Principal Receivables averaged for Balance on such 30-day period and (ii) the average Seller Amount would at least equal the Minimum Seller Amount averaged for such 30-day period would have, if the Receivables from such Additional Accounts had been transferred to the Issuer during on or prior to such 30-day period. Each of day, at least equaled the averages referred to in the preceding sentence shall be calculating by taking the sum of the specified amount at the end of each Business Day falling in that period and dividing by the number of Business Days falling in that periodMinimum 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, designate Additional Accounts to be included as Accounts Accounts, so long as after giving effect to such addition not more than 20% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquentdelinquent (and for 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 (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 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 (B) shall satisfy the applicable condition in accordance with Section 2.6(f) 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 Net Account Additions after giving effect to such addition addition, plus the related Base Amount 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 Net 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 Additional Accounts;
(iii) On or prior to the Addition Date, in respect of Additional Accounts 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 the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) in substantially the form of Exhibit A (the "Assignment --------- ---------- 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 Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number number, and by Receivable balance the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts 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 (w) as of the Addition Date, Schedule 1 to the Assignment Agreement and the computer ---------- file or microfiche list delivered pursuant to Section 2.6(c) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date, (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 from the available Eligible Accounts, and (z) as of the Addition Date, Seller is not insolvent and will not be rendered insolvent by adding any such Additional Account to any CycleAccount;
(v) Seller shall 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 Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer free and clear of any Lien of any Person, except for (i) Liens permitted under Section 2.5(b), (ii) the interest of Seller as -------------- holder of the Seller Certificate Interest and (iii) -------------- Seller's right to receive interest accruing on, and investment earnings in respect of, the Collection Account or any Series Account Account, as provided in this Agreement and any Indenture Supplement, or (y) a grant of a security interest in such property to the Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer 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 of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such 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 interest of Seller as holder of the Seller -------------- Certificate 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 -------------- --- Vice President or more senior officer confirming the items set forth in paragraphs (ii), (iii), (iv) and (v) above; and ---- ----- ---- ---
(vii) Seller shall, on the Addition Date for Additional Accounts added pursuant to Section 2.6(a) or (b), deliver an Opinion of Counsel with -------------- --- with respect to the Receivables in the Additional Accounts to the Owner Trustee substantially in the form of Exhibit C. ---------F-2, 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 Section 2.6(a) or (b). -------------- ---
(e) In addition to the occasional designation of Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new Charge Account MasterCard or VISA account originated in the normal course of FCNB's business and assigned to an Included Cycle after the SMT Termination Date, and the Receivables in which are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to such billing cycle; 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 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 Seller shall have satisfied any ------------------ applicable condition to such addition), 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(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 Issuer, and (ii) shall deliver to the Owner 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 as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Owner Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at any time.
(i) The Rating Agency Condition shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to the addition of Additional ----------- Accounts.business
Appears in 1 contract
Samples: Transfer and Servicing Agreement (First Consumers Master Trust)
Addition of Accounts. (aSection 2.6(b)(i) If, during any period of 30 consecutive days ending after the SMT Termination Date either (i) the average Aggregate Net Principal Receivables is less than the Minimum Aggregate Principal Receivables averaged for such period or (ii) the average Seller Amount is less than the Minimum Seller Amount averaged for such period, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 Business 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 (x) the average Aggregate Net Principal Receivables would at least equal the Minimum Aggregate Principal Receivables averaged for such 30-day period and (ii) the average Seller Amount would at least equal the Minimum Seller Amount averaged for such 30-day period would have, if the Receivables from such Additional Accounts had been transferred to the Issuer during such 30-day period. Each of the averages referred to in the preceding sentence shall be calculating by taking the sum of the specified amount at the end of each Business Day falling in that period amended and dividing by the number of Business Days falling in that period.
(b) In addition restated to its obligation under Section 2.6(a), Seller may, but -------------- shall not be obligated to, from time to time, designate Additional Accounts to be included read as Accounts so long as after giving effect to such addition not more than 20% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquent.
(c) Seller agrees that any Receivables from Additional Accounts shall be transferred by Seller to the Issuer under Section 2.6(a), (b) or (e) upon and -------------- --- --- subject to the following conditionsfollows:
(i) On the cumulative number of Accounts the Receivables of which have been added or before are designated to be added to the fifth Business Day Trust pursuant to subsection 2.6
(a) since the later of the Initial Closing Date and the first day of the twelfth preceding Monthly Period which satisfy the conditions of clause (a) of the definition of "Notice Date") prior to ----------- Automatic Additional Accounts" and the Addition Date in respect of Granite Additional Accounts added pursuant on such date shall not be in excess of 20% of the amount equal to Section 2.6(a(w) or (b)the number of the Active Accounts as of the later of the Initial Closing Date, Seller shall give the Owner Trustee Latest Rating Agency Approval Date and the ------------- --- Servicer written notice that such Additional Accounts will be included and specifying the approximate aggregate amount last day of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) shall satisfy the applicable condition in accordance with Section 2.6(f) 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 twelfth preceding Monthly Period plus (x) the --------------- sum number of Accounts the Receivables of which were designated to be added to the Trust pursuant to clause (b) of the Annual Net Account Additions after giving effect to definition of "Automatic Additional Accounts" (other than Granite Additional Accounts) on the first day of such addition after the later of the Initial Closing Date, the Latest Rating Agency Approval Date and the last day of the twelfth preceding Monthly Period plus the related Base Amount divided by (y) the related Base Amount number of Supplemental Accounts, if any, the Receivables of which were designated to exceed 1.20, or
(2) would cause be added to the quotient (Trust after the "Quarterly Quotient") of (x) ------------------ the sum later of the Quarterly Net Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15;
(iii) On or prior to the Addition Initial Closing Date, in respect of Additional Accounts 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 the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) in substantially the form of Exhibit A (the "Assignment --------- ---------- 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 Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number and by Receivable balance as of the Addition Date in respect of Additional Accounts 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 (w) as of the Addition Date, Schedule 1 to the Assignment Agreement and the computer ---------- file or microfiche list delivered pursuant to Section 2.6(c) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Latest Rating Agency Approval Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as last day of the Addition Date, (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 from the available Eligible Accounts, and twelfth preceding Monthly Period minus (z) as any Removed Accounts removed after the later 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 be deemed to represent and warrant that, as of the Addition Initial Closing Date, the Assignment Agreement constitutes either (x) a valid transfer to Latest Rating Agency Approval Date and the Issuer of all right, title and interest of Seller in, to and under the Receivables then existing and thereafter arising in respect last day of the Additional Accounts, all monies due or to become due with respect thereto (including all Finance Charge Receivables), and all proceeds of such Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer free and clear of any Lien of any Person, except for (i) Liens permitted under Section 2.5(b), (ii) the interest of Seller as -------------- holder of the Seller Certificate 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 this Agreement and any Indenture Supplement, or (y) a grant of a security interest in such property to the Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfertwelfth preceding Monthly Period; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer 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 of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such 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 interest of Seller as holder of the Seller -------------- Certificate 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) above; and ---- ----- ---- ---
(vii) Seller shall, on 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 C. ---------
(d) Seller shall provide to 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 Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new Charge Account originated in the normal course of FCNB's business and assigned to an Included Cycle after the SMT Termination Date, and the Receivables in which are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to such billing cycle; 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 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 Seller shall have satisfied any ------------------ applicable condition to such addition), 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(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 Issuer, and (ii) shall deliver to the Owner 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 as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Owner Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at any time.
(i) The Rating Agency Condition shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to the addition of Additional ----------- Accounts.and
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Sri Receivables Purchase Co)
Addition of Accounts. (a) If, during on any period of 30 consecutive days ending day after the SMT FCMT Termination Date either (i) Date, the average Aggregate Net Principal Receivables Balance is less than the Minimum Aggregate Principal Receivables averaged for such period or (ii) the average Seller Amount is less than the Minimum Seller Amount averaged for such periodBalance, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 Business Days 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 (x) the average Aggregate Net Principal Receivables would at least equal the Minimum Aggregate Principal Receivables averaged for Balance on such 30-day period and (ii) the average Seller Amount would at least equal the Minimum Seller Amount averaged for such 30-day period would have, if the Receivables from such Additional Accounts had been transferred to the Issuer during on or prior to such 30-day period. Each of day, at least equaled the averages referred to in the preceding sentence shall be calculating by taking the sum of the specified amount at the end of each Business Day falling in that period and dividing by the number of Business Days falling in that periodMinimum 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, designate Additional Accounts to be included as Accounts Accounts, so long as after giving effect to such addition not more than 20% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquentdelinquent (and for 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 (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 Section 2.6(a) or (b), Seller shall give the Owner Trustee and the ------------- Servicer -------------- --- 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 (B) shall satisfy the applicable condition in accordance with Section 2.6(f) 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 Net Account Additions after giving effect to such addition addition, plus the related Base Amount Amount, divided by (y) the related Base Amount to exceed 1.20, or
(2) would cause the quotient (the "Quarterly Quotient") of (x) the ------------------ the sum of the Quarterly Net 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 Additional Accounts;
(iii) On or prior to the Addition Date, in respect of Additional Accounts 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 the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) in substantially the form of Exhibit A (the "Assignment --------- ---------- 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 Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number number, and by Receivable balance the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts 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 (w) as of the Addition Date, Schedule 1 to the Assignment Agreement and the computer ---------- file or microfiche list delivered pursuant to Section 2.6(c) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date, (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 from the available Eligible Accounts, and (z) as of the Addition Date, Seller is not insolvent and will not be rendered insolvent by adding any such Additional Account to any CycleAccount;
(v) Seller shall be deemed to represent and warrant that, as of the Addition Date, 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 Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer free and clear of any Lien of any Person, except for for
(i) Liens permitted under Section 2.5(b), (ii) the interest of Seller as Interest and -------------- holder of the Seller Certificate and (iii) Seller's right to receive interest accruing on, and investment earnings in respect of, of the Collection Account or any Series Account as provided in this Agreement and any Indenture Supplement, or (y) a grant of a security interest in such property to the Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer 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 of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such 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 interest of Seller as holder of the Seller -------------- Certificate 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) above; and ---- ----- ---- ---
(vii) Seller shall, on 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 C. ---------F-2, 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 Section 2.6(a) or (b). -------------- ---
(e) In addition to the occasional designation of Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new Charge Account MasterCard or VISA account originated in the normal course of FCNBSeller's business and assigned to an Included Cycle after the SMT FCMT Termination Date, and the Receivables in which are purchased by Seller pursuant to the Receivables Purchase Agreement, Date shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the tenth Business Day following the end of the Monthly Period in date on which such account is assigned to such billing cyclecreated; 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 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 Seller shall have satisfied any ------------------ applicable condition to such addition), 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(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 Issuer, and (ii) shall deliver to the Owner 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 as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Owner Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at any time.
(i) The Rating Agency Condition shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to the addition of Additional ----------- Accounts.-------
Appears in 1 contract
Samples: Transfer and Servicing Agreement (First Consumers Master Trust)
Addition of Accounts. (a) (i) If, (A) during any period of 30 twenty consecutive days ending after days, the SMT Termination Date either Transferor Interest averaged over that period is less than the Minimum Transferor Interest for that period the Transferor shall designate additional eligible MasterCard or VISA accounts from the Bank Portfolio (itogether with all other Accounts transferred to the Trust pursuant to this Section 2.06, “Additional Accounts”) to be included as Accounts in a sufficient amount such that the average Aggregate Net of the Transferor Interest as a percentage of the Average Principal Receivables for such 20-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 20-day period, is at least equal to the Minimum Transferor Interest, or (B) on any Record Date the aggregate amount of Principal Receivables is less than the Minimum Aggregate Principal Receivables averaged (as adjusted for any Series having a Companion Series as described in the Supplement for such period or (ii) Series), the average Seller Amount is less than the Minimum Seller Amount averaged for such period, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 Business Days thereafter) Seller Transferor shall designate additional Eligible Additional 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 such that (x) the average Aggregate Net aggregate amount of Principal Receivables would at least will be equal to or greater than the Minimum Aggregate Principal Receivables averaged for Receivables. Such Accounts shall be limited to Accounts originated by the Credit Card Originator and created in connection with the Cabela’s card program unless the Transferor shall have received written confirmation from each Rating Agency that such 30-day period and (ii) the average Seller Amount would at least equal the Minimum Seller Amount averaged for such 30-day period would have, if the designation will not result in a downgrade or withdrawal of its then existing rating of any outstanding Series of Investor Certificates. Receivables from such Additional Accounts had been shall be transferred to the Issuer during Trustee on or before the tenth Business Day following such 3020-day period. Each period or Record Date, as the case may be.
(ii) In lieu of, or in addition to, designating Additional Accounts pursuant to clause (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 Credit Card Originator or any Affiliate of the averages referred Credit Card Originator and collections thereon (“Participations”). Such Accounts shall be limited to Accounts originated by the Credit Card Originator and created in connection with the Cabela’s card program unless the Transferor shall have received written confirmation from each Rating Agency that such designation will not result in a downgrade or withdrawal of its then existing rating of any outstanding Series of Investor Certificates. The addition of Participations in the preceding sentence Trust pursuant to this paragraph (a) or paragraph (b) below shall be calculating effected by taking the sum an amendment hereto, dated as of the specified amount at applicable Addition Date, pursuant to Section 13.01(a). Notwithstanding anything in this subsection 2.06(a)(ii) to the end contrary, to the extent that such participations encompass previously issued credit-card or other asset-backed securities, such securities (i) either will have been previously registered under the Securities Act or will have been held for the “holding period” prescribed by Rule 144(k) under the Securities Act and (ii) will have been acquired in a bona fide secondary market transaction, rather than from any Transferor or any Affiliate of each Business Day falling any Transferor or such securities will have otherwise been acquired in that period and dividing by compliance with the number of Business Days falling in that periodSecurities Act.
(b) In addition to its obligation under Section 2.6(asubsection 2.06(a), Seller the Transferor may, but -------------- shall not be obligated to, designate from time to time, designate time Additional Accounts of the Transferor to be included as Accounts so long or Participations to be included as after giving effect to such addition not more than 20% property of the Principal ReceivablesTrust, by outstanding balance, will be 30 in either case as of the applicable Addition Date. Such Accounts or more days delinquent.
(c) Seller agrees that any Receivables from Additional Accounts Participations shall be transferred by Seller limited to the Issuer under Section 2.6(a), (b) Accounts 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 Section 2.6(a) or (b), Seller shall give the Owner Trustee and the ------------- --- Servicer written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) shall satisfy the applicable condition in accordance with Section 2.6(f) 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 Net 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 Net Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15;
(iii) On or prior to the Addition Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller shall have ------------- --- delivered to the Owner Trustee a written Assignment Agreement (including an acceptance Participations originated by the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) in substantially the form of Exhibit A (the "Assignment --------- ---------- Agreement") Credit Card Originator 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 Cabela’s card program unless the Issuer; and Transferor shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number and by Receivable balance as of the Addition Date in respect of Additional Accounts 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 (w) as of the Addition Date, Schedule 1 to the Assignment Agreement and the computer ---------- file or microfiche list delivered pursuant to Section 2.6(c) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date, (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 received written confirmation from the available Eligible Accounts, and (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 be deemed to represent and warrant that, as of the Addition Date, 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 Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer free and clear of any Lien of any Person, except for (i) Liens permitted under Section 2.5(b), (ii) the interest of Seller as -------------- holder of the Seller Certificate 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 this Agreement and any Indenture Supplement, or (y) a grant of a security interest in such property to the Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer 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 of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such 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 interest of Seller as holder of the Seller -------------- Certificate 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) above; and ---- ----- ---- ---
(vii) Seller shall, on 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 C. ---------
(d) Seller shall provide to 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 Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new Charge Account originated in the normal course of FCNB's business and assigned to an Included Cycle after the SMT Termination Date, and the Receivables in which are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to such billing cycle; provided, however, that such automatic inclusion and -------- ------- transfer shall designation will not occur with respect to result in a downgrade or withdrawal of its then current rating of any such account if: (i) such account does not qualify as an Eligible Account, (ii) the inclusion in 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 Seller shall have satisfied any ------------------ applicable condition to such addition), 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(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 Issuer, and (ii) shall deliver to the Owner 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 as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Owner Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at any time.
(i) The Rating Agency Condition shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to the addition of Additional ----------- AccountsInvestor Certificates.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Cabela's Master Credit Card Trust)
Addition of Accounts. (a) If, during as of the end of any period of 30 consecutive days ending Collection Period beginning on or after the SMT Certificate Trust Termination Date either Date, (i) the average 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 Net Principal Receivables is less than the Minimum Aggregate Principal Receivables averaged for such period or (ii) Receivables, then the average Seller Amount is less than Transferor shall, before the Minimum Seller Amount averaged for such periodclose of business on the following Transfer Date, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 Business Days thereafter) Seller shall designate additional Eligible Accounts (the "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 (x) such that, after giving effect to such designation, the average Transferor Amount at least equals the Minimum Transferor Amount and the Aggregate Net Principal Receivables would at least equal equals the Minimum Aggregate Principal Receivables averaged for Receivables; provided, however, that the Transferor need not make any such 30-day period designation to the extent that the deficiencies described in clauses (i) and (ii) the average Seller Amount would at least equal the Minimum Seller Amount averaged for above have been eliminated on or before such 30-day period would have, if the Receivables from such Additional Accounts had been transferred to the Issuer during such 30-day period. Each of the averages referred to Transfer Date through reductions in the preceding sentence shall be calculating by taking Aggregate Invested Amount or through increases in the sum of amount on deposit in the specified amount at the end of each Business Day falling in that period and dividing by the number of Business Days falling in that periodExcess Funding Account.
(b) In addition to its obligation under Section 2.6(a), Seller the Transferor may, but -------------- shall not be obligated to, designate from time to time, designate time Additional Accounts to be included as Accounts so long as after giving effect to such addition not more than 20% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquentrelated Additional Account Closing Date.
(c) Seller The Transferor agrees that any Receivables from designation of Additional Accounts shall be transferred by Seller to the Issuer under Section 2.6(a), (b) and any designation of Additional Accounts made on or (eafter the Certificate Trust Termination Date under Section 2.6(b) upon and -------------- --- --- subject to shall satisfy 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 Account Closing Date, the Transferor shall have given the Owner Trustee, the Indenture Trustee, the Servicer, each Rating Agency and each other Person entitled thereto pursuant to Section 2.6(a) or (b), Seller shall give the Owner Trustee and the ------------- --- Servicer related Indenture Supplement written notice that such the Additional Accounts will be included as Accounts and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) shall satisfy the applicable condition in accordance with Section 2.6(f) 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 Net 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 Net Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15;
(iii) On or prior to before the Addition Additional Account Closing Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller the Transferor shall have ------------- --- delivered to the Owner Trustee a written Assignment Agreement (including an acceptance by and the Owner Trustee shall have accepted on behalf of the Issuer for the benefit of the NoteholdersNoteholders and any Enhancement Provider) a written assignment substantially in substantially the form of Exhibit A (the "Assignment --------- ---------- AgreementAssignment") and shall have clearly 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 Issuer; Issuer and the Transferor shall have delivered to the Owner Trustee a computer file or microfiche list containing represented by the Transferor to contain a true and complete list of all the Additional Accounts identified by account number and by Receivable balance in the Additional Accounts as of the Addition Date in respect of Additional Accounts added pursuant to Section ------- 2.6(a) or (b)Account Cut-Off Date, 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;
(iviii) Seller The Transferor shall be deemed to represent and warrant that (w) as of the Addition Date, Schedule 1 to the Assignment Agreement and the computer ---------- file or microfiche list delivered pursuant to Section 2.6(c) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date, (x) each Additional Account iswas, as of the Addition Additional Account Cut-Off Date, an Eligible Account, (y) no selection procedures reasonably believed by Seller the Transferor to be materially adverse to the interests of the Noteholders any outstanding Series of Notes or any Enhancement Provider were utilized used in selecting the Additional Accounts from the available Eligible Accounts, Accounts in the Transferor's portfolio of MasterCard and VISA credit card accounts; and (z) as of the Addition Additional Account Closing Date, Seller the Transferor is not insolvent and will not be rendered made insolvent by adding any such the transfer of the Receivables in the Additional Account to any CycleAccounts;
(viv) Seller The Transferor shall be deemed to represent and warrant that, as of the Addition Additional Account Closing Date, the Assignment Agreement constitutes either (xA) a valid transfer and assignment to the Issuer of all right, title and interest of Seller in, the Transferor in and to and under the Receivables then existing and thereafter arising created in respect of 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 (including all Finance Charge Receivablesto the extent set forth in Section 9-315 of the UCC as in effect in the Relevant UCC State), and all proceeds of such Receivables and Insurance Proceeds relating thereto, and such property all proceeds thereof will be owned by transferred to the Issuer free and clear of any Lien of any PersonPerson claiming through or under the Transferor or any of its Affiliates, except for (ix) Liens permitted under Section 2.5(b), (iiy) the interest of Seller the Transferor as -------------- holder of the Seller Exchangeable Transferor Certificate or any other Class held by the Transferor from time to time and (iiiz) Seller's any right of the holder of the Exchangeable Transferor Certificate to receive interest accruing on, and investment earnings in with respect ofto, the Collection Account or any Series Account other account or accounts maintained for the benefit of the Noteholders or any Enhancement Provider as provided in this Agreement and any Indenture Supplement, Supplement or (yB) 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) The Transferor shall deliver to the Indenture Trustee (with a copy to the Rating Agencies) an Officer's Certificate confirming the items set forth in paragraphs (ii) through (v) above 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 Receivables 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, thereto and all proceeds thereof. The Owner Trustee shall execute such documents and instruments of transfer or assignment as are prepared by the proceeds thereof Transferor and Recoveries and Insurance Proceeds relating thereto upon take such other actions as shall be reasonably requested by the transfer Transferor to effect the conveyance of such Receivables pursuant to this Section 2.6(d). If the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect removal of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer in such property, upon the filing of a financing statement as described in Section 2.1 with respect to such Excess Automatic Additional Accounts and in ----------- causes the case of Transferor Amount to be less than the Minimum Transferor Amount or the Aggregate Principal Receivables of 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 thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such Receivables, upon such transfer, the Issuer shall have a first priority perfected security interest be included as Accounts in such property, except for Liens permitted under Section 2.5(b), the interest of Seller as holder of the Seller -------------- Certificate 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 accordance with Section 2.6(a) or (b)in an amount such that, deliver a certificate of a Vice -------------- --- President or more senior officer confirming after giving effect to such designation, the items set forth in paragraphs (ii), (iii), (iv) and (v) above; and ---- ----- ---- ---
(vii) Seller shall, on Transferor Amount at least equals 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 C. ---------
(d) Seller shall provide to 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 Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new Charge Account originated in the normal course of FCNB's business and assigned to an Included Cycle after the SMT Termination Date, Minimum Transferor Amount and the Aggregate Principal Receivables in which are purchased by Seller pursuant to at least equals the Receivables Purchase Agreement, shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to such billing cycleMinimum Aggregate Principal Receivables; provided, however, that the Transferor need not make any such automatic inclusion 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 -------- ------- transfer such removal shall not occur 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 any such account if: (ifinancing statements when applicable) such account does not qualify as an Eligible Account, (ii) with respect to the inclusion Receivables then existing and thereafter created in the Issuer Automatic Additional Accounts for the transfer of accounts (as defined in the Receivables UCC as in effect in the Relevant UCC State) meeting the requirements of applicable state law in such Account, if manner and in such Accounts had been designated jurisdictions as are necessary to perfect the transfer and assignment of such Receivables 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 Seller shall have satisfied any ------------------ applicable condition to such addition), 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(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 Transferor to the Issuer, and (ii) shall to deliver a file-stamped copy of such financing statements or other evidence of such filings to the Owner 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 as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Owner Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at any timeIndenture Trustee.
(i) The Rating Agency Condition shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to the addition of Additional ----------- Accounts.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Fnanb Credit Card Master Trust)
Addition of Accounts. (a) If, during on any period of 30 consecutive days ending after Record Date, the SMT Termination Date either (i) the average Aggregate Net Principal Receivables Balance is less than the Minimum Aggregate Principal Receivables averaged for such period or (ii) the average Seller Amount is less than the Minimum Seller Amount averaged for such periodBalance, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 Business Days 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 IssuerTrust, in a sufficient amount so that (x) the average Aggregate Net Principal Receivables would at least equal the Minimum Aggregate Principal Receivables averaged for Balance on such 30-day period and (ii) the average Seller Amount would at least equal the Minimum Seller Amount averaged for such 30-day period Record Date would have, if the Receivables from such Additional Accounts had been transferred to the Issuer during Trust on or prior to such 30-day periodRecord Date, at least equaled the Minimum Aggregate Principal Balance. Each of the averages referred If Seller fails to in transfer Receivables as required by the preceding sentence sentence, then the Trustee shall be calculating by taking the sum of the specified amount at the end of each Business Day falling in that period and dividing by the number of Business Days falling in that periodgive Seller immediate notice thereof.
(b) In addition to its obligation under Section subsection 2.6(a), Seller may, but -------------- ----------------- shall not be obligated to, from time to time, designate Additional Accounts to be included as Accounts so long as after giving effect to such addition not more than 20% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquentAccounts.
(c) Seller agrees that any Receivables from Additional Accounts shall be transferred by Seller to the Issuer Trust under Section 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 Section subsection 2.6(a) or (b), Seller shall give the Owner Trustee and the ------------- Servicer ----------------- --- 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 Trust Receivables only in Eligible Accounts, and (B) shall satisfy the applicable condition in accordance with Section 2.6(f) shall, if such designation of Additional Accounts -------------- is made pursuant to Section subsection 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 Net Account Additions after giving effect to such addition addition, plus the related Base Amount 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 Net Account Additions after giving effect to such addition addition, plus the related Base Amount 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 prior to the Addition Date, in respect of Additional Accounts added pursuant to Section subsection 2.6(a) or (b), Seller shall have ------------- ----------------- --- delivered to the Owner Trustee a written Assignment Agreement transfer agreement (including an acceptance by the Owner Trustee on behalf of the Issuer Trust for the benefit of the NoteholdersInvestor Certificateholders) in substantially the form of Exhibit A (the --------- "Assignment --------- ---------- 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 IssuerTrust; and shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number number, and by Receivable balance the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts added pursuant to Section ------- subsection 2.6(a) or (b), which computer file or ----------------- --- microfiche list shall be marked as ------ --- Schedule 1 to the Assignment Transfer Agreement, ---------- delivered to the Owner Trustee as ---------- confidential and proprietary, shall be as of the date of such Assignment Transfer Agreement and incorporated into and made a part of such Assignment Transfer Agreement and this Agreement;
(iv) Seller shall be deemed to represent and warrant that (w) as of the Addition Date, Schedule 1 to the Assignment Agreement and the computer ---------- file or microfiche list delivered pursuant to Section 2.6(c) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date, (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 Investor Certificateholders were utilized in selecting the Additional Accounts from the available Eligible Accounts, and (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 be deemed to represent and warrant that, as of the Addition Date, the Assignment 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 Issuer 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 Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer Trust free and clear of any Lien of any Person, except for (i) Liens permitted under Section subsection 2.5(b), (ii) the interest of Seller as -------------- holder of the Seller Certificate Interest and ----------------- (iii) Seller's right to receive interest accruing on, and investment earnings in respect of, the Collection Account or Finance Charge Accounts, the Principal Accounts and any Series Account other Investor Accounts, as provided in this Agreement and any Indenture Supplement, 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 IssuerTrust, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the IssuerTrust, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Transfer Agreement constitutes the grant of a security interest to the Issuer 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 of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such Receivables, upon such transfer, the Issuer Trust shall have a first priority perfected security interest in such property, except for Liens permitted under Section subsection 2.5(b), the interest of Seller as holder of the Seller -------------- Certificate ----------------- Interest and Seller's right to receive interest accruing on, and investment earnings in respect of, the Collection Account or Finance Charge Accounts, the Principal Accounts and any Series Accountother Investor Accounts, as provided in this Agreement and any Indenture Supplement;
(vi) Seller shall, on the Addition Date for Additional Accounts added pursuant to Section subsection 2.6(a) or (b), deliver a certificate of a Vice -------------- ----------------- --- President or more senior officer confirming the items set forth in paragraphs clauses (ii), (iii), (iv) and (v) above; and ---- ----- ---- -------------- --- -- -
(vii) Seller shall, on the Addition Date for Additional Accounts added pursuant to Section subsection 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 C. ---------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 Section subsection 2.6(a) or (b). -------------- ------------------- -
(e) In addition to the occasional designation of Additional Accounts as required or permitted pursuant to Sections subsections 2.6(a) and (b)) above, Seller ----------------- - agrees that --------------- --- each new Charge Account MasterCard or VISA account originated in the normal course of FCNB's business and assigned to an Included Cycle after the SMT Termination Cut Off Date, and the where Receivables in which with respect to such accounts are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Receivables Trust Assets arising thereunder automatically transferred to the IssuerTrust) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to such one of Seller's billing cyclecycles; 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 Issuer Trust of the Receivables in such Account, if such Accounts had been designated by Seller pursuant to Section subsection 2.6(b), would have caused the ---------------- limitations set forth in -------------- Section subsection 2.6(c)(ii) to be exceeded (unless Seller there -------------------- shall have been delivered to the Trustee a letter from each Rating Agency confirming the Rating Agency Condition has been satisfied any ------------------ applicable condition with respect to the addition of such additionAdditional Account), or (iii) Seller otherwise designates such account as an account which is not to be included as an Account pursuant to this Section 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 IssuerTrust, and (ii) shall deliver to the Owner 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 Owner Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at any time.
(i) The Rating Agency Condition shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to the addition of Additional ----------- Accounts.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Consumers Master Trust)
Addition of Accounts. (a) If, If during any period of 30 consecutive days ending after days, the SMT Termination Date either (i) the average Aggregate Net Principal Receivables JCPR Amount averaged over that period is less than the Minimum Aggregate JCPR Percentage of the Average Principal Receivables, JCPR shall, under the terms of the Receivables averaged for such period or (ii) Purchase Agreement, require JCPenney to transfer the average Seller Amount is less than the Minimum Seller Amount averaged for such period, either Seller or the Servicer (whichever shall first become aware Receivables of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 Business Days thereafter) Seller shall designate additional Eligible Accounts ("Additional ---------- Accounts") to be included as Accounts Accounts, and JCPR shall transfer the purchase Receivables in such -------- Additional Accounts under the Receivables Purchase Agreement and transfer such Receivables to the IssuerTrust, in a sufficient amount so that (x) the average Aggregate Net of the JCPR Amount as a percent of the Average Principal Receivables would at least equal the Minimum Aggregate Principal Receivables averaged for during such 30-day period and (ii) the average Seller Amount would at least equal the Minimum Seller Amount averaged for such 30-30 day period would have, if the Receivables from such Additional Accounts had been transferred to the Issuer during Trust on the first day of such 30-30 day period. Each of , at least equaled the averages referred to in the preceding sentence shall be calculating by taking the sum of the specified amount at the end of each Business Day falling in that period and dividing by the number of Business Days falling in that periodMinimum JCPR Percentage.
(b) In addition to its obligation under Section subsection 2.6(a), Seller JCPR may, but -------------- shall not be obligated to, from time to time, agree with JCPenney to designate Additional Accounts to be included as Accounts so long as after giving effect to such addition not more than 20% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquentAccounts.
(c) Seller At any time that the Receivables in substantially all the Eligible Accounts of any Cycle have been transferred to the 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 data of inclusion in such Cycle.
(d) JCPR agrees that any Receivables from Additional Accounts shall first be sold by JCPenney to JCPR and transferred by Seller JCPR to the Issuer Trust under Section subsection 2.6(a), (b) or (ec) 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 Section 2.6(asubsection 2. 6(a) or (b), Seller JCPR shall give the Owner Trustee and the ------------- --- Servicer written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) shall satisfy the applicable condition in accordance with Section 2.6(f) 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 Net 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 Net Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15;
(iii) On or prior to the Addition Date, in respect of Additional Accounts 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 the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) in substantially the form of Exhibit A (the "Assignment --------- ---------- 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 Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number and by Receivable balance as of the Addition Date in respect of Additional Accounts 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 (w) as of the Addition Date, Schedule 1 to the Assignment Agreement and the computer ---------- file or microfiche list delivered pursuant to Section 2.6(c) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date, (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 from the available Eligible Accounts, and (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 be deemed to represent and warrant that, as of the Addition Date, 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 Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer free and clear of any Lien of any Person, except for (i) Liens permitted under Section 2.5(b), (ii) the interest of Seller as -------------- holder of the Seller Certificate 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 this Agreement and any Indenture Supplement, or (y) a grant of a security interest in such property to the Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer 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 of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such 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 interest of Seller as holder of the Seller -------------- Certificate 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) above; and ---- ----- ---- ---
(vii) Seller shall, on 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 C. ---------
(d) Seller shall provide to 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 Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new Charge Account originated in the normal course of FCNB's business and assigned to an Included Cycle after the SMT Termination Date, and the Receivables in which are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to such billing cycle; 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 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 Seller shall have satisfied any ------------------ applicable condition to such addition), 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(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 Issuer, and (ii) shall deliver to the Owner 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 as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Owner Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at any time.
(i) The Rating Agency Condition shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to the addition of Additional ----------- Accounts.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (JCP Receivables Inc)
Addition of Accounts. (a) If, during (1) as of the end of any period two consecutive Due Periods, the Transferor Amount as a percentage of 30 consecutive days ending after the SMT Termination Date either (i) the average Aggregate Net Trust Principal Receivables Component is less than the Minimum Aggregate Principal Receivables averaged for such period or (ii) Transferor Percentage, the average Seller Amount is less than the Minimum Seller Amount averaged for such period, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 Business Days thereafter) Seller Transferors shall designate additional Eligible Accounts (the "Additional ---------- Accounts") to be included as Accounts and shall transfer the Receivables in such -------- Additional Accounts to the Issuer, in a sufficient amount so such that (x) the average Aggregate Net Transferor Amount as a percentage of the Trust Principal Receivables would Component after giving effect to such addition at least equal equals the Minimum Aggregate Transferor Percentage, or (2) as of the end of any Due Period, the Trust Principal Receivables averaged for such 30-day period and (ii) the average Seller Amount would at least equal Component is less than the Minimum Seller Amount averaged for Trust Principal Component, then the Transferor shall designate Additional Accounts to be included as Accounts in a sufficient amount such 30-day period would have, if that the Trust Principal Component will be equal to or greater than the Minimum Trust Principal Component. Receivables from such Additional Accounts had been shall be transferred to the Issuer during such 30-day period. Each of the averages referred to Trust, in the preceding sentence shall be calculating by taking case of subclause (i), on or before 15 days following the sum Determination Date related to the second of such Due Periods and, in the specified amount at case of subclause (2), on or before 15 days following such Determination Date (the end of each Business Day falling in that period and dividing by the number of Business Days falling in that period"Additional Account Closing Date").
(b) In addition to its obligation under Section 2.6(asubsection 2.06(a), Seller the Transferors may, but -------------- shall not be obligated to, designate from time to time, designate time Additional Accounts to be included as Accounts so long as after giving effect to such addition not more than 20% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquentAccounts.
(c) Seller agrees The Transferors agree that any such transfers of Receivables from Additional Accounts shall be transferred by Seller to the Issuer under Section 2.6(a), subsection 2.06(a) or (b) or (e) upon and -------------- --- --- subject to shall satisfy the following conditions:
(i) On or before the fifth tenth Business Day (the "Notice Date") prior to ----------- the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b)Account Closing Date, Seller the Transferors shall give the Owner Trustee and the ------------- --- Servicer written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) shall satisfy the applicable condition in accordance with Section 2.6(f) 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 Net 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 Net Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15;
(iii) On or prior to the Addition Additional Account Closing Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller the Transferors shall have ------------- --- delivered to the Owner Trustee a written Assignment Agreement assignment (including an acceptance by and the Owner Trustee shall have accepted such assignment on behalf of the Issuer Trust for the benefit of the NoteholdersInvestor Certificateholders and any Enhancement Provider) in substantially the form of Exhibit A B (the "Assignment --------- ---------- AgreementAssignment") and shall have clearly indicated in its books and records, including --------- the their respective computer files of the Receivables, that the Receivables created in connection with the Additional Accounts have been transferred by Seller to the Issuer; Trustee and the Servicer shall have delivered to the Owner Trustee a computer file or microfiche list containing 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 the Addition Date in respect of Additional Accounts added pursuant to Section ------- 2.6(a) or (b)Account Cut-Off Date, 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;
(iviii) Seller The Transferors shall be deemed to severally represent and warrant that (w) as of the Addition Date, Schedule 1 to the Assignment Agreement and the computer ---------- file or microfiche list delivered pursuant to Section 2.6(c) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date, (x) each Additional Account iswas, as of the Addition date of its selection (the "Additional Account Selection Date"), an Eligible Account, (y) no selection procedures reasonably believed by Seller the Transferors to be materially adverse to the interests of the Noteholders any Series of Investor Certificates or any Enhancement Provider were utilized in selecting the Additional Accounts from the available Eligible Accounts, Accounts in each Transferor's portfolio; and (z) as of the Addition Additional Account Closing Date, Seller no Transferor is not insolvent and or will not be rendered made insolvent by adding any the transfer of the Receivables of such Additional Account to any CycleAccounts;
(viv) Seller The Transferors shall be deemed to represent and warrant warrant, that, as of the Addition Additional Account Closing Date, the Assignment Agreement constitutes either (x) a valid transfer and assignment to the Issuer Trust of all right, title and interest of Seller in, the Transferors in and to and under the Receivables then existing and thereafter arising created in respect of the Additional Accounts, all monies due or to become due with respect thereto (including all Finance Charge Receivables)on and after the Additional Account Cut-Off Date, Recoveries and all proceeds of such Receivables and Insurance Proceeds relating theretoto the extent set forth in the UCC as in effect in the Relevant UCC State, and such property Receivables and all proceeds thereof will be owned by conveyed to the Issuer Trust free and clear of any Lien of any PersonPerson claiming through or under a Transferor or any of its Affiliates, except for (i) Liens permitted under Section 2.5(b)subsection 2.05(b) hereunder, (ii) the interest of Seller as -------------- the holder of the Seller Exchangeable Transferor Certificate and (iii) Seller's any right of the holder of the Exchangeable Transferor Certificate to receive interest accruing on, and investment earnings in with respect ofto, the Collection Account and any other account or any Series Account accounts maintained for the benefit of Certificateholders as provided in this Agreement and any Indenture Supplement, 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 IssuerTrustee on behalf of the Trust, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, and the proceeds thereof and Recoveries and Insurance Proceeds relating thereto to the extent set forth in the UCC as in effect in the Relevant UCC State upon the transfer conveyance of such Receivables to the IssuerTrust, and which will be enforceable with respect to the Receivables thereafter transferred created in respect of Additional Accounts, and the proceeds (to the extent set forth in the UCC as in effect in the Relevant UCC State) thereof and Insurance Proceeds relating thereto upon such transfercreation; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer Trust in such property, upon the filing of a financing statement statements as described in Section 2.1 2.01 with respect to such Additional Accounts and in ----------- the case of the such Receivables of Additional Accounts thereafter transferred created and the proceeds thereof, and Insurance Proceeds relating thereof to such Receivablesthe extent set forth in the UCC in effect in the Relevant UCC State, upon such transfercreation, the Issuer Trust shall have a first priority perfected security interest in such property, except for Liens permitted under Section 2.5(b), the interest of Seller as holder of the Seller -------------- Certificate 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 Supplementsubsection 2.05(b) hereunder;
(viv) Seller shall, on Each Transferor shall deliver to the Addition Date for Additional Accounts added pursuant Trustee (with a copy to Section 2.6(athe Rating Agencies) or (b), deliver a certificate of a Vice -------------- --- President or more senior officer an Officer's Certificate confirming the items set forth in paragraphs (ii), (iii), ) and (iv) above and (v) above; and ---- ----- ---- ---
(vii) Seller shallbelow and the Trustee may conclusively rely on such Officer's Certificate, on shall have no duty to make inquiries with regard to the Addition Date for Additional Accounts added pursuant matters set forth therein and shall incur no liability in so relying;
(vi) The Transferors shall deliver to Section 2.6(a) or (b), deliver the Trustee and each Rating Agency an Opinion of Counsel with -------------- --- respect to the Receivables in the Additional Accounts to the Owner Trustee substantially in the form of Part One of Exhibit C. ---------G; and
(dvii) Seller The Rating Agencies shall provide to each Rating Agency and to each Enhancement Provider prior written have received ten (10) Business Days' notice each time of such proposed addition of Additional Accounts; in the event that Additional Accounts are being added pursuant to Section 2.6(asubsection 2.06(b), the 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 a downgrade or (b). -------------- ---
(e) In addition to withdrawal of its then current rating of any outstanding Series of Investor Certificates; and, in the occasional designation event that the number of Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new Charge Account originated in the normal course of FCNB's business and assigned to an Included Cycle after the SMT Termination Date, and the Receivables in which are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to such billing cycle; provided, however, that such automatic inclusion and -------- ------- transfer shall not occur designated with respect to any such account if: (i) such account does not qualify as an Eligible Account, (ii) the inclusion in the Issuer three consecutive Due Periods would exceed 15% of the Receivables in such Account, if such number of 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 Seller shall have satisfied any ------------------ applicable condition to such addition), 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(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 Issuer, and (ii) shall deliver to the Owner 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 as of the end 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 monthyear, which computer file the Transferors 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 microfiche list shall be delivered to the Owner Trustee as confidential and proprietary and incorporated into and made a part withdrawal of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion then current rating of Additional Accounts added pursuant to Section 2.6(e) at any time.
(i) The Rating Agency Condition shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to the addition of Additional ----------- AccountsInvestor Certificates.
Appears in 1 contract
Samples: Master Pooling and Servicing Agreement (American Express Credit Account Master Trust)
Addition of Accounts. Receivables created in all Accounts established with Dealers which have purchased existing dealerships (aeach, a "Dealer Replacement Account") Ifshall be added automatically to the Trust. Subject to the limitations described herein, during any period of 30 consecutive days ending after the SMT Termination Date either (i) the average Aggregate Net Principal Transferor shall, on an ongoing basis, automatically add Receivables is less than the Minimum Aggregate Principal Receivables averaged for such period or (ii) the average Seller Amount is less than the Minimum Seller Amount averaged for such period, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but created in no event later than 10 Business Days thereafter) Seller shall designate additional Eligible new Accounts which do not constitute Dealer Replacement Accounts (each, a "Additional ---------- AccountsNew Account") to be included as Accounts and shall transfer the Receivables in such -------- Additional Accounts to the Issuer, in a sufficient amount so that (x) the average Aggregate Net Principal Receivables would at least equal the Minimum Aggregate Principal Receivables averaged for such 30-day period and (ii) the average Seller Amount would at least equal the Minimum Seller Amount averaged for such 30-day period would have, if the Receivables from such Additional Accounts had been transferred to the Issuer during such 30-day period. Each of the averages referred to in the preceding sentence shall be calculating by taking the sum of the specified amount at the end of each Business Day falling in that period and dividing by the number of Business Days falling in that period.
(b) In addition to its obligation under Section 2.6(a), Seller may, but -------------- shall not be obligated to, from time to time, designate Additional Accounts to be included as Accounts so long as after giving effect to such addition not more than 20% of the Principal Receivables, by outstanding balance, will be 30 or more days delinquent.
(c) Seller agrees that any Receivables from Additional Accounts shall be transferred by Seller to the Issuer under Section 2.6(a), (b) or (e) upon and -------------- --- --- Trust subject to the following conditions:
(i) On or before if either (a) on an annual basis, the fifth Business Day (percentage derived by dividing the "Notice Date") prior to ----------- the Addition Date in respect number of Additional New Accounts added pursuant to Section 2.6(a) the Trust during any fiscal year of the Transferor by the number of Accounts in the Trust at the beginning of such year exceeds 8% or (b)) on a quarterly basis, Seller shall give the Owner Trustee and percentage derived by dividing the ------------- --- Servicer written notice number of New Accounts added to the Trust during such calendar quarter by the number of Accounts in the Trust at the beginning of such calendar quarter exceeds 5%, then the Transferor may continue to add Receivables created in New Accounts to the Trust only if (x) if so provided in a Supplement, the Available Subordinated Amount is adjusted each Collection Period thereafter by the aggregate amount of Receivables in those New Accounts included in the Trust which New Accounts resulted in such percentage to exceed the specified percentages therein, or (y) the Transferor obtains a letter from each of the Rating Agencies that such Additional action will not result in a downgrade or withdrawal of the then current ratings assigned by each of them to the Investor Certificates of each Series;
(ii) if the annualized rate (averaged for a period of three consecutive Collection Periods) of (a) Defaulted Receivables minus Recoveries plus the repossession value of all Products repossessed during such period to (b) the beginning Pool Balance for the related Collection Period exceeds 7.5%, then the Transferor may continue to add Receivables created in any New Accounts will be included and specifying Dealer Replacement Accounts to the approximate Trust only if (x) if so provided in a Supplement, the Available Subordinated Amount is increased by the aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) shall satisfy the applicable condition in accordance with Section 2.6(f) 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 Net 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 Net Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15;
(iii) On or prior to the Addition Date, in respect of Additional Accounts 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 the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) in substantially the form of Exhibit A (the "Assignment --------- ---------- 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 Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number and by Receivable balance as of the Addition Date in respect of Additional Accounts 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 (w) as of the Addition Date, Schedule 1 to the Assignment Agreement and the computer ---------- file or microfiche list delivered pursuant to Section 2.6(c) is an accurate -------------- and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional New Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date, (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 from the available Eligible Dealer Replacement Accounts, and (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 be deemed to represent and warrant that, as of the Addition Date, 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 Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer free and clear of any Lien of any Person, except for (i) Liens permitted under Section 2.5(b), (ii) the interest of Seller as -------------- holder of the Seller Certificate 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 this Agreement and any Indenture Supplement, or (y) the Transferor obtains a grant letter from each of the Rating Agencies that such action will not result in a security interest in such property downgrade or withdrawal of the then current ratings assigned by each of them to the IssuerInvestor Certificates of each Series; and
(iii) if either (a) on an annual basis, which is enforceable with respect the percentage derived by dividing the number of New Accounts and Dealer Replacement Accounts added to then existing Receivables the Trust during any fiscal year of the Additional Accounts, all monies due or to become due with respect thereto, Transferor by the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon number of Accounts in the transfer Trust at the beginning of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer 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 of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such 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 interest of Seller as holder of the Seller -------------- Certificate 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) year exceeds 15% or (b)) on a quarterly basis, deliver a certificate the percentage derived by dividing the number of a Vice -------------- --- President or more senior officer confirming the items set forth in paragraphs (ii), (iii), (iv) New Accounts and (v) above; and ---- ----- ---- ---
(vii) Seller shall, on the Addition Date for Additional Dealer Replacement Accounts added pursuant to Section 2.6(a) or (b), deliver an Opinion of Counsel with -------------- --- respect to the Receivables Trust during such calendar quarter by the number of Accounts in the Additional Trust at the beginning of such calendar quarter exceeds 10%, then the Transferor may continue to add any Accounts to the Owner Trustee substantially Trust only if (x) if so provided in a Supplement, the form of Exhibit C. ---------
(d) Seller shall provide to 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 Available Subordinated Amount is increased by the occasional designation of Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new Charge Account originated in the normal course of FCNB's business and assigned to an Included Cycle after the SMT Termination Date, and the Receivables in which are purchased by Seller pursuant to the Receivables Purchase Agreement, shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the tenth Business Day following the end of the Monthly Period in which such account is assigned to such billing cycle; 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 Issuer aggregate amount of the Receivables in such Account, if such New 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 Seller shall have satisfied any ------------------ applicable condition to such addition)and Dealer Replacement Accounts, or (iiiy) Seller otherwise designates the Transferor obtains a letter from each of the Rating Agencies that such account as an account which is action will not result in a downgrade or withdrawal of the then current ratings assigned by each of them to be included as an Account pursuant to this Section 2.6(e). On or before the fifth Business Day Investor Certificates 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 Issuer, and (ii) shall deliver to the Owner 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 as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Owner Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at any timeSeries.
(i) The Rating Agency Condition shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in Section 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30. ------------------------
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to 1.30 Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) shall not be applicable to the addition of Additional ----------- Accounts.
Appears in 1 contract
Samples: Master Pooling and Servicing Agreement (Yamaha Motor Receivables Corp)
