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Exhibit 10.41
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FIRST CONSUMERS NATIONAL BANK,
Seller and Servicer,
and
THE BANK OF NEW YORK,
Trustee
on behalf of the Collateral Certificateholder
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COLLATERAL SERIES SUPPLEMENT
Dated as of March 1, 2001
to
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated as of February 1, 1999
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FIRST CONSUMERS MASTER TRUST
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TABLE OF CONTENTS
Page
SECTION 1. Designation.................................................................1
SECTION 2. Definitions.................................................................2
SECTION 3. Reassignment and Transfer Terms.............................................3
SECTION 4. Delivery and Payment for the Collateral Certificates........................3
SECTION 5. Form of Delivery of Collateral Certificates.................................3
SECTION 6. Article IV of Agreement.....................................................4
SECTION 7. Series Pay Out Events and Events of Default; Servicer Defaults..............4
SECTION 9. Successors and Assigns......................................................5
SECTION 10. Modification to and Ratification of Agreement...............................5
SECTION 11. Counterparts................................................................5
SECTION 12. Governing Law...............................................................5
EXHIBITS
Exhibit A Form of Collateral Certificate
COLLATERAL SERIES SUPPLEMENT dated as of March 1, 2001 (this "Series
Supplement"), among First Consumers National Bank, a national banking
association, as Seller and Servicer, and The Bank of New York (as
successor-in-interest to the corporate trust administration of Xxxxxx Trust and
Savings Bank), as Trustee under the Amended and Restated Pooling and Servicing
Agreement dated as of February 1, 1999 among Seller, the Servicer and the
Trustee (the "Agreement").
Section 6.12 of the Agreement provides, among other things, that
Seller and the Trustee may at any time and from time to time enter into a
supplement to the Agreement for the purpose of authorizing the delivery by
Seller to the Trustee for execution and authentication of one or more Series of
Investor Certificates.
Pursuant to this Series Supplement, Seller shall create a new Series
of Investor Certificates and shall specify the Principal Terms thereof and add
and amend certain provisions of the Agreement.
SECTION 1. Designation. There is hereby created a Series of Investor
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Certificates to be issued pursuant to the Agreement and this Series Supplement
to be known as the "Collateral Certificates." The Collateral Certificates will
be transferred by the Seller to First Consumers Credit Card Master Note Trust
(the "Note Trust") pursuant to a Transfer and Servicing Agreement dated as of
March 1, 2001 among the Seller, the Servicer and First Consumers Credit Card
Master Note Trust. The Note Trust will pledge the Collateral Certificates as
collateral for one or more series of notes (each, a "Note Series") to be issued
by the Note Trust pursuant to a Master Indenture dated as of March 1, 2001
between First Consumers Credit Card Master Note Trust, and The Bank of New York,
as indenture trustee, and one or more supplements to the Master Indenture (each,
an "Indenture Supplement" and, together with the Master Indenture referred to
above, the "Indenture"). The portions of the Collateral Certificates primarily
securing each Note Series shall be treated as separate Series (each, a
"Collateral Series") under the Agreement and this Series Supplement. Certain
terms pertaining to each Collateral Series will be defined in the applicable
Indenture Supplements (but are hereby incorporated by reference into this Series
Supplement). Unless and until the Trust has been terminated as permitted by
Section 3(b) of this Series Supplement: (a) each Indenture Supplement executed
and delivered by the Note Trust shall be deemed to supplement this Series
Supplement; (b) a new Collateral Series shall be deemed to be issued upon the
issuance of each Note Series and shall have the same designation (e.g., Series
2001-A) as the related Note Series; (c) the amounts payable as interest and
principal on such Collateral Series shall equal the aggregate of the amounts
payable on the related Note Series and shall be payable at the times and in the
amounts specified for such Note Series, (d) all amounts available and applied as
credit enhancement with respect to such Note Series shall be deemed to be
available and applied as credit enhancement with respect to such Collateral
Series; (e) all amounts payable to the Seller pursuant to the related Indenture
Supplement shall be deemed to be payable to the Seller pursuant to this Series
Supplement; and (f) the conditions defined in Section 6.12 of the Agreement for
issuance of new Series must be satisfied in connection with each issuance of a
Note Series;
provided, however, that the Opinion of Counsel required in clause (D) of the
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sixth sentence of Section 6.12(b) shall not be required to include the opinion
in subclause (4) of such clause (D) to the effect that the Collateral
Certificate established pursuant to this Series Supplement will be properly
characterized as debt.
SECTION 2. Definitions. If any term or provision contained herein
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shall conflict with or be inconsistent with any provision contained in the
Agreement, the terms and provisions of this Series Supplement shall govern. All
Article, Section or subsection references herein shall mean Article, Section or
subsections of the Agreement, as amended or supplemented by this Series
Supplement, except as otherwise provided herein. All capitalized terms not
otherwise defined herein are used herein as defined in the Agreement. Each
capitalized term defined herein shall relate only to the Collateral Certificates
and no other Series of Certificates issued by the Trust.
"Base Rate" is defined for each Collateral Series in the related Indenture
Supplement.
"Certificate" means a Collateral Certificate.
"Certificateholder" means the holder of record of any Certificate.
"Certificate Rate" means, for any Collateral Series, the average of the
interest rates applicable to the notes in the related Note Series, weighted by
the outstanding principal amount of the applicable classes of notes.
"Closing Date" means, for any Collateral Series, the "Closing Date" for the
related Note Series, as defined in the related Indenture Supplement.
"Collateral Certificates" is defined in Section 1 of this Series
Supplement.
"Collateral Series" is defined in Section 1 of this Series Supplement.
"Enhancement Provider" if applicable to any Collateral Series will be the
"Enhancement Provider" defined in the related Indenture Supplement.
"Finance Charge Shortfall" means, for any Collateral Series, the Finance
Charge Shortfall for the related Note Series, as defined in the related
Indenture Supplement.
"Indenture" is defined in Section 1 of this Series Supplement.
"Indenture Supplement" is defined in Section 1 of this Series Supplement.
"Initial Investor Amount" means, for any Collateral Series, the "Initial
Collateral Amount" of the related Note Series, as defined in the related
Indenture Supplement.
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"Investor Amount" means, for any Collateral Series, the "Collateral Amount"
of the related Note Series, as defined in the related Indenture Supplement.
"Minimum Seller Percentage" is defined for each Collateral Series in the
related Indenture Supplement.
"Net Recoveries" means, for any Collateral Series, with respect to any
Monthly Period, the excess, if any, of Recoveries collected during such Monthly
Period over the aggregate amount of Principal Receivables in Defaulted Accounts
charged off during such Monthly Period.
"Note Series" is defined in Section 1 of this Series Supplement.
"Note Trust" is defined in Section 1 of this Series Supplement.
"Principal Shortfall" means, for any Collateral Series, the Principal
Shortfall for the related Note Series, as defined in the related Indenture
Supplement.
"Rating Agency" means, for any Collateral Series, the rating agencies for
the related Note Series, as defined in the related Indenture Supplement.
"Series Accounts" means, for any Collateral Series, any bank accounts
established for the benefit of the related Note Series, as defined in the
related Indenture Supplement.
"Series Servicing Fee Percentage" is defined for each Collateral Series in
the related Indenture Supplement.
"Series Termination Date" means, for any Collateral Series, the final
maturity date for the related Note Series defined in the related Indenture
Supplement.
SECTION 3. Reassignment and Transfer Terms.
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(a) If the Servicer purchases, redeems or prepays any Note Series
pursuant to a clean-up call under the related Indenture Supplement, then the
related Collateral Series shall be deemed to have been retired.
(b) Once each Series of Certificates issued under the Agreement has
been retired, other than the Collateral Series and any other Series the
requisite holders of which have consented to the following transactions, the
holder of the Seller Interest shall have the option to transfer the Seller
Interest to the Note Trust, upon which transfer the Trust shall terminate, and
all of the Trust Assets shall be distributed to the Note Trust, as holder of all
of the beneficial interests in the Trust.
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SECTION 4. Delivery and Payment for the Collateral Certificates. The
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Trustee shall deliver the Collateral Certificates when authenticated in
accordance with Section 6.2.
SECTION 5. Form of Delivery of Collateral Certificates.
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(1) The Collateral Certificates shall be delivered as Definitive
Certificates.
(2) For purposes of voting with respect to any consent or other matter
under the Agreement or this Series Supplement, each class of notes included in
any Note Series shall be deemed to be a Class of Certificates in the related
Collateral Series, and the provisions for voting by beneficial owners of such
notes specified in the Indenture shall apply mutatis mutandis to voting under
the Agreement and this Series Supplement.
SECTION 6. Article IV of Agreement. (a) Sections 4.1, 4.2 and 4.3 of
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the Agreement shall read in their entirety as provided in the Agreement;
provided that notwithstanding anything to the contrary in the third sentence of
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Section 4.2(e), unless otherwise specified in an Indenture Supplement, on each
Distribution Date, a portion of interest and investment earnings (net of losses
and investment expenses) on funds on deposit in the Collection Account and the
Excess Funding Account shall be allocated to each Collateral Series based on the
Investor Percentage with respect to Finance Charge Receivables for such Series
and deposited in the Finance Charge Subaccount for that Series. The remainder of
Article IV of the Agreement shall read in its entirety as follows and shall be
applicable only to the Collateral Certificates:
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.1A Rights of Investor Certificateholders. The Collateral
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Certificates shall represent Undivided Interests in the Trust, consisting of the
right to receive (a) the related Allocation Percentage (as defined in the
related Indenture Supplement) of Collections, (b) funds on deposit in the
Collection Account and the Excess Funding Account allocable to the Collateral
Certificates and (c) Shared Principal Collections allocated to the Collateral
Certificates in accordance with subsection 4.3(g). Unless otherwise specified in
the related Indenture Supplement, each Collateral Series shall consist of a
single Class and shall not be senior or subordinated to any other Series. The
Seller Interest shall represent the ownership interest in the Trust Assets not
allocated to the Collateral Certificates or any other Series outstanding;
provided, however, the ownership interest represented by the Seller Interest and
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any other Series outstanding shall not represent any interest in the Collection
Account or any other Series Account, except as specifically provided in this
Article IV.
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Section 4.4 Allocations. The Servicer shall, prior to the close of business
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on the day any Collections are deposited in the Collection Account, allocate
from the Collection Account to the Collateral Series related to each Note Series
the amounts specified in the related Indenture Supplement, which shall be
deposited or otherwise applied as provided in such Indenture Supplement.
SECTION 7. Series Pay Out Events and Events of Default; Servicer
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Defaults. The Series Pay Out Events applicable to each Collateral Series shall
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be the Series Pay Out Events specified in the related Indenture Supplement, as
well as the Trust Pay Out Events specified in the Indenture. In addition, each
Note Series will have the benefit of applicable "Events of Default," as defined
in the Indenture. Upon the occurrence of an applicable Event of Default, the
Indenture Trustee shall have the right to foreclose upon a portion of the
Receivables, as defined (and subject to the limitations stated) in the Indenture
notwithstanding the continuing existence of the Trust. In addition, each
Servicer Default specified in the Master Indenture shall be an additional
Servicer Default for purposes of each Collateral Series.
SECTION 8. Successors and Assigns. This Series Supplement shall be
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binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 9. Modification to and Ratification of Agreement. For purposes
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of this Supplement and each Collateral Series:
(a) Section 2.6(a) shall be deemed to read as follows:
"(a) If either (i) on any Record Date, the Aggregate Principal Balance
is less than the Minimum Aggregate Principal Balance, or (ii) on
any day the Aggregate Principal Balance is less than the greater
of (A) the sum of the Aggregate Investor Amount, plus the Minimum
Seller Amount, in each case as of such date and (B) the sum of
the numerators used to determine the Investor Percentages for
Principal Collections for all Series outstanding on such date,
either Seller or Servicer (whichever shall first become aware of
the same) promptly shall give the Trustee written notice thereof,
and as soon as practicable (but in no event later than 10 days
thereafter) Seller shall designate additional Eligible Accounts
("Additional Accounts") to be included as Accounts and shall
transfer the Receivables in such Additional Accounts to the
Trust, in a sufficient amount so that (x) in the case of clause
(i) above, the Aggregate Principal Balance on such Record Date
would have, if the Receivables from such Additional Accounts had
been transferred to the Trust on or prior to such Record Date, at
least equalled the Minimum Aggregate Principal Balance and (y) in
the case of clause (ii) above, Aggregate Principal Balance on
such day would have, if the Receivables from such Additional
Accounts had been transferred to the Trust on or prior to such
day, at least equalled the greater
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of the amounts described in clauses (ii)(A) and (ii)(B) above. If
Seller fails to transfer Receivables as required by the preceding
sentence, then the Trustee shall give Seller immediate notice
thereof;" and
(b) Section 2.6(b) shall be deemed to read as follows:
"(b) In addition to its obligation under 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 no more than 20% of the Receivables, by outstanding
balance , will be 30 or more days delinquent."
(c) the following new clause (d) is added at the end of Section 2.7(b)(iii)
of the Agreement:
"and (d) Accounts (or administratively convenient groups of Accounts, such
as billing cycles) were chosen for removal randomly or otherwise not on a
basis intended to select particular accounts or groups of accounts for any
reason other than administrative convenience;"
(d) notwithstanding anything to the contrary in Section 3.2 of the
Agreement, the servicing fee payable with respect to each Note Series and the
related Collateral Series shall be solely as set forth in the related Indenture
Supplement;
(e) the second paragraph in Section 4.3(e) shall be deemed to read as
follows:
"In the event that the exclusion of the amount of a Credit
Adjustment from the calculation of the Seller Amount would cause the
Seller Amount to be less than the Minimum Seller Amount, Seller shall
make a deposit, no later than the Business Day following the Date of
Processing of such Credit Adjustment, in the Excess Funding Account in
immediately available funds, in an amount equal to the amount by which
the Minimum Seller Amount exceeds the Seller Amount, after giving
effect to such exclusion."
(f) Section 12.2(b),other than the first sentence thereof, shall not be
applicable to any Collateral Series.
In addition, to the extent that the terms of this Series Supplement
(directly or as supplemented by any Indenture Supplement) are deemed to be
inconsistent with the terms of the Agreement, this Series Supplement shall be
deemed to modify or amend the terms of the Agreement solely as applied to each
Collateral Series affected by any such inconsistency, as permitted by Section
6.12(c) of the Agreement. Otherwise, as supplemented by this Series Supplement
(and the various Indenture Supplements executed form time to time), the
Agreement
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is in all respects ratified and confirmed and the Agreement as so amended and
supplemented by this Series Supplement shall be read, taken and construed as one
and the same instrument.
SECTION 10. Counterparts. This Series Supplement may be executed in
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any number of counterparts, each of which so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one and the
same instrument.
SECTION 11. Governing Law. This Series Supplement shall be construed
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in accordance with the laws of the State of Illinois, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the parties have caused this Collateral Series
Supplement to be duly executed by their respective officers as of the day and
year first above written.
FIRST CONSUMERS NATIONAL BANK,
as Seller and Servicer
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Treasurer
THE BANK OF NEW YORK,
(successor-in-interest to the corporate trust
administration of Xxxxxx Trust and Savings Bank),
as Trustee
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Authorized Agent
First Consumers Credit Card Master Note Trust
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Collateral Series Supplement Signature Page
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EXHIBIT A
to
COLLATERAL SERIES SUPPLEMENT
FORM OF COLLATERAL CERTIFICATE
No. $
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FIRST CONSUMERS MASTER TRUST
COLLATERAL CERTIFICATE
Evidencing an undivided interest in a trust originated by First Consumers
National Bank ("FCNB"), the corpus of which consists of a portfolio of
receivables created under charge accounts originated by FCNB and other assets
and interests constituting the trust under the Pooling and Servicing Agreement
described below.
(Not an interest in or obligation of FCNB)
This certifies that FIRST CONSUMERS CREDIT CARD MASTER NOTE TRUST (the
"Certificateholder") is the registered owner of an undivided interest in a trust
(the "Trust"), the corpus of which consists of a portfolio of receivables (the
"Receivables") now existing or hereafter created under selected charge accounts
originated by FCNB and transferred to the Trust, all monies due or to become due
with respect thereto and the other assets and interests constituting the Trust
pursuant to an Amended and Restated Pooling and Servicing Agreement, dated as of
February 1, 1999, as amended and supplemented, including by the Collateral
Series Supplement, dated as of March 1, 2001 (collectively, the "Pooling and
Servicing Agreement"), among FCNB and The Bank of New York (as
successor-in-interest to the corporate trust administration of Xxxxxx Trust and
Savings Bank), as trustee.
THIS COLLATERAL CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN
INTEREST IN, FCNB, AND NONE OF THIS CERTIFICATE, THE RECEIVABLES AND THE
ACCOUNTS IS INSURED OR GUARANTEED BY THE FDIC OR ANY OTHER GOVERNMENTAL AGENCY.
THIS COLLATERAL CERTIFICATE IS LIMITED IN RIGHT OF PAYMENT TO CERTAIN
COLLECTIONS RESPECTING THE RECEIVABLES, ALL AS MORE SPECIFICALLY SET FORTH IN
THE POOLING AND SERVICING AGREEMENT.
To the extent not defined herein, capitalized terms used herein have
the meanings assigned in the Pooling and Servicing Agreement. This Collateral
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of its acceptance hereof assents and by which the
Certificateholder is bound.
This Certificate is one of a series of Certificates entitled "First
Consumers Master Trust Collateral Certificates" (the "Collateral Certificates"),
which represents an undivided interest in the Trust.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual or facsimile signature of a duly
authorized signatory, this Certificate shall not be entitled to any benefit
under the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Collateral Certificate
to be duly executed under its official seal.
THE BANK OF NEW YORK,
(successor-in-interest to the corporate trust
administration of Xxxxxx Trust and Savings Bank),
as Trustee
By:
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Vice President
Attested to:
By:
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Assistant Secretary
Date:
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Trustee's Certificate of Authentication
This is one of the Collateral Certificates referred to in the
within-mentioned Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
(successor-in-interest to the corporate trust
administration of Xxxxxx Trust and Savings Bank),
as Trustee
By:
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Authorized Officer
