EXHIBIT 4.1
PARTNERS FIRST RECEIVABLES FUNDING CORPORATION
TRANSFEROR,
PARTNERS FIRST NATIONAL BANK
SERVICER,
AND
THE BANK OF NEW YORK
TRUSTEE
PARTNERS FIRST CARD MASTER TRUST
POOLING AND SERVICING AGREEMENT
DATED AS OF DECEMBER __, 1997
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Definitions . . . . . . . . . . . . . . 1
Section 1.2 Other Definitional Provisions . . . . . 31
ARTICLE II
CONVEYANCE OF RECEIVABLES
. . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 2.1 Conveyance of Receivables . . . . . . . 33
Section 2.2 Acceptance by Trustee . . . . . . . . . 35
Section 2.3 Representations and Warranties of the
Transferor . . . . . . . . . . . . . . 36
Section 2.4 Representations and Warranties of the
Transferor Relating to the Agreement
and Any Supplement and the Receivables. 37
Section 2.5 Reassignment of Ineligible Receivables 39
Section 2.6 Reassignment of Certificateholders'
Interest in Trust Portfolio . . . . . 41
Section 2.7 Covenants of the Transferor . . . . . . 42
Section 2.8 Covenants of the Transferor with Respect
to Receivables Purchase Agreement . . . 45
Section 2.9 Addition of Accounts . . . . . . . . . 46
Section 2.10 Removal of Accounts and Participation
Interests . . . . . . . . . . . . . . 50
Section 2.11 Account Allocations . . . . . . . . . 52
Section 2.12 Discount Option . . . . . . . . . . . 53
Section 2.13 Premium Option . . . . . . . . . . . . 54
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
. . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 3.1 Acceptance of Appointment and Other Matters
Relating to the Servicer . . . . . . . 56
Section 3.2 Servicing Compensation . . . . . . . . 58
Section 3.3 Representations, Warranties and Covenants
of the Servicer . . . . . . . . . . . 58
Section 3.4 Reports and Records for the Trustee . . 62
Section 3.5 Annual Certificate of Servicer . . . . 62
Section 3.6 Annual Servicing Report of Independent
Public Accountants; Copies of Reports
Available . . . . . . . . . . . . . . 62
Section 3.7 Tax Treatment . . . . . . . . . . . . . 63
Section 3.8 Notices to the Bank . . . . . . . . . . 64
Section 3.9 Adjustments . . . . . . . . . . . . . . 64
Section 3.10 Reports to the Commission . . . . . . 65
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
. . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 4.1 Rights of Certificateholders . . . . . 66
Section 4.2 Establishment of Collection Account and
Special Funding Account . . . . . . . 66
Section 4.3 Collections and Allocations . . . . . . 69
Section 4.4 Shared Principal Collections . . . . . 71
Section 4.5 Additional Withdrawals from the
Collection Account . . . . . . . . . 71
Section 4.6 Allocation of Trust Assets to Series or
Groups . . . . . . . . . . . . . . . 71
ARTICLE V
DISTRIBUTIONS AND REPORTS TO
CERTIFICATEHOLDERS
. . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE VI
THE CERTIFICATES
. . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 6.1 The Certificates . . . . . . . . . . . 74
Section 6.2 Authentication of Certificates . . . . 74
Section 6.3 New Issuances . . . . . . . . . . . . . 75
Section 6.4. Registration of Transfer and Exchange of
Certificates . . . . . . . . . . . . 77
Section 6.5 Mutilated, Destroyed, Lost or Stolen
Certificates . . . . . . . . . . . . 80
Section 6.6 Persons Deemed Owners . . . . . . . . . 81
Section 6.7 Appointment of Paying Agent . . . . . . 82
Section 6.8 Access to List of Registered
Certificateholders' Names and
Addresses . . . . . . . . . . . . . . 82
Section 6.9 Authenticating Agent . . . . . . . . . 83
Section 6.10 Book-Entry Certificates . . . . . . . . 84
Section 6.11 Notices to Clearing Agency . . . . . . 85
Section 6.12 Definitive Certificates . . . . . . . 85
Section 6.13 Global Certificate; Exchange Date . . 86
Section 6.14 Meetings of Certificateholders . . . . 88
Section 6.15 Uncertificated Classes . . . . . . . . 91
ARTICLE VII
OTHER MATTERS RELATING TO THE TRANSFEROR
. . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 7.1 Liability of the Transferor . . . . . . 92
Section 7.2 Merger or Consolidation of, or
Assumption of the Obligations of, the
Transferor . . . . . . . . . . . . . . 92
Section 7.3 Limitations on Liability of the
Transferor . . . . . . . . . . . . . . 93
Section 7.4 Transferor Authorized to
execute Registration Statements and
Reports on Behalf of the Trust . . . 93
ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER
. . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Section 8.1 Liability of the Servicer . . . . . . . 95
Section 8.2 Merger or Consolidation of, or
Assumption of the Obligations of,
the Servicer . . . . . . . . . . . . . 95
Section 8.3 Limitation on Liability of the Servicer
and Others . . . . . . . . . . . . . 96
Section 8.4 Servicer Indemnification of the Trust
and the Trustee . . . . . . . . . . . 96
Section 8.5 Resignation of the Servicer . . . . . . 96
Section 8.6 Access to Certain Documentation and
Information Regarding the Receivables . 97
Section 8.7 Delegation of Duties . . . . . . . . . 98
Section 8.8 Examination of Records . . . . . . . . 98
ARTICLE IX
INSOLVENCY EVENTS
. . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 9.1 Rights upon the Occurrence of an
Insolvency Event . . . . . . . . . . 99
ARTICLE X
SERVICER DEFAULTS
. . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 10.1 Servicer Defaults . . . . . . . . . . 101
Section 10.2 Trustee To Act; Appointment of
Successor . . . . . . . . . . . . . . 104
Section 10.3 Notification to Certificateholders . . 106
ARTICLE XI
THE TRUSTEE
. . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Section 11.1 Duties of Trustee . . . . . . . . . . 107
Section 11.2 Certain Matters Affecting the Trustee 109
Section 11.3 Trustee Not Liable for Recitals in
Certificates . . . . . . . . . . . . 111
Section 11.4 Trustee May Own Certificates . . . . . 111
Section 11.5 The Servicer To Pay Trustee's Fees and
Expenses . . . . . . . . . . . . . . 111
Section 11.6 Eligibility Requirements for Trustee . 112
Section 11.7 Resignation or Removal of Trustee . . 112
Section 11.8 Successor Trustee . . . . . . . . . . 113
Section 11.9 Merger or Consolidation of Trustee . . 114
Section 11.10 Appointment of Co-Trustee or Separate
Trustee . . . . . . . . . . . . . . . 114
Section 11.11 Tax Returns . . . . . . . . . . . . . 115
Section 11.12 Trustee May Enforce Claims Without
Possession of Certificates . . . . . 116
Section 11.13 Suits for Enforcement . . . . . . . . 116
Section 11.14 Rights of Certificateholders To Direct
Trustee . . . . . . . . . . . . . . . 117
Section 11.15 Representations and Warranties of
Trustee . . . . . . . . . . . . . . . 117
Section 11.16 Maintenance of Office or Agency . . . 118
ARTICLE XII
TERMINATION
. . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Section 12.1 Termination of Trust . . . . . . . . . 119
Section 12.2 Final Distribution . . . . . . . . . . 119
Section 12.3 The Transferor's Termination Rights . 121
ARTICLE XIII
MISCELLANEOUS PROVISIONS
. . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Section 13.1 Amendment; Waiver of Past Defaults . . 122
Section 13.2 Protection of Right, Title and Interest
to Trust . . . . . . . . . . . . . . 124
Section 13.3 Limitation on Rights of
Certificateholders . . . . . . . . . 125
Section 13.4 Governing Law . . . . . . . . . . . . 126
Section 13.5 Notices; Payments . . . . . . . . . . 127
Section 13.6 Severability of Provisions . . . . . . 128
Section 13.7 Certificates Nonassessable and Fully
Paid . . . . . . . . . . . . . . . . 128
Section 13.8 Further Assurances . . . . . . . . . . 128
Section 13.9 Nonpetition Covenant . . . . . . . . . 128
Section 13.10 No Waiver; Cumulative Remedies . . . 128
Section 13.11 Counterparts . . . . . . . . . . . . 129
Section 13.12 Third-Party Beneficiaries . . . . . . 129
Section 13.13 Actions by Certificateholders . . . . 129
Section 13.14 Rule 144A Information . . . . . . . . 129
Section 13.15 Merger and Integration . . . . . . . 130
Section 13.16 Headings . . . . . . . . . . . . . . 130
EXHIBITS
Exhibit A Form of Transferor Certificate
Exhibit B Form of Assignment of Receivables in
Additional Accounts
Exhibit C Form of Reassignment of Receivables in
Removed Accounts
Exhibit D Form of Annual Servicer's Certificate
Exhibit E-1 Form of Opinion of Counsel with respect
to Amendments
Exhibit E-2 Form of Opinion of Counsel with respect
to Accounts
Exhibit E-3 Form of Annual Opinion of Counsel
Exhibit F-1 Form of Certificate of Foreign Clearing
Agency
Exhibit F-2 Form of Alternate Certificate to be
delivered to Foreign Clearing Agency
Exhibit F-3 Form of Certificate to be delivered to
Foreign Clearing Agency
Exhibit G-1 Private Placement Legend
Exhibit G-2 Representation Letter
Exhibit G-3 ERISA Legend
SCHEDULES
Schedule 1 List of Accounts [Deemed Incorporated]
POOLING AND SERVICING AGREEMENT dated as of
_________, 1997, among PARTNERS FIRST RECEIVABLES FUNDING
CORPORATION, a Delaware corporation, as Transferor;
PARTNERS FIRST NATIONAL BANK, a national banking
association, as Servicer; and THE BANK OF NEW YORK, a New
York banking corporation, as Trustee.
In consideration of the mutual agreements
herein contained, each party agrees as follows for the
benefit of the other parties, the Certificateholders and
any Series Enhancer (as defined below) to the extent
provided herein and in any Supplement:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in
this Agreement, the following words and phrases shall
have the following meanings, and the definitions of such
terms are applicable to the singular as well as the
plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
"Account" shall mean (a) each Initial
Account, (b) each Additional Account (but only from and
after the Addition Date with respect thereto), (c) each
Related Account, and (d) each Transferred Account, but
shall exclude (e) any Account all the Receivables in
which on and after the date of such action are: (i)
removed by the Transferor pursuant to Section 2.10, (ii)
reassigned to the Transferor pursuant to Section 2.5 or
(iii) assigned and transferred to the Servicer pursuant
to Section 3.3.
"Account Originator" shall mean the original
issuer of the credit card relating to an Account,
including the Bank, pursuant to a Credit Card Agreement
or a purchaser of such Account, in either case which has
sold such Account to the Bank.
"Account Originator Purchase Agreement" shall
mean the receivables purchase agreement between PFR and
an Account Originator, pursuant to which the Account
Originator sells Receivables to PFR.
"Account Owner" shall mean, the Bank or
another entity which is either the original issuer of the
credit card relating to an Account pursuant to a Credit
Card Agreement or an entity which has acquired such
Account, and in either case has sold the related
Receivables to PFR or the Transferor pursuant to a
Receivables Purchase Agreement.
"Accumulation Period" shall mean, with
respect to any Series, or any Class within a Series, a
period following the Revolving Period, which shall be the
controlled accumulation period, the principal
accumulation period, the rapid accumulation period, the
optional accumulation period, the limited accumulation
period or other accumulation period, in each case as
defined with respect to such Series in the related
Supplement.
"Act" shall mean the Securities Act of 1933,
as amended.
"Addition Date" shall mean (i) with respect
to Aggregate Addition Accounts, the date from and after
which such Aggregate Addition Accounts are to be included
as Accounts pursuant to subsection 2.9(a) or (b), (ii)
with respect to Participation Interests, the date from
and after which such Participation Interests are to be
included as assets of the Trust pursuant to subsection
2.9(a) or (b), and (iii) with respect to New Accounts,
the date on which such New Accounts are activated.
"Additional Account" shall mean each New
Account and each Aggregate Addition Account.
"Additional Cut-Off Date" shall mean (i) with
respect to Aggregate Addition Accounts or Participation
Interests, the date specified as such in the notice
delivered with respect thereto pursuant to subsection
2.9(c) and (ii) with respect to New Accounts, the later
of the dates on which such New Accounts are originated or
designated pursuant to subsection 2.9(d).
"Adverse Effect" shall mean, with respect to
any action, that such action will (a) result in the
occurrence of a Pay Out Event or a Reinvestment Event or
(b) materially adversely affect the amount or timing of
distributions to be made to the Investor
Certificateholders of any Series or Class pursuant to
this Agreement and the related Supplement.
"Affiliate" shall mean, with respect to any
specified Person, any other Person controlling or
controlled by or under common control with such specified
Person. For the purposes of this definition, "control"
shall mean the power to direct the management and
policies of a Person, directly or indirectly, whether
through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Aggregate Addition" shall mean the
designation of additional Eligible Accounts, other than
New Accounts, to be included as Accounts or of
Participation Interests to be included as Trust Assets
pursuant to subsection 2.9(a) or (b).
"Aggregate Addition Account" shall mean each
Eligible Account designated pursuant to subsection 2.9(a)
or (b) to be included as an Account and identified in the
computer file or microfiche list delivered to the Trustee
by the Transferor pursuant to Sections 2.1 and 2.9(h).
"Aggregate Invested Amount" shall mean, as of
any date of determination, the aggregate adjusted
Invested Amounts of all Series of Certificates issued and
outstanding on such date of determination.
"Agreement" shall mean this Pooling and
Servicing Agreement and all amendments hereof and
supplements hereto, including, with respect to any Series
or Class, the related Supplement.
"Amortization Period" shall mean, with
respect to any Series, or any Class within a Series, a
period following the Revolving Period, which shall be the
controlled amortization period, the principal
amortization period, the rapid amortization period, the
optional amortization period, the limited amortization
period or other amortization period, in each case as
defined with respect to such Series in the related
Supplement.
"Applicants" shall have the meaning specified
in Section 6.8.
"Appointment Date" shall have the meaning
specified in subsection 9.1(a).
"Assignment" shall have the meaning specified
in subsection 2.9(h).
"Authorized Newspaper" shall mean any
newspaper or newspapers of general circulation in the
Borough of Manhattan, The City of New York, printed in
the English language (and, with respect to any Series or
Class, if and so long as the Investor Certificates of
such Series are listed on the Luxembourg Stock Exchange
and such Exchange shall so require, in Luxembourg,
printed in any language satisfying the requirements of
such exchange) and customarily published on each business
day at such place, whether or not published on Saturdays,
Sundays or holidays.
"Average Rate" shall mean, as of any date of
determination and with respect to any Group, the
percentage equivalent of a decimal equal to the sum of
the amounts for each outstanding Series (or each Class
within any Series consisting of more than one Class)
within such Group obtained by multiplying (a) the
Certificate Rate (reduced to take into account the
payments received pursuant to any interest rate
agreements net of any amounts payable under such
agreements, or, if such agreements result in a net amount
payable, increased by such net amount payable) for such
Series or Class, by (b) a fraction, the numerator of
which is the aggregate unpaid principal amount of the
Investor Certificates of such Series or Class and the
denominator of which is the aggregate unpaid principal
amount of all Investor Certificates within such Group.
"Bank" shall mean Partners First National
Bank, a national banking association incorporated under
the laws of the United States.
"Bearer Certificates" shall have the meaning
specified in Section 6.1.
"Benefit Plan" shall have the meaning
specified in subsection 6.4(c).
"Book-Entry Certificates" shall mean
beneficial interests in the Investor Certificates,
ownership and transfers of which shall be made through
book entries by a Clearing Agency as described in Section
6.10.
"Business Day" shall mean any day other than
(a) a Saturday or Sunday or (b) any other day on which
national banking associations or state banking
institutions in [Delaware, __________, Massachusetts] or
any other State in which the principal executive offices
of the Bank or the Trustee, is located, are authorized or
obligated by law, executive order or governmental decree
to be closed or (c) for purposes of any particular
Series, any other day specified in the applicable Series
Supplement.
"Cash Advance Fees" shall mean cash advance
transaction fees and cash advance late fees, if any, as
specified in the Credit Card Agreement applicable to each
Account.
"PFRFC" shall mean Partners First Receivables
Funding Corporation, a Delaware corporation, and its
successors and permitted assigns.
"Cedel" shall mean Cedel Bank, societe
anonyme, a professional depository incorporated under the
laws of Luxembourg, and its successors.
"Certificate" shall mean any one of the
Investor Certificates or the Transferor Certificates.
"Certificateholder" or "Holder" shall mean an
Investor Certificateholder or a Person in whose name any
one of the Transferor Certificates is registered.
"Certificateholders' Interest" shall have the
meaning specified in Section 4.1. For purposes of
determining whether Holders of Investor Certificates
evidencing a specified percentage of the
Certificateholders' Interest have approved, consented or
otherwise agreed to any action hereunder, such
determination shall be made based on the percentage of
the Invested Amount represented by such Investor
Certificates.
"Certificate Owner" shall mean, with respect
to a Book-Entry Certificate, the Person who is the owner
of such Book-Entry Certificate, as reflected on the books
of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency
(directly as a Clearing Agency Participant or as an
indirect participant, in accordance with the rules of
such Clearing Agency).
"Certificate Rate" shall mean, as of any
particular date of determination and with respect to any
Series or Class, the certificate rate as of such date
specified therefor in the related Supplement.
"Certificate Register" shall mean the
register maintained pursuant to Section 6.4, providing
for the registration of the Registered Certificates and
transfers and exchanges thereof.
"Class" shall mean, with respect to any
Series, any one of the classes of Investor Certificates
of that Series.
"Clearing Agency" shall mean an organization
registered as a "clearing agency" pursuant to Section 17A
of the Securities Exchange Act of 1934, as amended, and
serving as clearing agency for a Series or Class of Book-
Entry Certificates.
"Clearing Agency Participant" shall mean a
broker, dealer, bank, other financial institution or
other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" shall mean, with respect to
any Series, the closing date specified in the related
Supplement.
"Code" shall mean the Internal Revenue Code
of 1986, as amended.
"Collection Account" shall have the meaning
specified in Section 4.2.
"Collections" shall mean all payments by or
on behalf of Obligors (including Insurance Proceeds)
received in respect of the Receivables, in the form of
cash, checks, wire transfers, electronic transfers, ATM
transfers or any other form of payment in accordance with
a Credit Card Agreement in effect from time to time and
all other amounts specified by this Agreement or any
Supplement as constituting Collections. As specified in
any Participation Interest Supplement or Series
Supplement, Collections shall include amounts received
with respect to Participation Interests. The aggregate
Recoveries received during any Monthly Period not in
excess of the aggregate amount of Principal Receivables
(other than Ineligible Receivables) which became
Defaulted Receivables during such Monthly Period shall be
treated as Collections of Principal Receivables. The
aggregate Recoveries received during any Monthly Period
in excess of the aggregate Principal Receivables (other
than Ineligible Receivables) which became Defaulted
Receivables during such Monthly Period shall be treated
as Collections of Finance Charge Receivables.
Collections with respect to any Monthly Period shall
include a portion, calculated pursuant to subsection
2.7(i), of Interchange paid to the Trust with respect to
such Monthly Period, to be applied as if such amount were
Collections of Finance Charge Receivables for all
purposes. Amounts withdrawn from the yield supplement
account or reserve account established with respect to
any Series and deposited in the Collection Account shall,
unless otherwise specified in the related Supplement, be
treated as Collections of Finance Charge Receivables.
"Common Depositary" shall mean, with respect
to the Investor Certificates of any Series or Class, the
common depositary for the respective accounts of any
Foreign Clearing Agencies or any successor thereto.
"Commission" shall mean the Securities and
Exchange Commission and its successors in interest.
"Companion Series" shall mean (i) each Series
which has been paired with another Series (which Series
may be prefunded or partially prefunded), such that the
reduction of the Invested Amount of such Series results
in the increase of the Invested Amount of such other
Series, as described in the related Supplements, and (ii)
such other Series.
"Corporate Trust Office" shall have the
meaning specified in Section 11.16.
"Coupon" shall have the meaning specified in
Section 6.1.
"Credit Card Agreement" shall mean, with
respect to a revolving credit card account, the
agreements between an Account Originator and the Obligor
governing the terms and conditions of such account, as
such agreements may be amended, modified or otherwise
changed from time to time and as distributed (including
any amendments and revisions thereto) to holders of such
account.
"Credit Card Guidelines" shall mean, as of
any date of determination, the respective policies and
procedures of the Bank, and Account Owner or Account
Originator, as such policies and procedures may be
amended from time to time, (a) relating to the operation
of its credit card business as of such date, which
generally are applicable to its portfolio of revolving
credit card accounts or, in the case of an Account Owner
that has only a portion of its portfolio subject to a
Receivables Purchase Agreement, applicable to such
portion of its portfolio, and in each case which are
consistent with prudent practice, including the policies
and procedures for determining the creditworthiness of
credit card customers and the extension of credit to
credit card customers, and (b) relating to the
maintenance of credit card accounts and collection of
credit card receivables.
"Date of Processing" shall mean, with respect
to any transaction or receipt of Collections, the date on
which such transaction is first recorded on the
Servicer's computer file of revolving credit card
accounts (without regard to the effective date of such
recordation).
"Defaulted Amount" shall mean, with respect
to any Monthly Period, an amount (which shall not be less
than zero) equal to (a) the excess, if any, of the amount
of Principal Receivables which became Defaulted
Receivables in such Monthly Period over the Recoveries
for such Monthly Period, minus (b) the amount of any
Defaulted Receivables of which the Transferor or the
Servicer became obligated to accept reassignment or
assignment in accordance with the terms of this Agreement
during such Monthly Period; provided, however, that, if
an Insolvency Event occurs with respect to the
Transferor, the amount of such Defaulted Receivables
which are subject to reassignment to the Transferor in
accordance with the terms of this Agreement shall not be
added to the sum so subtracted and, if any of the events
described in subsection 10.1(d) occur with respect to the
Servicer, the amount of such Defaulted Receivables which
are subject to reassignment or assignment to the Servicer
in accordance with the terms of this Agreement shall not
be added to the sum so subtracted.
"Defaulted Receivables" shall mean, with
respect to any Monthly Period, all Principal Receivables
which are charged off as uncollectible in such Monthly
Period in accordance with the Credit Card Guidelines and
the Servicer's customary and usual servicing procedures
for servicing revolving credit card accounts. A
Principal Receivable shall become a Defaulted Receivable
on the day on which such Principal Receivable is recorded
as charged-off on the Servicer's computer file of
revolving credit card accounts.
"Definitive Certificates" shall have the
meaning specified in Section 6.10.
"Definitive Euro-Certificates" shall have the
meaning specified in subsection 6.13(a).
"Deposit Date" shall mean each day on which
the Servicer deposits Collections in the Collection
Account.
"Depository Agreement" shall mean, with
respect to any Series or Class of Book-Entry
Certificates, the agreement among the Transferor, the
Trustee and the Clearing Agency.
"Determination Date" shall mean, unless
otherwise specified in the Supplement for a particular
Series, the third Business Day preceding the Distribution
Date in each Monthly Period.
"Discount Option Date" shall mean each date
on which a Discount Percentage designated by the
Transferor pursuant to Section 2.12 takes effect.
"Discount Option Receivables" shall have the
meaning specified in subsection 2.12(a). The aggregate
amount of Discount Option Receivables outstanding on any
Date of Processing occurring on or after the Discount
Option Date shall equal the sum of (a) the aggregate
Discount Option Receivables at the end of the prior Date
of Processing (which amount, prior to the Discount Option
Date, shall be zero) plus (b) any new Discount Option
Receivables created on such Date of Processing minus (c)
any Discount Option Receivables Collections received on
such Date of Processing. Discount Option Receivables
created on any Date of Processing shall mean the product
of the amount of any Principal Receivables created on
such Date of Processing (without giving effect to the
proviso in the definition of Principal Receivables) and
the Discount Percentage.
"Discount Option Receivable Collections"
shall mean on any Date of Processing occurring in any
Monthly Period succeeding the Monthly Period in which the
Discount Option Date occurs, the product of (a) a
fraction the numerator of which is the Discount Option
Receivables and the denominator of which is the sum of
the Principal Receivables and the Discount Option
Receivables in each case (for both the numerator and the
denominator) at the end of the preceding Monthly Period
and (b) Collections of Principal Receivables on such Date
of Processing (without giving effect to the proviso in
the definition of Principal Receivables).
"Discount Percentage" shall mean the
percentages, if any, designated by the Transferor
pursuant to subsection 2.12(a).
"Distribution Date" shall mean, with respect
to any Series, the date specified in the applicable
Supplement.
"Document Delivery Date" shall have the
meaning specified in subsection 2.9(g).
"Dollars", "$" or "U.S. $" shall mean United
States dollars.
"Eligible Account" shall mean a consumer
revolving credit card account, which, as of (i) the
Initial Cut Off Date, in the case of an Initial Account,
or (ii) as of the applicable Additional Cut Off Date, in
the case of an Additional Account:
(a) is a revolving credit card account in
existence and maintained by the applicable Account
Owner;
(b) is payable in Dollars;
(c) has a cardholder who has provided, as his
most recent billing address, an address located in the
United States or its territories or possessions or a
military address;
(d) except as provided below, has a
cardholder who has not been identified by the Servicer
in its computer files as being involved in a voluntary
or involuntary bankruptcy proceeding;
(e) has not been identified as an account
with respect to which the related card has been lost or
stolen or has a cardholder who has not been identified
by the Servicer in its computer files as being deceased;
(f) is not sold or pledged to any other party
except for any sale by an Account Originator to the Bank
or by an Account Owner to another Account Owner that has
entered into a Receivables Purchase Agreement;
(g) does not have outstanding receivables
which have been sold or pledged by the related Account
Originator or Account Owner to any party other than the
Bank, PFR or the Transferor pursuant to a Receivables
Purchase Agreement;
(h) except as provided below, does not have
any Receivables that are Defaulted Receivables;
(i) does not have any Receivables that have
been identified by the Servicer or the relevant Obligor
as having been incurred as a result of fraudulent use of
any related credit card;
(j) was created in accordance with the Credit
Card Guidelines of the applicable Account Owner or
Account Originator at the time of creation of such
account; and
(k) with respect to Additional Accounts, may,
lieu of satisfying the requirements of clauses (a)
through (j) above, be an account which shall have
satisfied the Rating Agency Condition.
Eligible Accounts may include Accounts, the
Receivables of which have been written off, or with
respect to which the Servicer believes the related
Obligor is bankrupt, in each case as of the Initial Cut-
Off Date, with respect to the Initial Accounts, and as of
the related Additional Cut-Off Date, with respect to
Additional Accounts; provided, that (a) the balance of
all Receivables included in such Accounts is reflected on
the books and records of such Seller (and is treated for
purposes of this Agreement) as "zero" and (b) charging
privileges with respect to all such Accounts have been
canceled in accordance with the relevant Credit Card
Guidelines.
"Eligible Deposit Account" shall mean either
(a) a segregated account with an Eligible Institution or
(b) a segregated trust account with the corporate trust
department of a depository institution organized under
the laws of the United States or any one of the states
thereof, including the District of Columbia (or any
domestic branch of a foreign bank), and acting as a
trustee for funds deposited in such account, so long as
any of the unsecured, unguaranteed senior debt securities
of such depository institution shall have a credit rating
from each Rating Agency in one of its generic credit
rating categories that signifies investment grade.
"Eligible Institution" shall mean any
depository institution (which may be the Trustee)
organized under the laws of the United States or any one
of the states thereof, including the District of Columbia
(or any domestic branch of a foreign bank), which
depository institution at all times (a) is a member of
the FDIC and (b) has (i) a long-term unsecured debt
rating acceptable to the Rating Agency or (ii) a
certificate of deposit rating acceptable to the Rating
Agency, except that no such rating will be required with
respect to an institution which maintains a trust fund in
a fully segregated trust account with the corporate trust
department of such institution; provided that such
institution is a member of the FDIC and maintains a
credit rating in one of the Rating Agency's generic
credit rating categories which signifies investment
grade. Notwithstanding the previous sentence, any
institution the appointment of which satisfies the Rating
Agency Condition shall be considered an Eligible
Institution. If so qualified, the Servicer may be
considered an Eligible Institution for the purposes of
this definition.
"Eligible Investments" shall mean negotiable
instruments or securities represented by instruments in
bearer or registered form, or, in the case of deposits
described below, deposit accounts held in the name of the
Trustee in trust for the benefit of the
Certificateholders, subject to the exclusive custody and
control of the Trustee and for which the Trustee has sole
signature authority, which evidence:
(a) obligations issued or fully guaranteed,
as to timely payment, by the United States of America or
any instrumentality or agency thereof when such
obligations are backed by the full faith and credit of
the United States of America;
(b) demand deposits, time deposits or
certificates of deposit (having original maturities of
no more than 365 days) of depository institutions or
trust companies incorporated under the laws of the
United States of America or any state thereof, including
the District of Columbia (or domestic branches of
foreign banks) and subject to supervision and
examination by federal or state banking or depository
institution authorities; provided that at the time of
the Trust's investment or contractual commitment to
invest therein, the depository institution or trust
company shall have the Highest Rating;
(c) commercial paper or other short-term
obligations having, at the time of the Trust's
investment or contractual commitment to invest therein,
the Highest Rating;
(d) demand deposits, time deposits and
certificates of deposit which are fully insured by the
FDIC having, at the time of the Trust's investment
therein, the Highest Rating;
(e) bankers' acceptances (having original
maturities of no more than 365 days) issued by any
depository institution or trust company referred to in
clause (b) above;
(f) money market funds having, at the time of
the Trust's investment therein, the Highest Rating
(including funds for which the Trustee or any of its
Affiliates is investment manager or advisor);
(g) time deposits other than as referred to
in clause (d) above, with a Person the commercial paper
of which has a credit rating satisfactory to the Rating
Agency;
(h) repurchase agreements transacted with
either
(i) an entity subject to the United
States federal bankruptcy code, provided that (A) the
repurchase agreement matures prior to the next
Distribution Date or is due on demand, (B) the Trustee
or a third party acting solely as agent for the Trustee
has possession of the collateral, (C) the Trustee on
behalf of the Trust has a perfected first priority
security interest in the collateral, (D) the market
value of the collateral is maintained at the requisite
collateral percentage of the obligation in accordance
with standards of the Rating Agencies, (E) the failure
to maintain the requisite collateral level will obligate
the Trustee to liquidate the collateral immediately, (F)
the securities subject to the repurchase agreement are
either obligations of, or fully guaranteed as to
principal and interest by, the United States of America
or any instrumentality or agency thereof, certificates
of deposit or bankers acceptances and (G) the securities
subject to the repurchase agreement are free and clear
of any third party lien or claim; or
(ii) a financial institution insured by
the FDIC, or any broker-dealer with "retail customers"
that is under the jurisdiction of the Securities
Investors Protection Corp. ("SIPC") provided that (A)
the market value of the collateral is maintained at the
requisite collateral percentage of the obligation in
accordance with the standards of the Rating Agencies,
(B) the Trustee or a third party (with a short-term debt
rating of P-1 or higher by Moody's) acting solely as
agent for the Trustee has possession of the collateral,
(C) the Trustee on behalf of the Trust has a perfected
first priority security interest in the collateral, (D)
the collateral is free and clear of third party liens
and, in the case of an SIPC broker, was not acquired
pursuant to a repurchase or reverse repurchase agreement
and (E) the failure to maintain the requisite collateral
percentage will obligate the Trustee to liquidate the
collateral; provided, however, that at the time of the
Trust's investment or contractual commitment to invest
in any repurchase agreement, the short-term deposits or
commercial paper rating of such entity or institution in
subsections (i) and (ii) shall have a credit rating not
lower than the Highest Rating; and
(i) any other investment of a type or rating
that satisfies the Rating Agency Condition.
"Eligible Receivable" shall mean each
Receivable, including, where applicable, the underlying
receivable:
(a) which has arisen in an Eligible Account;
(b) which was created in compliance in all
material respects with all Requirements of Law
applicable to the related Account Originator at the time
of the creation of such Receivable and which was created
pursuant to a Credit Card Agreement which complies in
all material respects with all Requirements of Law
applicable to the related Account Originator at the time
of the creation of such Receivable and the Requirements
of Law applicable to any subsequent Account Owner with
respect to such Receivable;
(c) with respect to which all material
consents, licenses, approvals or authorizations of, or
registrations or declarations with, any Governmental
Authority required to be obtained, effected or given in
connection with the creation of such Receivable or the
execution, delivery and performance by the applicable
Account Originator and any subsequent Account Owner of
the Credit Card Agreement pursuant to which such
Receivable was created, have been duly obtained,
effected or given and are in full force and effect;
(d) as to which at the time of the transfer
of such Receivable to the Trust, the Transferor or the
Trust will have good and marketable title thereto and
which itself is, and the underlying receivables are,
free and clear of all Liens (other than any Lien for
municipal or other local taxes if such taxes are not
then due and payable or if the Transferor is then
contesting the validity thereof in good faith by
appropriate proceedings and has set aside on its books
adequate reserves with respect thereto);
(e) which is the legal, valid and binding
payment obligation of the Obligor thereon enforceable
against such Obligor in accordance with its terms,
except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws, now or hereafter in
effect, affecting the enforcement of creditors' rights
in general and except as such enforceability may be
limited by general principles of equity (whether
considered in a suit at law or in equity);
(f) which, at the time of transfer to the
Trust, is not subject to any right of rescission,
setoff, counterclaim or any other defense (including
defenses arising out of violations of usury laws) of the
Obligor, other than defenses arising out of applicable
bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of
creditors' rights in general; and
(g) which constitutes either an "account" or
a "general intangible" under and as defined in Article 9
of the UCC as then in effect in the Relevant UCC State.
"Eligible Servicer" shall mean the Bank or
the Trustee or, if the Bank or the Trustee is not acting
as Servicer, an entity which, at the time of its
appointment as Servicer, (a) is servicing a portfolio of
revolving credit card accounts, (b) is legally qualified
and has the capacity to service the Accounts, (c) in the
sole determination of the Trustee, which determination
shall be conclusive and binding, has demonstrated the
ability to service professionally and competently a
portfolio of similar accounts in accordance with high
standards of skill and care, (d) is qualified to use the
software that is then being used to service the Accounts
or obtains the right to use or has its own software which
is adequate to perform its duties under this Agreement
and (e) has a net worth of at least $50,000,000 as of the
end of its most recent fiscal quarter or the obligations
of such entity have been guaranteed by an Affiliate
thereof which has a net worth of at least $50,000,000 as
of the end of its most recent fiscal quarter.
"Enhancement Agreement" shall mean any
agreement, instrument or document governing the terms of
any Series Enhancement or pursuant to which any Series
Enhancement is issued or outstanding.
"ERISA" shall mean the Employee Retirement
Income Security Act of 1974, as amended.
"Euroclear Operator" shall mean Xxxxxx
Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System.
"Excess Allocation Series" shall mean a
Series that, pursuant to the Supplement therefor, is
entitled to receive certain excess Collections of Finance
Charge Receivables, as more specifically set forth in
such Supplement.
"Exchange Date" shall mean, with respect to
any Series, any date that is after the related Closing
Date, in the case of Definitive Euro-Certificates in
registered form, or upon presentation of certification of
non-United States beneficial ownership (as described in
Section 6.13), in the case of Definitive
Euro-Certificates in bearer form.
"FAMIS" shall have the meaning specified in
Section 8.7.
"FDIC" shall mean the Federal Deposit
Insurance Corporation or any successor.
"FDR" shall have the meaning specified in
Section 8.7.
"Finance Charge Receivables" shall mean all
amounts billed to the Obligors on any Account in respect
of (i) all Periodic Rate Finance Charges, (ii) Cash
Advance Fees, (iii) annual membership fees and annual
service charges, (iv) Late Fees, (v) Overlimit Fees, (vi)
Returned Check Fees, (vii) Discount Option Receivables,
if any, (viii) any other fees with respect to the
Accounts designated by the Transferor at any time and
from time to time to be included as Finance Charge
Receivables; provided, however, that after the Premium
Option Date, Finance Charge Receivables on any Date of
Processing thereafter shall mean Finance Charge
Receivables as otherwise determined pursuant to this
definition minus the amount of Premium Option
Receivables. Finance Charge Receivables shall also
include (a) the interest portion of Participation
Interests as shall be determined pursuant to, and only if
so provided in, the applicable Participation Interest
Supplement or Series Supplement and (b) Interchange as
calculated pursuant to the Supplement for any Series.
Collections of Finance Charge Receivables shall include
the aggregate Recoveries received during any Monthly
Period in excess of the aggregate Principal Receivables
(other than Ineligible Receivables) which became
Defaulted Receivables during such Monthly Period.
"FIRREA" shall mean the Financial
Institutions Reform, Recovery and Enforcement Act of
1989, as amended.
"Fitch" shall mean Fitch Investors Service,
L.P. or its successors.
"Foreign Clearing Agency" shall mean Cedel
and the Euroclear Operator.
"Global Certificate" shall have the meaning
specified in subsection 6.13(a).
"Global Certificate Exchange Date" shall
mean, with respect to any Series or Class, a date
determined by the Manager with respect to such Series or
Class which is at least 40 days after the later of the
commencement of the offering of the related Investor
Certificates and the related Series Issuance Date.
"Governmental Authority" shall mean the
United States of America, any state or other political
subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Group" shall mean, with respect to any
Series, the group of Series, if any, in which the related
Supplement specifies such Series is to be included.
"Highest Rating" shall mean, with respect to
Moody's, P-1 or Aaa, and with respect to Standard &
Poor's, A-1+ or AAA, or any rating category that will not
cause a Ratings Event.
"Independent Director" shall have the meaning
specified in subsection 2.7(h)(vii).
"Ineligible Receivables" shall have the
meaning specified in subsection 2.5(a).
"Initial Account" shall mean each MasterCard
and VISA (1) consumer revolving credit card account which
is identified in the computer file or microfiche list
delivered to the Trustee by the Transferor pursuant to
Section 2.1 on the Initial Issuance Date.
"Initial Cut-Off Date" shall mean __________,
1997.
"Initial Issuance Date" shall mean
__________, 1997, the date the Transferor Certificate is
issued by the Trust and delivered to the Transferor.
-----------------
1 MasterCard and VISA are registered trademarks of
MasterCard International Incorporated and VISA USA,
Inc., respectively.
"Insolvency Event" shall have the meaning
specified in subsection 9.1(a).
"Insolvency Proceeds" shall have the meaning
specified in subsection 9.1(b).
"Institutional Investor" shall mean an
institutional accredited investor within the meaning of
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act of 1933, as amended.
"Insurance Proceeds" shall mean any amounts
received pursuant to the payment of benefits under any
credit life insurance policies, credit disability or
unemployment insurance policies covering any Obligor with
respect to Receivables under such Obligor's Account or
any other credit insurance policy designated by the
Transferor including, without limitation, credit
insurance coverage of Receivables on a pooled basis.
"Interchange" shall mean interchange fees
payable to an Account Owner, as partial compensation for
taking credit risk, absorbing fraud losses, and funding
receivables for the period prior to the initial billing.
Any reference in this Agreement or any Supplement to
Interchange shall refer only to the interchange fees that
are transferred by the Bank to PFR and by PFR to the
Transferor, which shall be an amount equal to the product
of (i) the percentage equivalent of a fraction, the
numerator of which is the amount of cardholder sales
charges in the Accounts of such Account Owner, and the
denominator of which is the total amount of cardholder
sales charges for all accounts in the Account Owner's
entire portfolio and (ii) the total interchange fees
payable to the Account Owner in respect of all of the
accounts in the Account Owner's entire portfolio.
Interchange for any Series shall be calculated pursuant
to the related Supplement.
"Invested Amount" shall mean, with respect to
any Series and for any date, an amount equal to the
invested amount or adjusted invested amount, as
applicable, specified in the related Supplement.
"Investment Company Act" shall mean the
Investment Company Act of 1940, as amended.
"Investor Certificateholder" shall mean the
Person in whose name a Registered Certificate is
registered in the Certificate Register or the bearer of
any Bearer Certificate (or the Global Certificate, as the
case may be) or Coupon.
"Investor Certificates" shall mean any
certificated or uncertificated interest in the Trust
designated as, or deemed to be, an "Investor Certificate"
in the related Supplement.
"Late Fees" shall have the meaning specified
in the Credit Card Agreement applicable to each Account
for late fees or similar terms.
"Lien" shall mean any mortgage, deed of
trust, pledge, hypothecation, assignment, deposit
arrangement, equity interest, encumbrance, lien
(statutory or other), preference, participation interest,
priority or other security agreement or preferential
arrangement of any kind or nature whatsoever, including
any conditional sale or other title retention agreement,
any financing lease having substantially the same
economic effect as any of the foregoing and the filing of
any financing statement under the UCC or comparable law
of any jurisdiction to evidence any of the foregoing;
provided, however, that any assignment permitted by
subsection 6.3(b) or Section 7.2 and the lien created by
this Agreement shall not be deemed to constitute a Lien.
"Manager" shall mean the lead manager,
manager or co-manager or Person performing a similar
function with respect to an offering of Definitive Euro-
Certificates.
"MasterCard" shall mean MasterCard
International Incorporated, and its successors in
interest.
"Monthly Period" shall mean, with respect to
each Distribution Date, unless otherwise provided in a
Supplement, the period from and including the first day
of the preceding calendar month to and including the last
day of such calendar month; provided, however, that
unless otherwise specified in the related Supplement, the
initial Monthly Period with respect to any Series will
commence on the Closing Date with respect to such Series.
"Monthly Servicing Fee" shall have the
meaning specified in Section 3.2.
"Moody's" shall mean Xxxxx'x Investors
Service, Inc., or its successor.
"New Account" shall mean each MasterCard and
VISA consumer revolving credit card account established
pursuant to a Credit Card Agreement, which account is
designated pursuant to subsection 2.9(d) to be included
as an Account and is identified in the computer file or
microfiche list delivered to the Trustee by the
Transferor pursuant to Section 2.1 and subsection 2.9(h).
"Notices" shall have the meaning specified in
subsection 13.5(a).
"Obligor" shall mean, with respect to any
Account, the Person or Persons obligated to make payments
with respect to such Account, including any guarantor
thereof, but excluding any merchant.
"Officer's Certificate" shall mean, unless
otherwise specified in this Agreement, a certificate
delivered to the Trustee signed by the President, any
Vice President or the Treasurer of the Transferor or the
Servicer, as the case may be, or by the President, any
Vice President or the financial controller (or an officer
holding an office with equivalent or more senior
responsibilities or, in the case of the Servicer, a
Servicing Officer, and, in the case of the Transferor,
any executive of the Transferor designated in writing by
a Vice President or more senior officer of the Transferor
for this purpose) of a Successor Servicer.
"Opinion of Counsel" shall mean a written
opinion of counsel, who may be counsel for, or an
employee of, the Person providing the opinion and who
shall be reasonably acceptable to the Trustee.
"Overlimit Fees" shall have the meaning
specified in the Credit Card Agreement applicable to each
Account for overlimit fees or similar terms if such fees
are provided for with respect to such Account.
"Participation Interest Supplement" shall
mean a Supplement entered into pursuant to subsection
2.9(a)(ii) or (b) in connection with the conveyance of
Participation Interests to the Trust.
"Participation Interests" shall have the
meaning specified in subsection 2.9(a)(ii).
"Paying Agent" shall mean any paying agent
appointed pursuant to Section 6.7 and shall initially be
the Trustee; provided, that if the Supplement for a
Series so provides, a separate or additional Paying Agent
may be appointed with respect to such Series.
"Pay Out Event" shall mean, with respect to
any Series, any Pay Out Event specified in the related
Supplement.
"Periodic Rate Finance Charges" shall have
the meaning specified in the Credit Card Agreement
applicable to each Account for finance charges (due to
periodic rate) or any similar term.
"Person" shall mean any legal person,
including any individual, corporation, limited liability
company, partnership, joint venture, association, joint-
stock company, trust, unincorporated organization,
governmental entity or other entity of similar nature.
"PFR" shall mean Partners First Receivables,
LLC., a Delaware limited liability company and a wholly
owned subsidiary of Partners First Holdings, LLC., a
Delaware limited liability company.
"Portfolio Yield" shall mean with respect to
the Trust as a whole and, with respect to any Monthly
Period, the annualized percentage equivalent of a
fraction (a) the numerator of which is the aggregate of
the sum of the Series Allocable Finance Charge
Collections for all Series during the immediately
preceding Monthly Period calculated on a cash basis,
after subtracting therefrom the Series Allocable
Defaulted Amounts for all Series with respect to such
Monthly Period and (b) the denominator of which is the
total amount of Principal Receivables plus (without
duplication) the then outstanding principal amount of any
Participation Interests conveyed to the Trust, plus the
amount of funds on deposit in the Special Funding
Account, in each case, as of the last day of the
immediately preceding Monthly Period; provided that, with
respect to any Monthly Period in which an Aggregate
Addition occurs or a removal of Accounts pursuant to
Section 2.10 occurs, the amount of Principal Receivables
and Participation Interests referred to in clause (b)
shall be the average amount of Principal Receivables and
Participation Interests in the Trust on each Business Day
during such Monthly Period based upon the assumptions
that (1) the aggregate amount of Principal Receivables in
the Trust plus the then outstanding principal amount of
any Participation Interests conveyed to the Trust at the
end of the day on the last day of the prior Monthly
Period is the aggregate amount of Principal Receivables
and Participation Interests in the Trust on each Business
Day of the period from and including the first day of
such Monthly Period to but excluding the related Addition
Date or Removal Date and (2) the aggregate amount of
Principal Receivables in the Trust plus the then
outstanding principal amount of any Participation
Interests conveyed to the Trust at the end of the day on
the related Addition Date or Removal Date is the
aggregate amount of Principal Receivables and
Participation Interests in the Trust on each Business Day
of the period from and including the related Addition
Date or Removal Date to and including the last day of
such Monthly Period.
"Pre-Funding Account" shall mean, with
respect to any Series, the account, if any, specified in
the related Supplement.
"Premium Option Date" shall mean each date on
which a Premium Percentage designated by the Transferor
pursuant to Section 2.13 takes effect.
"Premium Option Receivables" shall have the
meaning specified in Section 2.13. The aggregate amount
of Premium Option Receivables outstanding on any Date of
Processing occurring on or after the Premium Option Date
shall equal the sum of (a) the aggregate Premium Option
Receivables at the end of the prior Date of Processing
(which amount, prior to the Premium Option Date, shall be
zero) plus (b) any new Premium Option Receivables created
on such Date of Processing minus (c) any Premium Option
Receivables Collections received on such Date of
Processing. Premium Option Receivables created on any
Date of Processing shall mean the product of the amount
of any Finance Charge Receivables created on such Date of
Processing and the Premium Percentage.
"Premium Option Receivable Collections" shall
mean on any Date of Processing occurring in any Monthly
Period succeeding the Monthly Period in which the Premium
Option Date occurs, the product of (a) a fraction the
numerator of which is the Premium Option Receivables and
the denominator of which is the sum of the Finance Charge
Receivables and the Premium Option Receivables in each
case (for both the numerator and the denominator) at the
end of the preceding Monthly Period and (b) Collections
of Finance Charge Receivables on such Date of Processing.
"Premium Percentage" shall mean the
percentages, if any, designated by the Transferor
pursuant to Section 2.13.
"Principal Allocation Percentage" shall mean,
with respect to any Series, the percentage specified in
the related Supplement.
"Principal Funding Account" shall mean, with
respect to any Series, the account, if any, specified in
the related Supplement.
"Principal Receivables" shall mean all
Receivables other than Finance Charge Receivables or
Defaulted Receivables. Principal Receivables shall
include the principal portion of Participation Interests
as shall be determined pursuant to, and only if so
provided in, the applicable Participation Interest
Supplement or Series Supplement. Collections of
Principal Receivables also shall include the aggregate
Recoveries with respect to each Monthly Period not in
excess of the aggregate amount of Principal Receivables
(other than Ineligible Receivables) which became
Defaulted Receivables during such Monthly Period. In
calculating the aggregate amount of Principal Receivables
on any day, the amount of Principal Receivables shall be
reduced by the aggregate amount of credit balances in the
Accounts on such day. Any Principal Receivables which
the Transferor is unable to transfer as provided in
Section 2.11 shall not be included in calculating the
amount of Principal Receivables.
"Principal Sharing Series" shall mean a
Series that, pursuant to the Supplement therefor, is
entitled to receive Shared Principal Collections.
"Principal Shortfalls" shall have the meaning
specified in Section 4.4.
"Principal Terms" shall mean, with respect to
any Series, (i) the name or designation; (ii) the initial
principal amount (or method for calculating such amount),
the Invested Amount, the Series Invested Amount and the
Required Series Transferor Amount, (iii) the Certificate
Rate (or method for the determination thereof); (iv) the
payment date or dates and the date or dates from which
interest shall accrue; (v) the method for allocating
Collections to Investor Certificateholders; (vi) the
designation of any Series Accounts and the terms
governing the operation of any such Series Accounts;
(vii) the Servicing Fee; (viii) the terms of any form of
Series Enhancements with respect thereto; (ix) the terms
on which the Investor Certificates of such Series may be
exchanged for Investor Certificates of another Series,
repurchased by the Transferor or remarketed to other
investors; (x) the Series Termination Date; (xi) the
number of Classes of Investor Certificates of such Series
and, if more than one Class, the rights and priorities of
each such Class; (xii) the extent to which the Investor
Certificates of such Series will be issuable in temporary
or permanent global form (and, in such case, the
depositary for such global certificate or certificates,
the terms and conditions, if any, upon which such global
certificate may be exchanged, in whole or in part, for
Definitive Certificates, and the manner in which any
interest payable on a temporary or global certificate
will be paid); (xiii) whether the Investor Certificates
of such Series may be issued in bearer form and any
limitations imposed thereon; (xiv) the priority of such
Series with respect to any other Series; (xv) whether
such Series will be part of a Group; (xvi) whether such
Series will be a Principal Sharing Series, (xvii) whether
such Series will be an Excess Allocation Series, (xviii)
the Distribution Date for such Series, and (xix) any
other terms of such Series.
"Rating Agency" shall mean, with respect to
any outstanding Series or Class, each rating agency, as
specified in the applicable Supplement, selected by the
Transferor to rate the Investor Certificates of such
Series or Class.
"Rating Agency Condition" shall mean, with
respect to any action, that each Rating Agency shall have
notified the Transferor, the Servicer and the Trustee in
writing that such action will not result in a reduction
or withdrawal of the then existing rating of any
outstanding Series or Class with respect to which it is a
Rating Agency.
"Ratings Event" with respect to any Class of
any outstanding Series of Investor Certificates rated by
a Rating Agency, shall mean a reduction or withdrawal of
the rating of any such Class by a Rating Agency.
"Reassignment" shall have the meaning
specified in Section 2.10.
"Receivables" shall mean all amounts shown on
the Servicer's records as amounts payable by Obligors on
any Account from time to time, including amounts owing
for purchases of goods and services, cash advances and
Finance Charge Receivables. Receivables which become
Defaulted Receivables will cease to be included as
Receivables as of the day on which they become Defaulted
Receivables. A Receivable shall be deemed to have been
created at the end of the Date of Processing of such
Receivable.
"Receivables Purchase Agreement" shall mean,
as applicable, the receivables purchase agreement between
PFR and the Transferor, dated as of _____ __, 1997, as
amended from time to time in accordance with the terms
thereof, and any receivables purchase agreement entered
into by the Transferor and an Account Owner in the
future; provided, that (A) the Rating Agency Condition is
satisfied with respect to such receivables purchase
agreement and (B) the Transferor shall have delivered to
the Trustee an Officer's Certificate to the effect that
such officer reasonably believes that the execution and
delivery of such receivables purchase agreement will not
have an Adverse Effect.
"Record Date" shall mean, with respect to any
Distribution Date, the last day of the calendar month
immediately preceding such Distribution Date unless
otherwise specified for a Series in the applicable
Supplement.
"Recoveries" shall mean all amounts received
(net of out-of-pocket costs of collection) including
Insurance Proceeds, with respect to Defaulted
Receivables, including the net proceeds of any sale of
such Defaulted Receivables by the Transferor.
"Registered Certificateholder" shall mean the
Holder of a Registered Certificate.
"Registered Certificates" shall have the
meaning specified in Section 6.1.
"Reinvestment Event" shall mean, if
applicable with respect to any Series, any Reinvestment
Event specified in the related Supplement.
"Related Account" shall mean an Account with
respect to which a new credit account number has been
issued by the applicable Account Owner or Servicer or the
Transferor under circumstances resulting from a lost or
stolen credit card and not requiring standard application
and credit evaluation procedures under the Credit Card
Guidelines.
"Relevant UCC State" shall mean each
jurisdiction in which the filing of a UCC financing
statement is necessary to evidence the security interest
of the Trustee established under this Agreement.
"Removal Date" shall have the meaning
specified in Section 2.10.
"Removed Accounts" shall have the meaning
specified in Section 2.10.
"Removed Participation Interests" shall have
the meaning specified in Section 2.10.
"Required Designation Date" shall have the
meaning specified in subsection 2.9(a).
"Required Minimum Principal Balance" shall
mean, with respect to any date, (a) the sum of the
numerators used in the Principal Allocation Percentage
for each Series outstanding on such date minus (b) the
Special Funding Amount minus (c) the amount on deposit in
the Principal Funding Account for each Series outstanding
on such date minus (d) the amount on deposit in the Pre-
Funding Account for each Series outstanding on such date.
"Required Transferor Amount" shall mean, with
respect to any date, the sum of the Series Required
Transferor Amounts for all Series outstanding on such
date.
"Requirements of Law" shall mean any law,
treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, whether Federal,
state or local (including usury laws, the Federal Truth
in Lending Act and Regulation B and Regulation Z of the
Board of Governors of the Federal Reserve System), and,
when used with respect to any Person, the certificate of
incorporation and by-laws or other organizational or
governing documents of such Person.
"Responsible Officer" shall mean, when used
with respect to the Trustee, any officer within the
Corporate Trust Office of the Trustee including any vice
president, assistant vice president, assistant treasurer,
assistant secretary, trust officer or any other officer
of the Trustee customarily performing functions similar
to those performed by the persons who at the time shall
be such officers or to whom any corporate trust matter is
referred at the Corporate Trust Office because of such
officer's knowledge of and familiarity with the
particular subject.
"Returned Check Fees" shall have the meaning
specified in the Credit Card Agreement applicable to each
Account for fees for returned checks or similar terms.
"Revolving Period" shall mean, with respect
to any Series, the period specified in the related
Supplement.
"Series" shall mean any series of Investor
Certificates issued pursuant to Section 6.3.
"Series Account" shall mean any deposit,
trust, escrow or similar account maintained for the
benefit of the Investor Certificateholders of any Series
or Class, as specified in any Supplement.
"Series Adjusted Invested Amount" shall mean,
with respect to any Series and for any Monthly Period,
the Series Invested Amount of such Series, after
subtracting therefrom the excess, if any, of the
cumulative amount (calculated in accordance with the
terms of the related Supplement) of investor charge-offs,
subordination of principal collections and funding the
investor default amount or another Series allocable to
the Invested Amount for such Series as of the last day of
the immediately preceding Monthly Period over the
aggregate reimbursement of such investor charge-offs,
subordination of principal collections and funding the
investor default amount for any other Class of Investor
Certificates of such Series or another Series as of such
last day, or such lesser amount as may be provided in the
Series Supplement for such Series.
"Series Allocable Defaulted Amount" shall
mean, with respect to any Series and for any Monthly
Period, the product of the Series Allocation Percentage
and the Defaulted Amount with respect to such Monthly
Period.
"Series Allocable Finance Charge Collections"
shall mean, with respect to any Series and for any
Monthly Period, the product of the Series Allocation
Percentage and the amount of Collections of Finance
Charge Receivables deposited in the Collection Account
for such Monthly Period.
"Series Allocable Principal Collections"
shall mean, with respect to any Series and for any
Monthly Period, the product of the Series Allocation
Percentage and the amount of Collections of Principal
Receivables deposited in the Collection Account for such
Monthly Period.
"Series Allocation Percentage" shall mean,
with respect to any Series and for any Monthly Period,
the percentage equivalent of a fraction, the numerator of
which is the Series Adjusted Invested Amount plus the
Series Required Transferor Amount as of the last day of
the immediately preceding Monthly Period and the
denominator of which is the Trust Adjusted Invested
Amount plus the sum of all Series Required Transferor
Amounts as of such last day.
"Series Enhancement" shall mean the rights
and benefits provided to the Trust or the Investor
Certificateholders of any Series or Class pursuant to any
letter of credit, surety bond, cash collateral account or
guaranty, collateral invested amount, spread account,
yield supplement account, guaranteed rate agreement,
maturity liquidity facility, tax protection agreement,
notional principal contract, options, hedging agreements,
insurance policy or other similar arrangement. The
subordination of any Series or Class to another Series or
Class shall be deemed to be a Series Enhancement.
"Series Enhancer" shall mean the Person or
Persons providing any Series Enhancement, other than
(except to the extent otherwise provided with respect to
any Series in the Supplement for such Series) the
Investor Certificateholders of any Series or Class which
is subordinated to another Series or Class.
"Series Invested Amount" shall have, with
respect to any Series, the meaning specified in the
related Supplement.
"Series Issuance Date" shall mean, with
respect to any Series, the date on which the Investor
Certificates of such Series are to be originally issued
in accordance with Section 6.3 and the related
Supplement.
"Series Required Transferor Amount" shall
have the meaning, with respect to any Series, specified
in the related Supplement.
"Series Termination Date" shall mean, with
respect to any Series, the termination date for such
Series specified in the related Supplement.
"Service Transfer" shall have the meaning
specified in Section 10.1.
"Servicer" shall mean the Bank, in its
capacity as Servicer pursuant to this Agreement, and,
after any Service Transfer, the Successor Servicer.
"Servicer Default" shall have the meaning
specified in Section 10.1.
"Servicer Interchange" shall have the meaning
specified in Section 3.2.
"Servicing Fee" shall have the meaning
specified in Section 3.2.
"Servicing Fee Rate" shall mean, with respect
to any Series, the servicing fee rate specified in the
related Supplement.
"Servicing Officer" shall mean any officer of
the Servicer or an attorney-in-fact of the Servicer who
in either case is involved in, or responsible for, the
administration and servicing of the Receivables and whose
name appears on a list of servicing officers furnished to
the Trustee by the Servicer, as such list may from time
to time be amended.
"Shared Principal Collections" shall have the
meaning specified in Section 4.4.
"Special Funding Account" shall have the
meaning set forth in Section 4.2.
"Special Funding Amount" shall mean the
amount on deposit in the Special Funding Account.
"Standard & Poor's" shall mean Standard &
Poor's Ratings Group or its successor.
"Successor Servicer" shall have the meaning
specified in subsection 10.2(a).
"Supplement" shall mean, with respect to any
Series, a supplement to this Agreement, executed and
delivered in connection with the original issuance of the
Investor Certificates of such Series pursuant to Section
6.3, and, with respect to any Participation Interest, an
amendment to this Agreement executed pursuant to
Section 13.1, and, in either case, including all
amendments thereof and supplements thereto.
"Supplemental Certificate" shall have the
meaning specified in subsection 6.3(b).
"Tax Opinion" shall mean, with respect to any
action, an Opinion of Counsel to the effect that, for
federal income tax purposes, (a) such action will not
adversely affect the tax characterization as debt of the
Investor Certificates of any outstanding Series or Class
that was characterized as debt at the time of its
issuance, (b) following such action the Trust will not be
deemed to be an association (or publicly traded
partnership) taxable as a corporation, (c) such action
will not cause or constitute an event in which gain or
loss would be recognized by any Investor
Certificateholder and (d) except as is otherwise provided
in a Supplement, in the case of subsection 6.3(b)(vi),
the Investor Certificates of the Series or class thereof
established pursuant to such Supplement will be properly
characterized as debt.
"Termination Notice" shall have the meaning
specified in subsection 10.1(d).
"Termination Proceeds" shall have the meaning
specified in subsection 12.2(c).
"Transfer Agent and Registrar" shall have the
meaning specified in Section 6.4.
"Transfer Date" shall mean the Business Day
immediately preceding each Distribution Date.
"Transfer Restriction Event" shall have the
meaning specified in Section 2.11.
"Transferor" shall mean Partners First
Receivables Funding Corporation, a wholly owned special
purpose subsidiary of Partners First Receivables, LLC and
incorporated in the State of Delaware, or its successor
under this Agreement.
"Transferor Amount" shall mean on any date of
determination an amount equal to the difference between
(I) the sum of (A) the aggregate balance of Principal
Receivables at the end of the day immediately prior to
such date of determination and (B) Special Funding Amount
at the end of the day immediately prior to such date of
determination and (C) the aggregate principal amounts on
deposit in the Principal Funding Account and Pre-Funding
Account for each Series minus (II) the Aggregate Invested
Amount at the end of such day.
"Transferor Certificate" shall mean the
certificate executed by Credit Card Receivables Funding
Corporation and authenticated by or on behalf of the
Trustee, substantially in the form of Exhibit A, as the
same may be modified in accordance with Exhibit A.
"Transferor Certificate Supplement" shall
have the meaning specified in subsection 6.3(b).
"Transferor Certificates" shall mean,
collectively, the Transferor Certificate and any
outstanding Supplemental Certificates.
"Transferor's Interest" shall have the
meaning specified in Section 4.1.
"Transferor's Percentage" shall have, with
respect to each Series, the meaning specified in the
related Supplement.
"Transferred Account" shall mean each account
into which an Account shall be transferred provided that
(i) such transfer was made in accordance with the Credit
Card Guidelines and (ii) such account can be traced or
identified as an account into which an Account has been
transferred.
"Trust" shall mean the Partners First Credit
Card Master Trust created by this Agreement.
"Trust Adjusted Invested Amount" shall mean,
with respect to any Monthly Period, the aggregate Series
Adjusted Invested Amounts as adjusted in any Supplement
for all outstanding Series for such Monthly Period.
"Trust Assets" shall have the meaning
specified in Section 2.1.
"Trustee" shall mean The Bank of New York, a
New York banking corporation, in its capacity as trustee
on behalf of the Trust, or its successor in interest, or
any successor trustee appointed as herein provided.
"UCC" shall mean the Uniform Commercial Code,
as amended from time to time, as in effect in any
specified jurisdiction.
"VISA" shall mean VISA USA, Inc., and its
successors in interest.
Section 1.2 Other Definitional Provisions.
(a) With respect to any Series, all terms
used herein and not otherwise defined herein shall have
meanings ascribed to them in the related Supplement.
(b) All terms defined in this Agreement shall
have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto unless
otherwise defined therein.
(c) As used in this Agreement and in any
certificate or other document made or delivered pursuant
hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document,
and accounting terms partly defined in this Agreement or
in any such certificate or other document to the extent
not defined, shall have the respective meanings given to
them under generally accepted accounting principles or
regulatory accounting principles, as applicable and as in
effect on the date of this Agreement. To the extent that
the definitions of accounting terms in this Agreement or
in any such certificate or other document are
inconsistent with the meanings of such terms under
generally accepted accounting principles or regulatory
accounting principles in the United States, the
definitions contained in this Agreement or in any such
certificate or other document shall control.
(d) The agreements, representations and
warranties of PFRFC and the Bank in this Agreement in
each of their respective capacities as Transferor and
Servicer shall be deemed to be the agreements,
representations and warranties of PFRFC and the Bank
solely in each such capacity for so long as PFRFC and the
Bank act in each such capacity under this Agreement.
(e) Any reference to each Rating Agency shall
only apply to any specific rating agency if such rating
agency is then rating any outstanding Series.
(f) Unless otherwise specified, references to
any amount as on deposit or outstanding on any particular
date shall mean such amount at the close of business on
such day.
(g) The words "hereof", "herein" and
"hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement;
references to any subsection, Section, Schedule or
Exhibit are references to subsections, Sections,
Schedules and Exhibits in or to this Agreement unless
otherwise specified; and the term "including" means
"including without limitation."
[END OF ARTICLE I]
ARTICLE II
CONVEYANCE OF RECEIVABLES
Section 2.1 Conveyance of Receivables. By
execution of this Agreement, PFRFC does hereby transfer,
assign, set over, and otherwise convey to the Trustee, on
behalf of the Trust, for the benefit of the
Certificateholders, without recourse except as provided
herein, all its right, title and interest in, to and
under (i) the Receivables existing at the close of
business on the Initial Cut-Off Date, in the case of
Receivables arising in the Initial Accounts, and on each
Additional Cut-Off Date, in the case of Receivables
arising in the Additional Accounts, and in each case
thereafter created from time to time until the
termination of the Trust, all Interchange and Recoveries
allocable to the Trust as provided herein, all monies due
or to become due and all amounts received with respect
thereto and all proceeds (including "proceeds" as defined
in the UCC) thereof and (ii) the Receivables Purchase
Agreement. Such property, together with the Collection
Account, the Series Accounts and the Special Funding
Account and all monies on deposit in any such account,
the rights of the Trustee on behalf of the Trust under
this Agreement and any Supplement, the property conveyed
to the Trustee on behalf of the Trust under any
Participation Interest Supplement, any Series Enhancement
and the right to receive Recoveries attributed to
cardholder charges for merchandise and services in the
Accounts shall constitute the assets of the Trust (the
"Trust Assets"). The foregoing does not constitute and
is not intended to result in the creation or assumption
by the Trust, the Trustee, any Investor Certificateholder
or any Series Enhancer of any obligation of any Account
Owner or the Transferor, the Servicer or any other Person
in connection with the Accounts or the Receivables or
under any agreement or instrument relating thereto,
including any obligation to Obligors, merchant banks,
merchants clearance systems, VISA, MasterCard or
insurers. The Obligors shall not be notified in
connection with the creation of the Trust of the
transfer, assignment, set-over and conveyance of the
Receivables to the Trust. The foregoing transfer,
assignment, set-over and conveyance to the Trust shall be
made to the Trustee, on behalf of the Trust, and each
reference in this Agreement to such transfer, assignment,
set-over and conveyance shall be construed accordingly.
The Transferor agrees to record and file, at
its own expense, financing statements (and continuation
statements when applicable) with respect to the
Receivables conveyed by the Transferor now existing and
hereafter created meeting the requirements of applicable
state law in such manner and in such jurisdictions as are
necessary to perfect, and maintain the perfection of, the
transfer and assignment of its interest in such
Receivables to the Trust, and to deliver a file stamped
copy of each such financing statement or other evidence
of such filing to the Trustee as soon as practicable
after the first Closing Date, in the case of Receivables
arising in the Initial Accounts, and (if any additional
filing is so necessary) as soon as practicable after the
applicable Addition Date, in the case of Receivables
arising in Additional Accounts. The Trustee shall be
under no obligation whatsoever to file such financing or
continuation statements or to make any other filing under
the UCC in connection with such transfer and assignment.
The Transferor further agrees, at its own
expense, (a) on or prior to (x) the first Closing Date,
in the case of the Initial Accounts, (y) the applicable
Addition Date, in the case of Additional Accounts, and
(z) the applicable Removal Date, in the case of Removed
Accounts, to indicate in the appropriate computer files
that Receivables created (or reassigned, in the case of
Removed Accounts) in connection with the Accounts have
been conveyed to the Trust pursuant to this Agreement for
the benefit of the Certificateholders (or conveyed to the
Transferor or its designee in accordance with Section
2.10, in the case of Removed Accounts) by including (or
deleting in the case of Removed Accounts) in such
computer files the code identifying each such Account and
(b) on or prior to (w) the first Closing Date, in the
case of the Initial Accounts, (x) the date that is five
Business Days after the applicable Addition Date, in the
case of Aggregate Additions, (y) the date that is 30 days
after the applicable Addition Date, in the case of New
Accounts, and (z) the date that is five Business Days
after the applicable Removal Date, in the case of Removed
Accounts, to deliver to the Trustee a computer file or
microfiche list containing a true and complete list of
all such Accounts specifying for each such Account, as of
the Initial Cut-Off Date, in the case of the Initial
Accounts, the applicable Additional Cut-Off Date in the
case of Additional Accounts, and the applicable Removal
Date in the case of Removed Accounts, its account number
and, other than in the case of New Accounts, the
aggregate amount outstanding in such Account and the
aggregate amount of Principal Receivables outstanding in
such Account. Each such file or list, as supplemented,
from time to time, to reflect Additional Accounts and
Removed Accounts, shall be marked as Schedule 1 to this
Agreement and is hereby incorporated into and made a part
of this Agreement. The Transferor further agrees not to
alter the code referenced in this paragraph with respect
to any Account during the term of this Agreement unless
and until such Account becomes a Removed Account.
The Transferor hereby grants and transfers to
the Trust, for the benefit of the Certificateholders, a
security interest in all of the Transferor's right, title
and interest in, to and under the Receivables and all
other Trust Assets, to secure a loan in an amount equal
to the unpaid principal amount of the Investor
Certificates issued hereunder or to be issued pursuant to
this Agreement and the interest accrued at the related
Certificate Rate, and agrees that this Agreement shall
constitute a security agreement under applicable law.
Section 2.2 Acceptance by Trustee.
(a) The Trustee hereby acknowledges its
acceptance on behalf of the Trust of all right, title and
interest to the property, now existing and hereafter
created, conveyed to the Trust pursuant to Section 2.1
and declares that it shall maintain such right, title and
interest, upon the trust herein set forth, for the
benefit of all Certificateholders. The Trustee further
acknowledges that, prior to or simultaneously with the
execution and delivery of this Agreement, the Transferor
delivered to the Trustee the computer file or microfiche
list relating to the Initial Accounts described in the
penultimate paragraph of Section 2.1. The Trustee shall
maintain a copy of Schedule 1, as delivered from time to
time, at the Corporate Trust Office.
(b) The Trustee hereby agrees not to disclose
to any Person any of the account numbers or other
information contained in the computer files or microfiche
lists marked as Schedule 1 and delivered to the Trustee,
from time to time, except (i) to a Successor Servicer or
as required by a Requirement of Law applicable to the
Trustee, (ii) in connection with the performance of the
Trustee's duties hereunder, (iii) in enforcing the rights
of Certificateholders or (iv) to bona fide creditors or
potential creditors of any Account Originator, Account
Owner, PFR or the Transferor for the limited purpose of
enabling any such creditor to identify Receivables or
Accounts subject to this Agreement or any Receivables
Purchase Agreement. The Trustee agrees to take such
measures as shall be reasonably requested by the
Transferor to protect and maintain the security and
confidentiality of such information and, in connection
therewith, shall allow the Transferor or its duly
authorized representatives to inspect the Trustee's
security and confidentiality arrangements as they
specifically relate to the administration of the Trust
from time to time during normal business hours upon prior
written notice. The Trustee shall provide the Transferor
with notice five Business Days prior to disclosure of any
information of the type described in this subsection
2.2(b).
(c) The Trustee shall have no power to
create, assume or incur indebtedness or other liabilities
in the name of the Trust other than as contemplated in
this Agreement.
Section 2.3 Representations and Warranties
of the Transferor. The Transferor hereby severally
represents and warrants to the Trustee (and agrees that
the Trustee may conclusively rely on each such
representation and warranty in accepting the Receivables
in trust and in authenticating the Certificates) that:
(a) Organization and Good Standing. The
Transferor is a corporation validly existing under the
laws of the jurisdiction of its organization or
incorporation and has, in all material respects, full
power and authority to own its properties and conduct its
business as presently owned or conducted, and to execute,
deliver and perform its obligations under this Agreement,
each Receivables Purchase Agreement and each applicable
Supplement and to execute and deliver to the Trustee the
Certificates.
(b) Due Qualification. The Transferor is
duly qualified to do business and is in good standing as
a foreign corporation and has obtained all necessary
licenses and approvals, in each jurisdiction in which
failure to so qualify or to obtain such licenses and
approvals would (i) render any Credit Card Agreement
relating to an Account or any Receivable conveyed to the
Trust by the Transferor unenforceable by the Transferor
or the Trust or (ii) have a material adverse effect on
the Investor Certificateholders.
(c) Due Authorization. The execution and
delivery of this Agreement, each Receivables Purchase
Agreement and each Supplement by the Transferor and the
execution and delivery to the Trustee of the Certificates
and the consummation by the Transferor of the
transactions provided for in this Agreement, each
Receivables Purchase Agreement and each Supplement have
been duly authorized by the Transferor by all necessary
corporate action on the part of the Transferor.
(d) No Conflict. The execution and delivery
by the Transferor of this Agreement, each Receivables
Purchase Agreement, each Supplement, and the
Certificates, the performance of the transactions
contemplated by this Agreement, each Receivables Purchase
Agreement and each Supplement and the fulfillment of the
terms hereof and thereof applicable to the Transferor,
will not conflict with or violate any Requirements of Law
applicable to the Transferor or conflict with, result in
any breach of any of the material terms and provisions
of, or constitute (with or without notice or lapse of
time or both) a material default under, any indenture,
contract, agreement, mortgage, deed of trust or other
instrument to which the Transferor is a party or by which
it or its properties are bound.
(e) No Proceedings. There are no proceedings
or investigations, pending or, to the best knowledge of
the Transferor, threatened against the Transferor before
any Governmental Authority (i) asserting the invalidity
of this Agreement, each Receivables Purchase Agreement,
each Supplement or the Certificates, (ii) seeking to
prevent the issuance of any of the Certificates or the
consummation of any of the transactions contemplated by
this Agreement, each Receivables Purchase Agreement, each
Supplement or the Certificates, (iii) seeking any
determination or ruling that, in the reasonable judgment
of the Transferor, would materially and adversely affect
the performance by the Transferor of its obligations
under this Agreement, each Receivables Purchase Agreement
or each Supplement, (iv) seeking any determination or
ruling that would materially and adversely affect the
validity or enforceability of this Agreement, each
Receivables Purchase Agreement, each Supplement or the
Certificates or (v) seeking to affect adversely the
income or franchise tax attributes of the Trust under the
United States Federal or any State income or franchise
tax systems.
(f) All Consents. All authorizations,
consents, orders or approvals of or registrations or
declarations with any Governmental Authority required to
be obtained, effected or given by the Transferor in
connection with the execution and delivery by the
Transferor of this Agreement, each Receivables Purchase
Agreement, each Supplement and the Certificates and the
performance of the transactions contemplated by this
Agreement and each Supplement by the Transferor have been
duly obtained, effected or given and are in full force
and effect.
Section 2.4 Representations and Warranties
of the Transferor Relating to the Agreement and Any
Supplement and the Receivables.
(a) Representations and Warranties. The
Transferor hereby severally represents and warrants to
the Trustee as of the Initial Issuance Date, each Closing
Date and, with respect to Additional Accounts, as of the
related Addition Date that:
(i) this Agreement, each Receivables
Purchase Agreement, each Supplement and, in the case of
Additional Accounts, the related Assignment, each
constitutes a legal, valid and binding obligation of the
Transferor enforceable against the Transferor in
accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws
affecting creditors' rights generally from time to time
in effect or general principles of equity;
(ii) as of the Initial Cut-Off Date and as
of the related Additional Cut-Off Date with respect to
Additional Accounts, Schedule 1 to this Agreement, as
supplemented to such date, is an accurate and complete
listing in all material respects of all the Accounts the
Receivables in which were transferred by the Transferor
as of the Initial Cut-Off Date or such Additional Cut-
Off Date, as the case may be, and the information
contained therein with respect to the identity of such
Accounts and the Receivables existing thereunder is true
and correct in all material respects as of the Initial
Cut-Off Date or such Additional Cut-Off Date, as the
case may be;
(iii) each Receivable conveyed to the Trust
by the Transferor has been conveyed to the Trust free
and clear of any Lien of any Person claiming through or
under the Transferor or any of its Affiliates (other
than Liens permitted under subsection 2.7(b)).
(iv) all authorizations, consents, orders or
approvals of or registrations or declarations with any
Governmental Authority required to be obtained, effected
or given by the Transferor in connection with the
conveyance by the Transferor of Receivables to the Trust
have been duly obtained, effected or given and are in
full force and effect;
(v) either this Agreement or, in the case of
Additional Accounts, the related Assignment constitutes
a valid sale, transfer and assignment to the Trust of
all right, title and interest of the Transferor in the
Receivables conveyed to the Trust and the proceeds
thereof and Recoveries and Interchange identified as
relating to the Receivables conveyed to the Trust or a
grant of a first priority perfected "security interest"
(as defined in the UCC) in such property to the Trust,
which, in the case of existing Receivables and the
proceeds thereof and said Recoveries and Interchange, is
enforceable upon execution and delivery of this
Agreement, or, with respect to then existing Receivables
in Additional Accounts, as of the applicable Addition
Date, and which will be enforceable with respect to such
Receivables hereafter and thereafter created and the
proceeds thereof upon such creation. Upon the filing of
the financing statements and, in the case of Receivables
hereafter created and the proceeds thereof, upon the
creation thereof, the Trust shall have a first priority
perfected security or ownership interest in such
property and proceeds;
(vi) on the Initial Cut-Off Date, each
Initial Account specified in Schedule 1 is an Eligible
Account and, on the applicable Additional Cut-Off Date,
each related Additional Account specified in Schedule 1
is an Eligible Account;
(vii) on the Initial Cut-Off Date, each
Receivable then existing and conveyed to the Trust is an
Eligible Receivable and, on the applicable Additional
Cut-Off Date, each Receivable contained in the related
Additional Accounts and conveyed to the Trust is an
Eligible Receivable; and
(viii) as of the date of the creation of any
new Receivable in an Account specified in a Receivables
Purchase Agreement, such Receivable is an Eligible
Receivable.
(b) Notice of Breach. The representations
and warranties set forth in Section 2.3, this Section 2.4
and subsection 2.9(f) shall survive the transfers and
assignments of the Receivables to the Trust and the
issuance of the Certificates. Upon discovery by the
Transferor, the Servicer or the Trustee of a breach of
any of the representations and warranties set forth in
Section 2.3, this Section 2.4 or subsection 2.9(f), the
party discovering such breach shall give notice to the
other parties and to each Series Enhancer within three
Business Days following such discovery; provided that the
failure to give notice within three Business Days does
not preclude subsequent notice.
Section 2.5 Reassignment of Ineligible
Receivables.
(a) Reassignment of Receivables. In the
event (i) any representation or warranty contained in
subsection 2.4(a)(ii), (iii), (iv), (vi), (vii) or (viii)
is not true and correct in any material respect as of the
date specified therein with respect to any Receivable or
the related Account and such breach has a material
adverse effect on the Certificateholders' Interest in any
Receivable (which determination shall be made without
regard to whether funds are then available pursuant to
any Series Enhancement) unless cured within 60 days (or
such longer period, not in excess of 120 days, as may be
agreed to by the Trustee and the Servicer) after the
earlier to occur of the discovery thereof by the
Transferor which conveyed such Receivables to the Trust
or receipt by the Transferor of written notice thereof
given by the Trustee or the Servicer, or (ii) it is so
provided in subsection 2.7(a) or 2.9(d)(iii) with respect
to any Receivables conveyed to the Trust by the
Transferor, then the Transferor shall accept reassignment
of the Certificateholders' Interest in all Receivables in
the related Account ("Ineligible Receivables") on the
terms and conditions set forth in paragraph (b) below.
(b) Price of Reassignment. The Servicer
shall deduct the portion of such Ineligible Receivables
reassigned to the Transferor which are Principal
Receivables from the aggregate amount of the Principal
Receivables used to calculate the Transferor Amount. In
the event that, following the exclusion of such Principal
Receivables from the calculation of the Transferor
Amount, the Transferor Amount would be less than the
Required Transferor Amount, not later than 1:00 P.M., New
York City time, on the first Distribution Date following
the Monthly Period in which such reassignment obligation
arises, the Transferor shall make a deposit into the
Special Funding Account in immediately available funds in
an amount equal to the amount by which the Transferor
Amount would be below the Required Transferor Amount (up
to the amount of such Principal Receivables).
Upon reassignment of any Ineligible
Receivable, the Trustee, on behalf of the Trust, shall
automatically and without further action be deemed to
transfer, assign, set over and otherwise convey to the
Transferor or its designee, without recourse,
representation or warranty, all the right, title and
interest of the Trust in and to such Ineligible
Receivable, all monies due or to become due and all
proceeds thereof and such reassigned Ineligible
Receivable shall be treated by the Trust as collected in
full as of the date on which it was transferred. The
obligation of the Transferor to accept reassignment of
any Ineligible Receivables conveyed to the Trust by the
Transferor, and to make the deposits, if any, required to
be made to the Special Funding Account as provided in
this Section, shall constitute the sole remedy respecting
the event giving rise to such obligation available to
Certificateholders (or the Trustee on behalf of the
Certificateholders) or any Series Enhancer.
Notwithstanding any other provision of this subsection
2.5(b), a reassignment of an Ineligible Receivable in
excess of the amount that would cause the Transferor
Amount to be less than the Required Transferor Amount
shall not occur if the Transferor fails to make any
deposit required by this subsection 2.5(b) with respect
to such Ineligible Receivable. The Trustee shall execute
such documents and instruments of transfer or assignment
and take such other actions as shall reasonably be
requested and provided by the Transferor to effect the
conveyance of such Ineligible Receivables pursuant to
this subsection 2.5(b), but only upon receipt of an
Officer's Certificate from the Transferor that states
that all conditions set forth in this Section 2.5 have
been satisfied.
Section 2.6 Reassignment of
Certificateholders' Interest in Trust Portfolio. In the
event any representation or warranty of the Transferor
set forth in subsection 2.3(a) or (c) or subsection
2.4(a)(i) or (v) is not true and correct in any material
respect and such breach has a material adverse effect on
the Certificateholders' Interest in Receivables conveyed
to the Trust by the Transferor or the availability of the
proceeds thereof to the Trust (which determination shall
be made without regard to whether funds are then
available pursuant to any Series Enhancement), then
either the Trustee or the Holders of Investor
Certificates evidencing not less than 50% of the
aggregate unpaid principal amount of all outstanding
Investor Certificates, by notice then given to the
Transferor and the Servicer (and to the Trustee if given
by the Investor Certificateholders), may direct the
Transferor to accept a reassignment of the
Certificateholders' Interest in the Receivables and any
Participation Interests conveyed to the Trust by the
Transferor if such breach and any material adverse effect
caused by such breach is not cured within 60 days of such
notice (or within such longer period, not in excess of
120 days, as may be specified in such notice), and upon
those conditions the Transferor shall be obligated to
accept such reassignment on the terms set forth below;
provided, however, that such Receivables will not be
reassigned to the Transferor if, on any day prior to the
end of such 60-day or longer period (i) the relevant
representation and warranty shall be true and correct in
all material respects as if made on such day and (ii) the
Transferor shall have delivered to the Trustee a
certificate of an authorized officer describing the
nature of such breach and the manner in which the
relevant representation and warranty has become true and
correct.
The Transferor shall deposit in the
Collection Account in immediately available funds not
later than 1:00 P.M., New York City time, on the first
Transfer Date following the Monthly Period in which such
reassignment obligation arises, in payment for such
reassignment, an amount equal to the sum of the amounts
specified therefor with respect to each outstanding
Series in the related Supplement. Notwithstanding
anything to the contrary in this Agreement, such amounts
shall be distributed to the Investor Certificateholders
on such Distribution Date in accordance with the terms of
each Supplement. If the Trustee or the Investor
Certificateholders give notice directing the Transferor
to accept a reassignment of the Certificateholders'
Interest in the Receivables as provided above, the
obligation of the Transferor to accept such reassignment
pursuant to this Section and to make the deposit required
to be made to the Collection Account as provided in this
paragraph shall constitute the sole remedy respecting an
event of the type specified in the first sentence of this
Section available to the Certificateholders (or the
Trustee on behalf of the Certificateholders) or any
Series Enhancer.
Section 2.7 Covenants of the Transferor.
The Transferor hereby covenants that:
(a) Receivables Not To Be Evidenced by
Promissory Notes. Except in connection with its
enforcement or collection of an Account, the Transferor
will take no action to cause any Receivable conveyed by
it to the Trust to be evidenced by any instrument (as
defined in the UCC) and if any such Receivable (or any
underlying receivable) is so evidenced as a result of any
action of the Transferor it shall be deemed to be an
Ineligible Receivable in accordance with Section 2.5(a)
and shall be reassigned to the Transferor in accordance
with Section 2.5(b).
(b) Security Interests. Except for the
conveyances hereunder, the Transferor will not sell,
pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist any Lien on, any
Receivable or Participation Interest conveyed by it to
the Trust, whether now existing or hereafter created, or
any interest therein, and the Transferor shall defend the
right, title and interest of the Trust in, to and under
the Receivables and any Participation Interest, whether
now existing or hereafter created, against all claims of
third parties claiming through or under the Transferor;
provided, however, that nothing in this Section 2.7(b)
shall prevent or be deemed to prohibit the Transferor
from suffering to exist upon any of the Receivables or
Participation Interests any Liens for taxes if such taxes
shall not at the time be due and payable or if the
Transferor shall currently be contesting the validity
thereof in good faith by appropriate proceedings and
shall have set aside on its books adequate reserves with
respect thereto. Notwithstanding the foregoing, nothing
in this Section 2.7(b) shall be construed to prevent or
be deemed to prohibit the transfer of the Transferor
Certificate and certain other rights of the Transferor in
accordance with the terms of this Agreement and any
related Supplement.
(c) Transferor's Interest. Except for the
conveyances hereunder, in connection with any transaction
permitted by Section 7.2 and Section 6.3 or any other
transaction in connection wit which the Rating Agency
Condition has been satisfied and the Transferor has
delivered to the Trustee a Tax Opinion, the Transferor
agrees not to transfer, sell, assign, exchange,
participate or pledge, hypothecate or otherwise convey or
grant a security interest in the Transferor's Interest
represented by the Transferor Certificate or any
Supplemental Certificate and any such attempted transfer,
assignment, exchange, conveyance, pledge, hypothecation,
grant or sale shall be void.
(d) Delivery of Collections or Recoveries.
In the event that the Transferor receives Collections or
Recoveries, the Transferor agrees to pay the Servicer all
such Collections and Recoveries as soon as practicable
after receipt thereof.
(e) Notice of Liens. The Transferor shall
notify the Trustee and each Series Enhancer promptly
after becoming aware of any Lien on any Receivable (or on
the underlying receivable) or Participation Interest
conveyed by it to the Trust other than the conveyances
hereunder and under each Receivables Purchase Agreement.
(f) Amendment of the Certificate of
Incorporation. The Transferor will not amend in any
material respect its Certificate of Incorporation without
providing the Rating Agency with notice no later than the
fifth Business Day prior to such amendment (unless the
right to such notice is waived by the Rating Agency) and
satisfying the Rating Agency Condition.
(g) Other Indebtedness. The Transferor shall
not incur any additional debt, unless the Rating Agency
is provided with notice no later than the fifth Business
Day prior to the incurrence of such additional debt
(unless the right to such notice is waived by the Rating
Agency) and the Rating Agency Condition is satisfied with
respect to the incurrence of such debt.
(h) Separate Corporate Existence. The
Transferor shall:
(i) maintain its corporate existence and
remain in good standing under the laws of the State of
Delaware;
(ii) observe all corporate procedures
required by its certificate of incorporation, its bylaws
and the corporation law of the State of Delaware;
(iii) ensure that (x) the business and
affairs of the Transferor are at all times managed by or
under the direction of its Board of Directors, (y) its
Board of Directors shall have duly authorized all
corporate actions requiring such authorization and, (z)
when necessary, the Transferor shall have obtained
proper authorization for corporate action from its
stockholder;
(iv) at all times includes at least two
Independent Directors (as such term is defined in the
certificate of incorporation of the Transferor);
(v) maintain separate corporate records and
books of account from those of any Affiliate and keep
correct and complete books and records of account and
minutes of the meetings and other proceedings of its
stockholder and Board of Directors;
(vi) pay the fair market rent for any office
space located in the office of any Affiliate and a fair
share of any overhead costs;
(vii) maintain separate bank accounts and
books of account from those of its Affiliates and ensure
that its funds and other assets shall at all times be
readily distinguishable from the funds and other assets
of its Affiliates and not be commingled with the funds
or other assets of its Affiliates;
(viii) pay from its own separate funds all
material liabilities incurred by it, including material
operating and administrative expenses; provided that the
organizational expenses of the Transferor and expenses
relating to the preparation, negotiation, execution and
delivery of the documentation with respect to the
issuance of the Certificates or notes that it may issue
from time to time may be paid by an Affiliate. No
general overhead or administrative expenses of any
Affiliate shall be charged or otherwise allocated to the
Transferor unless such general overhead or
administrative expenses are directly attributable to
services provided to or for the account of the
Transferor.
(ix) conduct its business solely in its own
name so as not to mislead others as to its identity or
the identity of any Affiliate. All oral and written
communications of the Transferor, including without
limitation letters, invoices, purchase orders,
contracts, statements, and applications shall be made
solely in the name of the Transferor;
(x) not make any guaranty with respect to
the obligations of any Affiliate and no Affiliate shall
make any guaranty with respect to the obligations of the
Transferor;
(xi) ensure that there will be no
intercompany debt between the Transferor and any
Affiliate; provided, that the stockholder of the
Transferor may contribute capital to the Transferor in
such amounts as are necessary to assure that such
Transfer has adequate capital for its business and the
Transferor may issue subordinated notes in the amount
and manner specified in the Receivables Purchase
Agreement;
(xii) act solely in its own name and through
its duly authorized officers or agents in the conduct of
its business and at all times maintain an arm's length
relationship with its Affiliates. The Transferor shall
not: (v) hold itself out as having agreed to pay or
become liable for the debts of any Affiliate; (w) fail
to correct any known misrepresentation with respect to
the Transferor's agreement to pay or become liable for
the debts of any Affiliate; (x) operate or purport to
operate as an integrated, single economic unit with any
Affiliate in its dealings with any other Person; (y)
seek or obtain credit or incur any obligation to any
Person based upon the assets of an Affiliate or
unaffiliated entity; or (z) induce any Person reasonably
to rely on the creditworthiness of any Affiliate in its
dealings with the Transferor; and
(xiii) disclose in its annual financial
statements the effects of the transactions contemplated
herein and in each Receivables Purchase Agreement in
accordance with generally accepted accounting
principles. Such financial statements shall (x) clearly
indicate the separate existence of the Transferor and
its Affiliates, (y) reflect the Transferor's separate
assets and liabilities and (z) record the purchase of
the Receivables pursuant to the applicable Receivables
Purchase Agreement as a purchase under generally
accepted accounting principles.
(i) Interchange. With respect to any
Distribution Date, on or prior to the immediately
preceding Determination Date, the Servicer shall notify
the Transferor of the amount of Interchange required to
be included as Collections of Finance Charge Receivables
with respect to such Monthly Period, which amount for any
Series shall be specified in the related Supplement. Not
later than 1:00 p.m., New York City time, on the related
Transfer Date, the Transferor shall deposit into the
Collection Account, in immediately available funds, the
amount of Interchange to be so included as Collections of
Finance Charge Receivables with respect to such Monthly
Period.
Section 2.8 Covenants of the Transferor with
Respect to Receivables Purchase Agreement. The
Transferor, in its capacity as purchaser of Receivables
from PFR or an Account Owner pursuant to a Receivables
Purchase Agreement, hereby covenants that the Transferor
will at all times enforce the covenants and agreements of
PFR, or such Account Owner, as applicable, in such
Receivables Purchase Agreement, including, without
limitation, the covenants to the effect set forth below:
(a) Periodic Rate Finance Charges. (i)
Except (x) as otherwise required by any Requirements of
Law or (y) as is deemed by the related Account Owner to
be necessary in order for it to maintain its credit card
business or a program operated by such credit card
business on a competitive basis based on a good faith
assessment by it of the nature of the competition with
respect to the credit card business or such program, it
shall not at any time take any action which would have
the effect of reducing the Portfolio Yield to a level
that could be reasonably expected to cause any Series to
experience any Pay Out Event or Reinvestment Event based
on the insufficiency of the Portfolio Yield or any
similar test and (ii) except as otherwise required by any
Requirements of Law, it shall not take any action which
would have the effect of reducing the Portfolio Yield to
less than the highest current Average Rate for any Group.
(b) Credit Card Agreements and Guidelines.
Subject to compliance with all Requirements of Law and
paragraph (a) above any Account Owner may change the
terms and provisions of the applicable Credit Card
Agreements or the applicable Credit Card Guidelines in
any respect (including the calculation of the amount or
the timing of charge-offs and the Periodic Rate Finance
Charges to be assessed thereon). Notwithstanding the
above, unless required by Requirements of Law or as
permitted by Section 2.8(a), no Account Owner will take
any action with respect to the applicable Credit Card
Agreements or the applicable Credit Card Guidelines,
which, at the time of such action, the Account Owner
reasonably believes will have a material adverse effect
on the Investor Certificateholders.
The Transferor further covenants that it will
not enter into any amendments to a Receivables Purchase
Agreement or enter into a new Receivables Purchase
Agreement unless the Rating Agency Condition has been
satisfied.
Section 2.9 Addition of Accounts.
(a) Required Additional Accounts. (i) If,
as of the close of business on the last Business Day of
any calendar month, (a) the total amount of Principal
Receivables is less than the Required Minimum Principal
Balance on such date or (b) the Transferor Amount is less
than the Required Transferor Amount on such date, the
Transferor shall on or prior to the close of business on
the tenth Business Day of the next succeeding calendar
month (the "Required Designation Date"), cause to be
designated additional Eligible Accounts to be included as
Accounts as of the Required Designation Date or any
earlier date in a sufficient amount (or such lesser
amount as shall represent all Eligible Accounts
constituting VISA and MasterCard consumer revolving
credit card accounts then available to the Transferor
under the Receivables Purchase Agreements) such that,
after giving effect to such addition the aggregate
principal balance of Principal Receivables, conveyed to
the Trust as of the close of business on the Addition
Date is at least equal to the Required Minimum Principal
Balance on such date and the Transferor Amount is at
least equal to the Required Transferor Amount on such
date.
(ii) In lieu of, or in addition to, causing
the designation of Additional Accounts pursuant to clause
(i) above, the Transferor may (but shall not be
required), subject to the conditions specified in
paragraph (c) below, convey to the Trust participations
(including 100% participations) representing undivided
interests in a pool of assets primarily consisting of
revolving credit card receivables, consumer loan
receivables (secured and unsecured), charge card
receivables, and any interests in any of the foregoing,
including securities representing or backed by such
receivables, and other self-liquidating financial assets
including any "Eligible Assets" as such term is defined
in Rule 3a-7 under the Investment Company Act (or any
successor to such Rule) and collections, together with
all earnings, revenue, dividends, distributions, income,
issues and profits thereon ("Participation Interests").
Receivables shall not be treated as a Participation
Interest for purposes of this Agreement. The addition of
Participation Interests in the Trust pursuant to this
paragraph (a) or paragraph (b) below shall be effected by
a Participation Interest Supplement, dated the applicable
Addition Date and entered into pursuant to Section
13.1(a).
(iii) Any Additional Accounts or
Participation Interests designated to be included as
Trust Assets pursuant to clauses (i) or (ii) above may
only be so included if (x) Standard & Poor's shall have
notified the Transferor, the Servicer and the Trustee in
writing that such addition will not result in a reduction
or withdrawal of the then existing rating of any
outstanding Series or Class with respect to which
Standard & Poor's is a Rating Agency and (y) the
applicable conditions specified in paragraph (c) below
have been satisfied.
(b) Permitted Aggregate Additions. The
Transferor may from time to time, at its sole discretion,
subject to the conditions specified in paragraph (c)
below, voluntarily cause the designation of additional
Eligible Accounts to be included as Accounts or
Participation Interests to be included as Trust Assets,
in either case as of a specified Additional Cut-Off Date.
(c) Conditions to Aggregate Additions. On
the Addition Date with respect to any Aggregate
Additions, the Trust shall purchase the Receivables in
Aggregate Addition Accounts (and such Aggregate Addition
Accounts shall be deemed to be Accounts for purposes of
this Agreement) or shall purchase such Participation
Interests as of the close of business on the applicable
Additional Cut-Off Date, subject to the satisfaction of
the following conditions:
(i) on or before the eighth Business Day
immediately preceding the Addition Date, the Transferor
shall have given the Trustee, the Servicer and each
Rating Agency notice (unless such notice requirement is
otherwise waived) that the Aggregate Addition Accounts
or Participation Interests will be included and
specifying the applicable Addition Date and Additional
Cut-Off Date;
(ii) all Aggregate Addition Accounts shall be
Eligible Accounts;
(iii) the Transferor shall have delivered to
the Trustee copies of UCC-1 financing statements
covering such Aggregate Addition Accounts, if necessary
to perfect the Trust's interest in the Receivables
arising therein;
(iv) to the extent required by Section 4.3,
the Transferor shall have deposited in the Collection
Account all Collections with respect to such Aggregate
Addition Accounts since the Additional Cut-Off Date;
(v) as of each of the Additional Cut-Off Date
and the Addition Date, no Insolvency Event with respect
to the related Account Owner, Account Originator, the
Bank, PFR or the Transferor shall have occurred nor
shall the transfer to the Trust of the Receivables
arising in the Aggregate Addition Accounts or of the
Participation Interests have been made in contemplation
of the occurrence thereof;
(vi) solely with respect to Aggregate
Additions designated pursuant to subsection 2.9(b), the
Rating Agency Condition shall have been satisfied;
(vii) the Transferor shall have delivered to
the Trustee an Officer's Certificate, dated the Addition
Date, confirming, to the extent applicable, the items
set forth in clauses (ii) through (vi) above;
(viii) the addition to the Trust of the
Receivables arising in the Aggregate Addition Accounts
or of the Participation Interests will not result in an
Adverse Effect and, in the case of Aggregate Additions,
the Transferor shall have delivered to the Trustee an
Officer's Certificate, dated the Addition Date, stating
that the Transferor reasonably believes that the
addition to the Trust of the Receivables arising in the
Aggregate Addition Accounts or of the Participation
Interests will not have an Adverse Effect; and
(ix) the Transferor shall have delivered to
the Trustee and each Rating Agency an Opinion of
Counsel, dated the Addition Date, in accordance with
subsection 13.2(d)(ii) or (iv), as applicable.
(d) New Accounts.
(i) The Transferor may from time to time, at
its sole discretion, subject to and in compliance with
the limitations specified in clause (ii) below and the
conditions specified in paragraph (e) below, voluntarily
designate newly originated Eligible Accounts to be
included as New Accounts. For purposes of this
paragraph, Eligible Accounts shall be deemed to include
only MasterCard and VISA revolving credit card accounts
of the same nature as those included as Initial Accounts
or which have previously been included in any Aggregate
Addition if the Assignment related to such Aggregate
Addition expressly provides that such type of revolving
credit card account is permitted to be designated as a
New Account.
(ii) Unless and until each Rating Agency
otherwise consents in writing, the Transferor shall not
be permitted to designate New Accounts and, upon
obtaining such consent, the number and balance of New
Accounts designated with respect to any period
designated by the Rating Agency shall not exceed the
amounts designated by the Rating Agency.
(e) Conditions to Addition of New Accounts.
On the Addition Date with respect to any New Accounts,
the Trust shall purchase the Receivables in such New
Accounts (and such New 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 satisfaction of the following conditions:
(i) the New Accounts shall all be Eligible
Accounts;
(ii) the Transferor shall have delivered to
the Trustee copies of UCC-1 financing statements
covering such New Accounts, if necessary to perfect the
Trust's interest in the Receivables arising therein;
(iii) to the extent required by Section 4.3,
the Transferor shall have deposited in the Collection
Account all Collections with respect to such New
Accounts since the Additional Cut-Off Date;
(iv) as of each of the Additional Cut-Off
Date and the Addition Date, no Insolvency Event with
respect to the related Account Owner, Account
Originator, the Bank, Partners First or the Transferor,
shall have occurred nor shall the transfer to the Trust
of the Receivables arising in the New Accounts have been
made in contemplation of the occurrence thereof; and
(v) the addition of the Receivables arising
in the New Accounts to the Trust will not result in the
occurrence of a Pay Out Event or Reinvestment Event.
(f) Representations and Warranties. The
Transferor conveying Additional Accounts or Participation
Interests hereby represents and warrants to the Trust as
of the related Addition Date as to the matters set forth
in clauses (v) and (viii) of subsection 2.9(c) above and
that, in the case of Additional Accounts, the list
delivered pursuant to paragraph (h) below is, as of the
applicable Additional Cut-Off Date, true and complete in
all material respects.
(g) Delivery of Documents. In the case of
the designation of Additional Accounts, the Transferor
designating such Accounts shall deliver to the Trustee
(i) the computer file or microfiche list required to be
delivered pursuant to Section 2.1 with respect to such
Additional Accounts on the date such file or list is
required to be delivered pursuant to Section 2.1 (the
"Document Delivery Date") and (ii) a duly executed,
written Assignment (including an acceptance by the
Trustee for the benefit of the Certificateholders),
substantially in the form of Exhibit B (the
"Assignment"), on the Document Delivery Date. In
addition, in the case of the designation of New Accounts,
the Transferor shall deliver to the Trustee on the
Document Delivery Date an Officer's Certificate
confirming, to the extent applicable, the items set forth
in clauses (i) through (v) of subsection 2.9(e) above.
Section 2.10 Removal of Accounts and
Participation Interests. On any day of any Monthly
Period the Transferor shall have the right to require the
reassignment to it or its designee of all the Trust's
right, title and interest in, to and under the
Receivables then existing and thereafter created, all
monies due or to become due and all amounts received
thereafter with respect thereto and all proceeds thereof
in or with respect to the Accounts specified in a
Receivables Purchase Agreement (the "Removed Accounts")
or Participation Interests conveyed to the Trust by the
Transferor (the "Removed Participation Interests")
(unless otherwise set forth in the applicable
Participation Interest Supplement or Series Supplement)
and designated for removal by the Transferor, upon
satisfaction of the conditions in clauses (i), (iii),
(iv) and (v) below:
(i) on or before the eighth Business Day
immediately preceding the Removal Date, the Transferor
shall have given the Trustee, the Servicer, the Rating
Agency and each Series Enhancer notice (unless such
notice requirement is otherwise waived) of such removal
and specifying the date for removal of the Removed
Accounts and removed Participation Interests (the
"Removal Date");
(ii) on or prior to the date that is five
Business Days after the Removal Date, the Transferor
shall amend Schedule 1 by delivering to the Trustee a
computer file or microfiche list containing a true and
complete list of the Removed Accounts specifying for
each such Account, as of the date notice of the Removal
Date is given, its account number, the aggregate amount
outstanding in such Account and the aggregate amount of
Principal Receivables outstanding in such Account;
(iii) the Transferor shall have represented
and warranted as of the Removal Date that the list of
Removed Accounts delivered pursuant to paragraph (ii)
above, as of the Removal Date, is true and complete in
all material respects;
(iv) the Rating Agency Condition shall have
been satisfied with respect to the removal of the
Removed Accounts and removed Participation Interests;
(v) the Transferor shall have delivered to
the Trustee an Officer's Certificate, dated the Removal
Date, to the effect that the Transferor reasonably
believes that (a) such removal will not have an Adverse
Effect, and (b) (I) no selection procedures believed by
the Transferor to be materially adverse to the interests
of the Investor Certificateholders have been used in
selecting the Removed Accounts or (II) a random
selection procedure was used by the Transferor in
selecting the Removed Accounts; [and]
[(vi) the Transferor shall have delivered to
the Trustee an Tax Opinion that such removal will not
constitute a reissuance.]
Upon satisfaction of the above conditions,
the Trustee shall execute and deliver to the Transferor a
written reassignment in substantially the form of Exhibit
C (the "Reassignment") and shall, without further action,
be deemed to sell, transfer, assign, set over and
otherwise convey to the Transferor or its designee,
effective as of the Removal Date, without recourse,
representation or warranty, all the right, title and
interest of the Trust in and to the Receivables arising
in the Removed Accounts and Removed Participation
Interests, all monies due and to become due and all
amounts received with respect thereto and all proceeds
thereof and any Insurance Proceeds relating thereto. The
Trustee may conclusively rely on the Officer's
Certificate delivered pursuant to this Section 2.10 and
shall have no duty to make inquiries with regard to the
matters set forth therein and shall incur no liability in
so relying.
In addition to the foregoing, on the date
when any Receivable in an Account becomes a Defaulted
Receivable, the Trust shall automatically and without
further action or consideration be deemed to transfer,
set over and otherwise convey to the Transferor, without
recourse, representation or warranty, all right, title
and interest of the Trust in and to the Defaulted
Receivables in such Account, all monies due or to become
due with respect thereto, all proceeds thereof and any
Insurance Proceeds relating thereto; provided, that
Recoveries of such Account shall be applied as provided
herein.
The foregoing conditions may be amended with
the consent of each Rating Agency but without the consent
of Certificateholders if such amendment is required to
comply with any accounting or regulatory restrictions to
which the Trust, the Transferor, PFR, any Account
Originator or any Account Owner may become subject.
Section 2.11 Account Allocations. In the
event that the Transferor is unable for any reason to
transfer Receivables to the Trust in accordance with the
provisions of this Agreement, including by reason of the
application of the provisions of Section 9.1 or any order
of any Governmental Authority (a "Transfer Restriction
Event"), then, in any such event, (a) the Transferor and
the Servicer agree (except as prohibited by any such
order) to allocate and pay to the Trust, after the date
of such inability, all Collections, including Collections
of Receivables transferred to the Trust prior to the
occurrence of such event, and all amounts which would
have constituted Collections but for the Transferor's
inability to transfer Receivables (up to an aggregate
amount equal to the amount of Receivables transferred to
the Trust by the Transferor in the Trust on such date),
(b) the Transferor and the Servicer agree that such
amounts will be applied as Collections in accordance with
Article IV and the terms of each Supplement and (c) for
so long as the allocation and application of all
Collections and all amounts that would have constituted
Collections are made in accordance with clauses (a) and
(b) above, Principal Receivables and all amounts which
would have constituted Principal Receivables but for the
Transferor's inability to transfer Receivables to the
Trust which are written off as uncollectible in
accordance with this Agreement shall continue to be
allocated in accordance with Article IV and the terms of
each Supplement. For the purpose of the immediately
preceding sentence, the Transferor and the Servicer shall
treat the first received Collections with respect to the
Accounts as allocable to the Trust until the Trust shall
have been allocated and paid Collections in an amount
equal to the aggregate amount of Principal Receivables in
the Trust as of the date of the occurrence of such event.
If the Transferor and the Servicer are unable pursuant to
any Requirements of Law to allocate Collections as
described above, the Transferor and the Servicer agree
that, after the occurrence of such event, payments on
each Account with respect to the principal balance of
such Account shall be allocated first to the oldest
principal balance of such Account and shall have such
payments applied as Collections in accordance with
Article IV and the terms of each Supplement. The parties
hereto agree that Finance Charge Receivables, whenever
created, accrued in respect of Principal Receivables
which have been conveyed to the Trust shall continue to
be a part of the Trust notwithstanding any cessation of
the transfer of additional Principal Receivables to the
Trust and Collections with respect thereto shall continue
to be allocated and paid in accordance with Article IV
and the terms of each Supplement.
Section 2.12 Discount Option.
(a) The Transferor shall have the option to
designate at any time and from time to time a percentage
or percentages, which may be a fixed percentage or a
variable percentage based on a formula (the "Discount
Percentage"), of all or any specified portion of
Principal Receivables created after the Discount Option
Date to be treated as Finance Charge Receivables
("Discount Option Receivables"). The Transferor shall
also have the option of reducing or withdrawing the
Discount Percentage, at any time and from time to time,
on and after such Discount Option Date; provided,
however, such reduction or withdrawal shall occur only if
the Transferor delivers to the Trustee and, in connection
with certain Series, the applicable Series Enhancers, a
certificate of an authorized representative to the effect
that, in the reasonable belief of the Transferor, such
reduction or withdrawal would not have adverse regulatory
or other accounting implications for the Transferor. The
Transferor shall provide to the Servicer, the Trustee and
any Rating Agency 30 days' prior written notice of the
Discount Option Date, and such designation shall become
effective on the Discount Option Date only if (a) the
Transferor has delivered to the Trustee and any such
Series Enhancer a certificate of an authorized
representative to the effect that, based on the facts
known to such representative at the time, the Transferor
reasonably believes that such designation or reduction or
withdrawal will not at the time of its occurrence cause a
Pay Out Event or Reinvestment Event or an event that,
with notice or the lapse of time or both, would
constitute a Pay Out Event or Reinvestment Event, to
occur with respect to any Series and (b) the Transferor
has received written notice from each Rating Agency that
such designation, reduction or withdrawal will satisfy
the Rating Agency Condition .
(b) After the Discount Option Date, Discount
Option Receivable Collections shall be treated as
Collections of Finance Charge Receivables.
Section 2.13 Premium Option.
(a) The Transferor shall have the option to
designate at any time and from time to time a percentage
or percentages, which may be a fixed percentage or a
variable percentage based on a formula (the "Premium
Percentage"), of all or any specified portion of Finance
Charge Receivables created after the Premium Option Date
to be treated as Principal Receivables ("Premium Option
Receivables"). The Transferor shall also have the option
of reducing or withdrawing the Premium Percentage, at any
time and from time to time, on and after such Premium
Option Date; provided, however, that such reduction or
withdrawal may occur only if the Transferor delivers to
the Trustee and, in connection with certain Series, the
applicable Series Enhancers, a certificate of an
authorized representative to the effect that, in the
reasonable belief of the Transferor, such reduction or
withdrawal would not have adverse regulatory or other
accounting implications for the Transferor. The
Transferor shall provide to the Servicer, the Trustee and
any Rating Agency 30 days' prior written notice of the
Premium Option Date, and such designation shall become
effective on the Premium Option Date only if (a) the
Transferor has delivered to the Trustee and any such
Series Enhancer a certificate of an authorized
representative to the effect that, based on the facts
known to such representative at the time, the Transferor
reasonably believes that such designation, reduction or
withdrawal will not at the time of its occurrence cause a
Pay Out Event or Reinvestment Event or an event that,
with notice or the lapse of time or both, would
constitute a Pay Out Event or Reinvestment Event, to
occur with respect to any Series, (b) the Transferor has
received written notice from each Rating Agency that such
designation, reduction or withdrawal will satisfy the
Rating Agency Condition and (c) the Transferor has
delivered a Tax Opinion to the Trustee and each Rating
Agency
(b) After the Premium Option Date, Premium
Option Receivables Collections shall be treated as
Collections of Principal Receivables.
[END OF ARTICLE II]
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.1 Acceptance of Appointment and
Other Matters Relating to the Servicer.
(a) The Bank agrees to act as the Servicer
under this Agreement and the Certificateholders by their
acceptance of Certificates consent to the Bank acting as
Servicer. Notwithstanding the foregoing or any other
provisions of this Agreement or any Supplement, the
Investor Certificateholders consent to any other Account
Owner acting as Servicer hereunder, in full substitution
for the Bank; provided that such Account Owner acting as
Servicer shall expressly assume in writing (unless such
assumption occurs by operation of law), by an agreement
supplemental hereto, executed and delivered to the
Trustee, the performance of every covenant and obligation
of the Servicer, as applicable hereunder, and shall in
all respects be designated the Servicer under this
Agreement.
(b) As agent for the Transferor and the
Trust, the Servicer shall service and administer the
Receivables and any Participation Interests, shall
collect and deposit into the Collection Account payments
due under the Receivables and any Participation Interests
and shall charge-off as uncollectible Receivables, all in
accordance with its customary and usual servicing
procedures for servicing credit card receivables
comparable to the Receivables and in accordance with the
Credit Card Guidelines. As agent for the Transferor and
the Trust, the Servicer shall have full power and
authority, acting alone or through any party properly
designated by it hereunder, to do any and all things in
connection with such servicing and administration which
it may deem necessary or desirable; provided, however,
that subject to the rights of the Trustee and the
Certificateholders hereunder, PFRFC shall have the
absolute right to direct the Servicer with respect to any
power conferred on the Servicer hereunder in accordance
with any such direction. Without limiting the generality
of the foregoing and subject to Section 10.1, the
Servicer or its designee is hereby authorized and
empowered, unless such power is revoked by the Trustee on
account of the occurrence of a Servicer Default pursuant
to Section 10.1, (i) to instruct the Trustee to make
withdrawals and payments from the Collection Account, the
Special Funding Account and any Series Account, as set
forth in this Agreement or any Supplement, (ii) to take
any action required or permitted under any Series
Enhancement, as set forth in this Agreement or any
Supplement, (iii) to execute and deliver, on behalf of
the Trust for the benefit of the Certificateholders, any
and all instruments of satisfaction or cancellation, or
of partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables
and, after the delinquency of any Receivable and to the
extent permitted under and in compliance with applicable
Requirements of Law, to commence collection proceedings
with respect to such Receivables and (iv) to make any
filings, reports, notices, applications and registrations
with, and to seek any consents or authorizations from,
the Commission and any state securities authority on
behalf of the Trust as may be necessary or advisable to
comply with any Federal or state securities or reporting
requirements or other laws or regulations. The Trustee
shall furnish the Servicer with any documents necessary
or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder.
(c) The Servicer shall not, and no Successor
Servicer shall, be obligated to use separate servicing
procedures, offices, employees or accounts for servicing
the Receivables from the procedures, offices, employees
and accounts used by the Servicer or such Successor
Servicer, as the case may be, in connection with
servicing other credit card receivables.
(d) The Servicer shall comply with and
perform its servicing obligations with respect to the
Accounts and Receivables in accordance with the Credit
Card Agreements relating to the Accounts and the Credit
Card Guidelines and all applicable rules and regulations
of MasterCard and VISA, except insofar as any failure to
so comply or perform would not materially and adversely
affect the Trust or the Investor Certificateholders.
(e) The Servicer shall pay out of its own
funds, without reimbursement, all expenses incurred in
connection with the Trust and the servicing activities
hereunder including expenses related to enforcement of
the Receivables, fees and disbursements of the Trustee
(including the reasonable fees and expenses of its
outside counsel) and independent accountants and all
other fees and expenses, including the costs of filing
UCC continuation statements, the costs and expenses
relating to obtaining and maintaining the listing of any
Investor Certificates on any stock exchange and any
stamp, documentary, excise, property (whether on real,
personal or intangible property) or any similar tax
levied on the Trust or the Trust's assets that are not
expressly stated in this Agreement to be payable by the
Trust or the Transferor (other than federal, state, local
and foreign income and franchise taxes, if any, or any
interest or penalties with respect thereto, assessed on
the Trust).
Section 3.2 Servicing Compensation. As full
compensation for its servicing activities hereunder and
as reimbursement for any expense incurred by it in
connection therewith, the Servicer shall be entitled to
receive a servicing fee (the "Servicing Fee") with
respect to each Monthly Period, payable monthly on the
related Distribution Date, in an amount equal to one-
twelfth of the product of (a) the weighted average of the
Servicing Fee Rates with respect to each outstanding
Series (based upon the Servicing Fee Rate for each Series
and the Invested Amount (or such other amount as
specified in the related Supplement) of such Series, in
each case as of the last day of the prior Monthly Period)
and (b) the amount of Principal Receivables on the last
day of the prior Monthly Period. The share of the
Servicing Fee allocable to the Certificateholders'
Interest of a particular Series with respect to any
Monthly Period (the "Monthly Servicing Fee") will be
determined in accordance with the relevant Supplement.
For any Monthly Period, the portion of the Monthly
Servicing Fee with respect to any Series payable from
Interchange shall be an amount equal to the portion of
collections of Finance Charge Receivables allocated to
the Certificateholders' Interest of such Series with
respect to such Monthly Period that is attributable to
Interchange (the "Servicer Interchange"); provided,
however, that Servicer Interchange for a Monthly Period
may not exceed one-twelfth of the product of the Series
Adjusted Investor Amount, as of the last day of such
Monthly Period and the percentage specified in the
related Supplement. The portion of the Servicing Fee
with respect to any Monthly Period not so allocated to
the Certificateholders' Interest of any particular Series
shall be paid by the Holders of the Transferor
Certificates on the related Distribution Date and in no
event shall the Trust, the Trustee, the Investor
Certificateholders of any Series or any Series Enhancer
be liable for the share of the Servicing Fee with respect
to any Monthly Period to be paid by the Holders of the
Transferor Certificates.
Section 3.3 Representations, Warranties and
Covenants of the Servicer. The Bank, as initial
Servicer, hereby makes, and any Successor Servicer by its
appointment hereunder shall make, with respect to itself,
on each Closing Date (and on the date of any such
appointment), the following representations, warranties
and covenants on which the Trustee shall be deemed to
have relied in accepting the Receivables in trust and in
authenticating the Certificates:
(a) Organization and Good Standing. The
Servicer is a corporation or other legal entity validly
existing under the applicable law of the jurisdiction of
its organization or incorporation and has, in all
material respects, full power and authority to own its
properties and conduct its credit card servicing business
as presently owned or conducted, and to execute, deliver
and perform its obligations under this Agreement and each
Supplement.
(b) Due Qualification. The Servicer is duly
qualified to do business and is in good standing as a
foreign corporation or other foreign entity (or is exempt
from such requirements) and has obtained all necessary
licenses and approvals in each jurisdiction in which the
servicing of the Receivables and any Participation
Interests as required by this Agreement requires such
qualification except where the failure to so qualify or
obtain licenses or approvals would not have a material
adverse effect on its ability to perform its obligations
as Servicer under this Agreement.
(c) Due Authorization. The execution,
delivery, and performance of this Agreement and each
Supplement, and the other agreements and instruments
executed or to be executed by the Servicer as
contemplated hereby, have been duly authorized by the
Servicer by all necessary action on the part of the
Servicer.
(d) Binding Obligation. This Agreement and
each Supplement constitutes a legal, valid and binding
obligation of the Servicer, enforceable in accordance
with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws
affecting creditors' rights generally from time to time
in effect or by general principles of equity.
(e) No Conflict. The execution and delivery
of this Agreement and each Supplement by the Servicer,
and the performance of the transactions contemplated by
this Agreement and each Supplement and the fulfillment of
the terms hereof and thereof applicable to the Servicer,
will not conflict with, violate or result in any breach
of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a
default under, any indenture, contract, agreement,
mortgage, deed of trust or other instrument to which the
Servicer is a party or by which it or its properties are
bound which would have an Adverse Effect.
(f) No Violation. The execution and delivery
of this Agreement and each Supplement by the Servicer,
the performance of the transactions contemplated by this
Agreement and each Supplement and the fulfillment of the
terms hereof and thereof applicable to the Servicer will
not conflict with or violate any Requirements of Law
applicable to the Servicer in a manner which would have
an Adverse Effect.
(g) No Proceedings. There are no proceedings
or investigations pending or, to the best knowledge of
the Servicer, threatened against the Servicer before any
Governmental Authority seeking to prevent the
consummation of any of the transactions contemplated by
this Agreement or any Supplement or seeking any
determination or ruling that, in the reasonable judgment
of the Servicer, would materially and adversely affect
the performance by the Servicer of its obligations under
this Agreement or any Supplement.
(h) Compliance with Requirements of Law. The
Servicer shall duly satisfy all obligations on its part
to be fulfilled under or in connection with each
Receivable (and the underlying receivable) and the
related Account, if any, will maintain in effect all
qualifications required under Requirements of Law in
order to service properly each Receivable and the related
Account, if any, and will comply in all material respects
with all other Requirements of Law in connection with
servicing each Receivable and the related Account the
failure to comply with which would have an Adverse
Effect.
(i) No Rescission or Cancellation. The
Servicer shall not permit any rescission or cancellation
of any Receivable (or the underlying receivable) except
in accordance with the Credit Card Guidelines or as
ordered by a court of competent jurisdiction or other
Governmental Authority.
(j) Protection of Certificateholders' Rights.
The Servicer shall take no action which, nor omit to take
any action the omission of which, would impair the rights
of Certificateholders in any Receivable (or the
underlying receivable) or the related Account, if any,
nor shall it reschedule, revise or defer payments due on
any Receivable except in accordance with the Credit Card
Guidelines.
(k) Receivables Not To Be Evidenced by
Promissory Notes. Except in connection with its
enforcement or collection of an Account, the Servicer
will take no action to cause any Receivable to be
evidenced by any instrument, other than an instrument
that, taken together with one or more other writings,
constitutes chattel paper (as such terms are defined in
the UCC) and if any Receivable is so evidenced it shall
be reassigned or assigned to the Servicer as provided in
this Section.
(l) All Consents. All authorizations,
consents, orders or approvals of or registrations or
declarations with any Governmental Authority required to
be obtained, effected or given by the Servicer in
connection with the execution and delivery of this
Agreement and each Supplement by the Servicer and the
performance of the transactions contemplated by this
Agreement and each Supplement by the Servicer, have been
duly obtained, effected or given and are in full force
and effect; provided, however, that the Servicer makes no
representation or warranty regarding state securities or
"blue sky" laws in connection with the distribution of
the Certificates.
In the event (x) any of the representations,
warranties or covenants of the Servicer contained in
subsection 3.3 (h), (i) or (j) with respect to any
Receivable or the related Account is breached, and such
breach has a material adverse effect on the
Certificateholders' Interest in such Receivable (which
determination shall be made without regard to whether
funds are then available to any Investor
Certificateholders pursuant to any Series Enhancement)
and is not cured within 60 days (or such longer period,
not in excess of 150 days, as may be agreed to by the
Trustee and the Transferor) of the earlier to occur of
the discovery of such event by the Servicer, or receipt
by the Servicer of notice of such event given by the
Trustee or the Transferor, or (y) as provided in
subsection 3.3(k) with respect to any Receivable, all
Receivables in the Account or Accounts to which such
event relates shall be assigned and transferred to the
Servicer on the terms and conditions set forth below.
The Servicer shall effect such assignment by
making a deposit into the Collection Account in
immediately available funds on the Transfer Date
following the Monthly Period in which such assignment
obligation arises in an amount equal to the amount of
such Receivables.
Upon each such reassignment or assignment to
the Servicer, the Trustee, on behalf of the Trust, shall
automatically and without further action be deemed to
transfer, assign, set over and otherwise convey to the
Servicer, without recourse, representation or warranty,
all right, title and interest of the Trust in and to such
Receivables, all monies due or to become due and all
amounts received with respect thereto and all proceeds
thereof. The Trustee shall execute such documents and
instruments of transfer or assignment and take such other
actions as shall be reasonably requested by the Servicer
to effect the conveyance of any such Receivables pursuant
to this Section but only upon receipt of an Officer's
Certificate of the Servicer that states that all
conditions set forth in this section have been satisfied.
The obligation of the Servicer to accept reassignment or
assignment of such Receivables, and to make the deposits,
if any, required to be made to the Collection Account as
provided in the preceding paragraph, shall constitute the
sole remedy respecting the event giving rise to such
obligation available to Certificateholders (or the
Trustee on behalf of Certificateholders) or any Series
Enhancer, except as provided in Section 8.4.
Section 3.4 Reports and Records for the
Trustee.
(a) Daily Records. On each Business Day,
the Servicer shall make or cause to be made available at
the office of the Servicer for inspection by the Trustee
upon request a record setting forth (i) the Collections
in respect of Principal Receivables and in respect of
Finance Charge Receivables processed by the Servicer on
the second preceding Business Day in respect of each
Account and (ii) the amount of Receivables as of the
close of business on the second preceding Business Day in
each Account. The Servicer shall, at all times, maintain
its computer files with respect to the Accounts in such a
manner so that the Accounts may be specifically
identified and shall make available to the Trustee at the
office of the Servicer on any Business Day any computer
programs necessary to make such identification. The
Trustee shall enter into such reasonable confidentiality
agreements as the Servicer shall deem necessary to
protect its interests and as are reasonably acceptable in
form and substance to the Trustee.
(b) Monthly Servicer's Certificate. Not
later than the second Business Day preceding each
Distribution Date, the Servicer shall, with respect to
each outstanding Series, deliver to the Trustee and each
Rating Agency a certificate of a Servicing Officer in
substantially the form set forth in the related
Supplement.
Section 3.5 Annual Certificate of Servicer.
The Servicer shall deliver to the Trustee and the Rating
Agency on or before March 31 of each calendar year,
beginning with March 31, 1998, an Officer's Certificate
substantially in the form of Exhibit D.
Section 3.6 Annual Servicing Report of
Independent Public Accountants; Copies of Reports
Available.
(a) On or before March 31 of each calendar
year, beginning with March 31, 1998, the Servicer shall
cause a firm of nationally recognized independent public
accountants (who may also render other services to the
Servicer or the Transferor) to furnish a report
(addressed to the Trustee) to the Trustee, the Servicer
and each Rating Agency to the effect that they have
applied certain procedures agreed upon with the Servicer
and examined certain documents and records relating to
the servicing of Accounts under this Agreement and each
Supplement and that, on the basis of such agreed-upon
procedures, nothing has come to the attention of such
accountants that caused them to believe that the
servicing (including the allocation of Collections) has
not been conducted in compliance with the terms and
conditions as set forth in Articles III and Article IV
and Section 8.8 of this Agreement and the applicable
provisions of each Supplement, except for such exceptions
as they believe to be immaterial and such other
exceptions as shall be set forth in such statement. Such
report shall set forth the agreed-upon procedures
performed.
(b) On or before March 31 of each calendar
year, beginning with March 31, 1998, the Servicer shall
cause a firm of nationally recognized independent public
accountants (who may also render other services to the
Servicer or the Transferor) to furnish a report to the
Trustee, the Servicer and each Rating Agency, to the
effect that they have randomly selected three of the 12
monthly certificates forwarded by the Servicer pursuant
to subsection 3.4(b) during the period covered by such
report (which shall be the 12-month period ending on
December 31 of the preceding calendar year) and have
compared the amounts set forth therein with the
Servicer's computer reports which were the source or such
amounts and found them to be in agreement or shall
disclose any exceptions noted and that they have
recalculated the mathematical accuracy of amounts derived
in such monthly certificates; provided, however, that
upon the occurrence of a charge-off with respect to any
Investor Certificate, the Servicer shall cause such
accountants to furnish such report with respect to all 12
of the monthly certificates forwarded by the Servicer
during such 12-month period.
(c) A copy of each certificate and report
provided pursuant to subsection 3.4(b), or Section 3.5 or
3.6 may be obtained by any Investor Certificateholder or
Certificate Owner by a request in writing to the Trustee
addressed to the Corporate Trust Office.
Section 3.7 Tax Treatment. The Transferor
has entered into this Agreement, and the Certificates
will be issued with the intention that, unless otherwise
specified in any Supplement, for Federal, state and local
income and franchise tax purposes, the Investor
Certificates (except any Certificates held by the
Transferor) of each Series will qualify as debt secured
by the Receivables. The Transferor, by entering into
this Agreement, each Certificateholder, by the acceptance
of its Certificate (and each Certificate Owner, by its
acceptance of an interest in the applicable Certificate),
agree to treat the Investor Certificates for Federal,
state and local income and franchise tax purposes as
debt. Each Holder of an Investor Certificate agrees that
it will cause any Certificate Owner acquiring an interest
in an Investor Certificate through it to comply with this
Agreement as to treatment as debt under applicable tax
law, as described in this Section 3.7. Furthermore,
subject to Section 11.11 or unless the Transferor shall
determine that the filing of returns is appropriate, the
Trustee shall treat the Trust as a security device only
and shall not file tax returns or obtain an employer
identification number on behalf of the Trust and none of
the parties hereto shall make the election provided for
in Treasury Regulation Section 301.7701-3(c).
Section 3.8 Notices to the Bank. In the
event that the Bank is no longer acting as Servicer, any
Successor Servicer shall deliver or make available to the
Bank each certificate and report required to be provided
thereafter pursuant to subsection 3.4(b) and Sections 3.5
and 3.6.
Section 3.9 Adjustments.
(a) If the Servicer adjusts downward the
amount of any Receivable because of a rebate, refund,
unauthorized charge or billing error to a cardholder,
because such Receivable was created in respect of
merchandise which was refused or returned by a
cardholder, or if the Servicer otherwise adjusts downward
the amount of any Receivable without receiving
Collections therefor or charging off such amount as
uncollectible, then, in any such case, the amount of
Principal Receivables used to calculate the Transferor
Amount, the Transferor's Interest, and (unless otherwise
specified) any other amount required herein or in any
Supplement to be calculated by reference to the amount of
Principal Receivables, will be reduced by the amount of
the adjustment. Similarly, the amount of Principal
Receivables used to calculate the Transferor Amount and
(unless otherwise specified) any other amount required
herein or in any Supplement to be calculated by reference
to the amount of Principal Receivables will be reduced by
the principal amount of any Receivable which was
discovered as having been created through a fraudulent or
counterfeit charge or with respect to which the covenant
contained in subsection 2.7(b) was breached. Any
adjustment required pursuant to either of the two
preceding sentences shall be made on or prior to the end
of the Monthly Period in which such adjustment obligation
arises. In the event that, following the exclusion of
such Principal Receivables from the calculation of the
Transferor Amount, the Transferor Amount would be less
than the Required Transferor Amount, not later than 1:00
P.M., New York City time, on the Distribution Date
following the Monthly Period in which such adjustment
obligation arises, the Transferor shall make a deposit
into the Special Funding Account in immediately available
funds in an amount equal to the amount by which the
Transferor Amount would be less than the Required
Transferor Amount, due to adjustments with respect to
Receivables conveyed by such the Transferor (up to the
amount of such Principal Receivables).
(b) If (i) the Servicer makes a deposit into
the Collection Account in respect of a Collection of a
Receivable and such Collection was received by the
Servicer in the form of a check which is not honored for
any reason or (ii) the Servicer makes a mistake with
respect to the amount of any Collection and deposits an
amount that is less than or more than the actual amount
of such Collection, the Servicer shall appropriately
adjust the amount subsequently deposited into the
Collection Account to reflect such dishonored check or
mistake. Any Receivable in respect of which a dishonored
check is received shall be deemed not to have been paid.
Notwithstanding the first two sentences of this
paragraph, adjustments made pursuant to this Section
shall not require any change in any report previously
delivered pursuant to subsection 3.4(a).
Section 3.10 Reports to the Commission. The
Servicer shall, on behalf of the Trust, cause to be filed
with the Commission any periodic reports required to be
filed under the provisions of the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the
Commission thereunder. The Transferor shall, at the
expense of the Servicer, cooperate in any reasonable
request of the Servicer in connection with such filings.
[END OF ARTICLE III]
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.1 Rights of Certificateholders.
The Investor Certificates shall represent undivided
interests in the Trust, which, with respect to each
Series, shall consist of the right to receive, to the
extent necessary to make the required payments with
respect to the Investor Certificates of such Series at
the times and in the amounts specified in the related
Supplement, the portion of Collections allocable to
Investor Certificateholders of such Series pursuant to
this Agreement and such Supplement, funds on deposit in
the Collection Account and the Special Funding Account
allocable to Certificateholders of such Series pursuant
to this Agreement and such Supplement, funds on deposit
in any related Series Account and funds available
pursuant to any related Series Enhancement (collectively,
with respect to all Series, the "Certificateholders'
Interest"), it being understood that, except as
specifically set forth in the Supplement with respect
thereto, the Investor Certificates of any Series or Class
shall not represent any interest in any Series Account or
Series Enhancement for the benefit of any other Series or
Class. The Transferor Certificates shall represent the
ownership interest in the Trust Assets not allocated
pursuant to this Agreement or any Supplement to the
Certificateholders' Interest, and the right to receive
Collections with respect to the Receivables and other
amounts at the times and in the amounts specified in any
Supplement to be paid to the Transferor on behalf of all
Holders of the Transferor Certificates (the "Transferor's
Interest"); provided, however, that the Transferor
Certificates shall not represent any interest in the
Collection Account, any Series Account or any Series
Enhancement, except as specifically provided in this
Agreement or any Supplement.
Section 4.2 Establishment of Collection
Account and Special Funding Account. The Servicer, for
the benefit of the Certificateholders, shall establish
and maintain in the name of the Trustee, on behalf of the
Trust, an Eligible Deposit Account bearing a designation
clearly indicating that the funds deposited therein are
held for the benefit of the Certificateholders (the
"Collection Account"). The Trustee shall possess all
right, title and interest in all monies, instruments,
securities, documents, certificates of deposit and other
property on deposit from time to time in the Collection
Account and in all proceeds, earnings, income, revenue,
dividends and distributions thereof for the benefit of
the Certificateholders.
The Collection Account shall be under the
sole dominion and control of the Trustee for the benefit
of the Certificateholders. Except as expressly provided
in this Agreement, the Servicer agrees that it shall have
no right of setoff or banker's lien against, and no right
to otherwise deduct from, any funds held in the
Collection Account for any amount owed to it by the
Trustee, the Trust, any Certificateholder or any Series
Enhancer. If, at any time, the Collection Account ceases
to be an Eligible Deposit Account, the Trustee (or the
Servicer on its behalf) shall within 10 Business Days (or
such longer period, not to exceed 30 calendar days, as to
which each Rating Agency may consent) establish a new
Collection Account meeting the conditions specified
above, transfer any monies, documents, instruments,
securities, certificates of deposit and other property to
such new Collection Account and from the date such new
Collection Account is established, it shall be the
"Collection Account." Pursuant to the authority granted
to the Servicer in subsection 3.1(b), the Servicer shall
have the power, revocable by the Trustee, to make
withdrawals and payments from the Collection Account and
to instruct the Trustee to make withdrawals and payments
from the Collection Account for the purposes of carrying
out the Servicer's or the Trustee's duties hereunder.
The Servicer shall reduce deposits into the Collection
Account payable by the Transferor on any Deposit Date to
the extent the Transferor is entitled to receive funds
from the Collection Account on such Deposit Date, but
only to the extent such reduction would not reduce the
Transferor Amount to an amount less than the Required
Transferor Amount.
Funds on deposit in the Collection Account
(other than investment earnings and amounts deposited
pursuant to Sections 2.6, 9.1, 10.1 or 12.2) shall at the
written direction of the Servicer be invested by the
Trustee in Eligible Investments selected by the Servicer.
All such Eligible Investments shall be held by the
Trustee for the benefit of the Certificateholders. The
Trustee shall maintain for the benefit of the
Certificateholders possession of the instruments,
documents, certificates of deposit or securities, if any,
evidencing such Eligible Investments. Investments of
funds representing Collections collected during any
Monthly Period shall be invested in Eligible Investments
that will mature so that such funds will be available no
later than the close of business on each monthly Transfer
Date following such Monthly Period in amounts sufficient
to the extent of such funds to make the required
distributions on the following Distribution Date. No
such Eligible Investment shall be disposed of prior to
its maturity; provided, however, that the Trustee may
sell, liquidate or dispose of any such Eligible
Investment before its maturity, at the written direction
of the Servicer, if such sale, liquidation or disposal
would not result in a loss of all or part of the
principal portion of such Eligible Investment or if,
prior to the maturity of such Eligible Investment, a
default occurs in the payment of principal, interest or
any other amount with respect to such Eligible
Investment. Unless directed by the Servicer, funds
deposited in the Collection Account on a Transfer Date
with respect to the immediately succeeding Distribution
Date are not required to be invested overnight. On each
Distribution Date, all interest and other investment
earnings (net of losses and investment expenses) on funds
on deposit in the Collection Account shall be paid to the
Transferor, except as otherwise specified in any
Supplement. The Trustee shall bear no responsibility or
liability for any losses resulting from investment or
reinvestment of any funds in accordance with this Section
4.2 nor for the selection of Eligible Investments in
accordance with the provisions of this Agreement.
The Servicer, for the benefit of the
Certificateholders, shall establish and maintain in the
name of the Trustee, on behalf of the Trust, an Eligible
Deposit Account bearing a designation clearly indicating
that the funds deposited therein are held for the benefit
of the Certificateholders (the "Special Funding
Account"). The Trustee shall possess all right, title
and interest in all monies, instruments, securities,
documents, certificates of deposit and other property on
deposit from time to time in the Special Funding Account
and in all proceeds, dividends, distributions, earnings,
income and revenue thereof for the benefit of the
Certificateholders. The Special Funding Account shall be
under the sole dominion and control of the Trustee for
the benefit of the Certificateholders. Except as
expressly provided in this Agreement, the Servicer agrees
that it shall have no right of setoff or banker's lien
against, and no right to otherwise deduct from, any funds
held in the Special Funding Account for any amount owed
to it by the Trustee, the Trust, any Certificateholder or
any Series Enhancer. If, at any time, the Special
Funding Account ceases to be an Eligible Deposit Account,
the Trustee (or the Servicer on its behalf) shall within
10 Business Days (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may
consent) establish a new Special Funding Account meeting
the conditions specified above, transfer any monies,
documents, instruments, securities, certificates of
deposit and other property to such new Special Funding
Account and from the date such new Special Funding
Account is established, it shall be the "Special Funding
Account."
Funds on deposit in the Special Funding
Account shall at the written direction of the Servicer
(who may be directed by the Transferor, at its option) be
invested by the Trustee in Eligible Investments selected
by the Servicer. All such Eligible Investments shall be
held by the Trustee for the benefit of the
Certificateholders. The Trustee shall maintain for the
benefit of the Certificateholders possession of the
instruments, documents, certificates of deposit or
securities, if any, evidencing such Eligible Investments.
Funds on deposit in the Special Funding Account on any
Distribution Date will be invested in Eligible
Investments that will mature so that such funds will be
available no later than the close of business on the
Transfer Date following such Monthly Period. No such
Eligible Investment shall be disposed of prior to its
maturity; provided, however, that the Trustee may sell,
liquidate or dispose of an Eligible Investment before its
maturity, at the written direction of the Servicer (who
may be directed by the Transferor, at its option) or if,
prior to the maturity of such Eligible Investment, a
default occurs in the payment of principal, interest or
any other amount with respect to such Eligible
Investment. Unless directed by the Servicer, funds
deposited in the Special Funding Account on a Transfer
Date with respect to the immediately succeeding
Distribution Date are not required to be invested
overnight. On each Distribution Date, all interest and
other investment earnings (net of losses and investment
expenses) on funds on deposit in the Special Funding
Account shall be treated as Collections of Finance Charge
Receivables with respect to the last day of the related
Monthly Period except as otherwise specified in the
related Supplement. On each Business Day on which funds
are on deposit in the Special Funding Account and on
which no Series is in an Accumulation Period or
Amortization Period, the Servicer shall determine the
amount (if any) by which the Transferor Amount exceeds
the Required Transferor Amount on such date and shall
instruct the Trustee to withdraw any such excess from the
Special Funding Account and pay such amount to the
Holders of the Transferor Certificates; provided,
however, that, if an Accumulation Period or Amortization
Period has commenced and is continuing with respect to
one or more outstanding Series, any funds on deposit in
the Special Funding Account shall be treated as Shared
Principal Collections and shall be allocated and
distributed in accordance with Section 4.4 and the terms
of each Supplement.
Section 4.3 Collections and Allocations.
(a) The Servicer will apply or will instruct
the Trustee to apply all funds on deposit in the
Collection Account as described in this Article IV and in
each Supplement. Except as otherwise provided below, the
Servicer shall deposit Collections into the Collection
Account as promptly as possible after the Date of
Processing of such Collections, but in no event later
than the second Business Day following the Date of
Processing. Subject to the express terms of any
Supplement, but notwithstanding anything else in this
Agreement to the contrary, for so long as either (i) the
Bank remains the Servicer and the Bank or an Affiliate of
the Bank acceptable to the Rating Agencies maintains a
short-term rating of not less than A-1 by Standard & Poor
and P-1 by Moody's and a certificate of deposit rating of
not less than A-1 by Standard & Poor's and P-1 by Moody's
and no Pay Out Event or Reinvestment Event shall have
occurred or (ii) the Bank shall have otherwise made
arrangements which satisfy the Rating Agency Condition,
the Servicer need not make the daily deposits of
Collections into the Collection Account as provided in
the preceding sentence, but may make a single deposit in
the Collection Account in immediately available funds not
later than 1:00 P.M., New York City time, on the Transfer
Date following the Monthly Period with respect to which
such deposit relates. In the event that neither of the
foregoing conditions is satisfied, then the Bank shall
commence making daily deposits of Collections into the
Collection Account as provided above, within five
Business Days of the date on which neither of such
conditions shall have been satisfied. Subject to the
first proviso in Section 4.4, but notwithstanding
anything else in this Agreement to the contrary, with
respect to any Monthly Period, whether the Servicer is
required to make deposits of Collections pursuant to the
first or the second preceding sentence, (i) the Servicer
will only be required to deposit Collections into the
Collection Account up to the aggregate amount of
Collections required to be deposited into any Series
Account or, without duplication, distributed on or prior
to the related Distribution Date to Investor
Certificateholders or to any Series Enhancer pursuant to
the terms of any Supplement or Enhancement Agreement and
(ii) if at any time prior to such Distribution Date the
amount of Collections deposited in the Collection Account
exceeds the amount required to be deposited pursuant to
clause (i) above, the Servicer will be permitted to
withdraw the excess from the Collection Account. Subject
to the immediately preceding sentence, the Servicer may
retain its Servicing Fee with respect to a Series and
shall not be required to deposit it in the Collection
Account.
(b) Collections of Finance Charge
Receivables and Principal Receivables and Defaulted
Amounts will be allocated to each Series on the basis of
the Series Allocable Finance Charge Collections of such
Series, Series Allocable Principal Collections of such
Series and Series Allocable Defaulted Amount of such
Series and amounts so allocated to any Series will not,
except as specified in the related Supplement, be
available to the Investor Certificateholders of any other
Series. Allocations of the foregoing amounts between the
Certificateholders' Interest and the Transferor's
Interest, among the Series and among the Classes in any
Series, shall be set forth in the related Supplement or
Supplements.
Section 4.4 Shared Principal Collections.
On each Distribution Date, (a) the Servicer shall
allocate Shared Principal Collections (as described
below) to each Principal Sharing Series, pro rata, in
proportion to the Principal Shortfalls, if any, with
respect to each such Series and (b) the Servicer shall
withdraw from the Collection Account and pay to the
Holders of the Transferor Certificates an amount equal to
the excess, if any, of (x) the aggregate amount for all
outstanding Series of Collections of Principal
Receivables which the related Supplements specify are to
be treated as "Shared Principal Collections" for such
Distribution Date over (y) the aggregate amount for all
outstanding Series which the related Supplements specify
are "Principal Shortfalls" for such Series and for such
Distribution Date; provided, however, that if the
Transferor Amount as of such Distribution Date
(determined after giving effect to the Principal
Receivables or Participation Interests transferred to the
Trust on such date) is less than the Required Transferor
Amount, the Servicer will not distribute to the Holders
of the Transferor Certificates any such amounts that
otherwise would be distributed to the Holders of the
Transferor Certificates, but shall deposit such funds in
the Special Funding Account. The Transferor may, at its
option, instruct the Trustee to deposit Shared Principal
Collections which are otherwise payable to the Holders of
the Transferor Certificates pursuant to the provisions
set forth above into the Special Funding Account.
Section 4.5 Additional Withdrawals from the
Collection Account. On or before the Determination Date
with respect to any Monthly Period, the Servicer shall
determine the amounts payable to each Account Owner with
respect to such Monthly Period under the applicable
Receivables Purchase Agreement in respect of amounts on
deposit in the Collection Account that were not
transferred to the Trust hereunder, and the Servicer
shall withdraw such amounts from the Collection Account
and pay such amount to the applicable Account Owner.
Section 4.6 Allocation of Trust Assets to
Series or Groups. To the extent so provided in the
Supplement for any Series or in an amendment to this
Agreement executed pursuant to subsection 13.1(a),
Receivables conveyed to the Trust pursuant to Section 2.1
and Receivables or Participation Interests conveyed to
the Trust pursuant to Section 2.9 or any Participation
Interest Supplement, and all Collections received with
respect to thereto may be allocated or applied in whole
or in part to one or more Series or Groups as may be
provided in such Supplement or amendment, provided,
however, that any such allocation or application shall be
effective only upon satisfaction of the following
conditions:
(i) on or before the fifth Business Day
immediately preceding such allocation, the Servicer
shall have given the Trustee and each Rating Agency
written notice of such allocation;
(ii) the Rating Agency Condition shall have
been satisfied with respect to such allocation; and
(iii) the Servicer shall have delivered to
the Trustee an Officer's Certificate, dated the date of
such allocation, to the effect that the Servicer
reasonably believes that such allocation will not have
an Adverse Effect.
Any such Supplement or amendment may provide
that (i) such allocation to one or more particular Series
or Groups may terminate upon the occurrence of certain
events specified therein and (ii) that upon the
occurrence of any such event, such assets and any
Collections with respect thereto, shall be reallocated to
other Series or Groups or to all Series, all as shall be
provided in such Supplement or amendment.
[END OF ARTICLE IV]
ARTICLE V
DISTRIBUTIONS AND REPORTS TO
CERTIFICATEHOLDERS
Distributions shall be made to, and reports
shall be provided to, Certificateholders as set forth in
the applicable Supplement. The identity of the
Certificateholders with respect to distributions and
reports shall be determined according to the immediately
preceding Record Date.
[END OF ARTICLE V]
ARTICLE VI
THE CERTIFICATES
Section 6.1 The Certificates. The Investor
Certificates of any Series or Class shall be issued in
fully registered form (including any uncertificated
Series or Class which is registered in the Certificate
Register, the "Registered Certificates") unless the
applicable Supplement provides, in accordance with then
applicable laws, that such Certificates be issued in
bearer form ("Bearer Certificates") with attached
interest coupons and a special coupon (collectively the
"Coupons"). Such Registered Certificates or Bearer
Certificates, as the case may be, shall be substantially
in the form of the exhibits with respect thereto attached
to the applicable Supplement. The Transferor Certificate
will be issued in registered form, substantially in the
form of Exhibit A, and shall upon issue, be executed and
delivered by the Transferor to the Trustee for
authentication and redelivery as provided in Section 6.2.
If specified in any Supplement, the Investor Certificates
of any Series or Class shall be issued upon initial
issuance as one or more certificates evidencing the
aggregate original principal amount of such Series or
Class as described in Section 6.10. The Transferor
Certificate shall be a single certificate and shall
initially represent the entire Transferor's Interest.
Each Certificate shall be executed by manual or facsimile
signature on behalf of the Transferor by its President or
any Vice President or by any attorney-in-fact duly
authorized to execute such Certificate on behalf of any
such officer. Certificates bearing the manual or
facsimile signature of an individual who was, at the time
when such signature was affixed, authorized to sign on
behalf of the Transferor shall not be rendered invalid,
notwithstanding that such individual ceased to be so
authorized prior to the authentication and delivery of
such Certificates or does not hold such office at the
date of such Certificates. No Certificates shall be
entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form
provided for herein executed by or on behalf of the
Trustee by the manual signature of a duly authorized
signatory, and such certificate upon any Certificate
shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and
delivered hereunder. Bearer Certificates shall be dated
the Series Issuance Date. All Registered Certificates
and Transferor's Certificates shall be dated the date of
their authentication.
Section 6.2 Authentication of Certificates.
The Trustee shall, at the written direction of the
Transferor, authenticate and deliver the Investor
Certificates of each Series and Class that are issued
upon original issuance to or upon the order of the
Transferor against payment to the Transferor of the
purchase price therefor. The Trustee shall authenticate
and deliver the Transferor Certificate to the Transferor
simultaneously with the execution of this Agreement. If
specified in the related Supplement for any Series or
Class, the Trustee shall authenticate and deliver outside
the United States the Global Certificate that is issued
upon original issuance thereof.
Section 6.3 New Issuances.
(a) The Transferor may from time to time
direct the Trustee, on behalf of the Trust, to issue one
or more new Series of Investor Certificates. The
Investor Certificates of all outstanding Series shall be
equally and ratably entitled as provided herein to the
benefits of this Agreement without preference, priority
or distinction, all in accordance with the terms and
provisions of this Agreement and the applicable
Supplement except, with respect to any Series or Class,
as provided in the related Supplement.
(b) On or before the Series Issuance Date
relating to any new Series, the parties hereto will
execute and deliver a Supplement which will specify the
Principal Terms of such new Series. The Trustee shall
execute the Supplement and the Transferor shall execute
the Investor Certificates of such Series and deliver such
Investor Certificates to the Trustee for authentication.
In connection with the issuance of a new Series of
Investor Certificates or at any other time, a Transferor
may surrender its Transferor Certificate to the Trustee
in exchange for a newly issued Transferor Certificate and
a second certificate (a "Supplemental Certificate"), the
terms of which shall be defined in a supplement (a
"Transferor Certificate Supplement") to this Agreement
(which Transferor Certificate Supplement shall be subject
to Section 13.1 to the extent that it amends any of the
terms of this Agreement) to be delivered to or upon the
order of the Transferor. The issuance of any such
Investor Certificates or Supplemental Certificate shall
be subject to satisfaction of the following conditions:
(i) on or before the fifth day immediately
preceding the Series Issuance Date or Transferor
Certificate surrender and exchange, as the case may be,
the Transferor shall have given the Trustee, the
Servicer and each Rating Agency notice (unless such
notice requirement is otherwise waived) of such issuance
and the Series Issuance Date or the Transferor
Certificate surrender and exchange, as the case may be;
(ii) the Transferor shall have delivered to
the Trustee the related Supplement or Transferor
Certificate Supplement, as applicable, in form
satisfactory to the Trustee, executed by each party
hereto (other than the Trustee and the Holder of the
Supplemental Certificate, if any);
(iii) the Transferor shall have delivered to
the Trustee any related Enhancement Agreement executed
by each of the parties thereto, other than the Trustee;
(iv) the Trustee shall have received
confirmation from each Rating Agency that the Rating
Agency Condition shall have been satisfied with respect
to such issuance or the Transferor Certificate surrender
and exchange, as the case may be;
(v) such issuance or surrender and exchange,
as the case may be, will not result in any Adverse
Effect and the Transferor shall have delivered to the
Trustee an Officer's Certificate, dated the Series
Issuance Date or the date of such surrender and
exchange, as the case may be, to the effect that the
Transferor reasonably believes that such issuance or
such surrender and exchange, as the case may be, will
not, based on the facts known to such officer at the
time of such certification, have an Adverse Effect;
(vi) the Transferor shall have delivered to
the Trustee (with a copy to each Rating Agency) a Tax
Opinion, dated the Series Issuance Date or the date of
such surrender and exchange, as the case may be, with
respect to such issuance or surrender and exchange,
respectively; and
(vii) the aggregate amount of Principal
Receivables theretofore conveyed to the Trust as of the
Series Issuance Date or the date of such surrender and
exchange, as the case may be, shall be greater than the
Required Minimum Principal Balance as of the Series
Issuance Date or the date of such surrender and
exchange, as the case may be, and after giving effect to
such issuance or such surrender and exchange,
respectively and the Transferor Amount shall be greater
than or equal to the Required Transferor Amount.
Any Supplemental Certificate held by any
Person, and any Investor Certificate held by the
Transferor at any time after the date of its initial
issuance, may be transferred or exchanged only upon the
delivery to the Trustee of a Tax Opinion dated as of the
date of such transfer or exchange, as the case may be,
with respect to such transfer or exchange.
Section 6.4. Registration of Transfer and
Exchange of Certificates.
(a) The Trustee shall cause to be kept at
the Corporate Trust Office a register (the "Certificate
Register") in which, subject to such reasonable
regulations as it may prescribe, a transfer agent and
registrar (which may be the Trustee) (the "Transfer Agent
and Registrar") shall provide for the registration of the
Registered Certificates and of transfers and exchanges of
the Registered Certificates as herein provided. The
Transfer Agent and Registrar shall initially be the
Trustee and any co-transfer agent and co-registrar chosen
by the Transferor and acceptable to the Trustee,
including, if and so long as any Series or Class is
listed on the Luxembourg Stock Exchange and such exchange
shall so require, a co-transfer agent and co-registrar in
Luxembourg. Any reference in this Agreement to the
Transfer Agent and Registrar shall include any
co-transfer agent and registrar unless the context
requires otherwise.
The Trustee may revoke such appointment and
remove any Transfer Agent and Registrar if the Trustee
determines in its sole discretion that such transfer
Agent and Registrar failed to perform its obligations
under this Agreement in any material respect. Any
Transfer Agent and Registrar shall be permitted to resign
as Transfer Agent and Registrar upon 30 days' notice to
the Transferor, the Trustee and the Servicer; provided,
however, that such resignation shall not be effective and
such Transfer Agent and Registrar shall continue to
perform its duties as Transfer Agent and Registrar until
the Trustee has appointed a successor Transfer Agent and
Registrar reasonably acceptable to the Transferor.
Subject to subsection (c) below, upon
surrender for registration of transfer or exchange of any
Registered Certificate at any office or agency of the
Transfer Agent and Registrar maintained for such purpose,
one or more new Registered Certificates (of the same
Series and Class) in authorized denominations of like
aggregate fractional undivided interests in the
Certificateholders' Interest shall be executed,
authenticated and delivered, in the name of the
designated transferee or transferees.
At the option of a Registered
Certificateholder, subject to subsection (c) below and
subject to the provisions of any Supplement or other
agreement establishing the terms of an instrument,
Registered Certificates (of the same Series and Class)
may be exchanged for other Registered Certificates of
authorized denominations of like aggregate fractional
undivided interests in the Certificateholders' Interest,
upon surrender of the Registered Certificates to be
exchanged at any such office or agency; Registered
Certificates, including Registered Certificates received
in exchange for Bearer Certificates, may not be exchanged
for Bearer Certificates. At the option of the Holder of
a Bearer Certificate, subject to applicable laws and
regulations, Bearer Certificates may be exchanged for
other Bearer Certificates or Registered Certificates (of
the same Series and Class) of authorized denominations of
like aggregate fractional undivided interests in the
Certificateholders' Interest, upon surrender of the
Bearer Certificates to be exchanged at an office or
agency of the Transfer Agent and Registrar located
outside the United States. Each Bearer Certificate
surrendered pursuant to this Section shall have attached
thereto all unmatured Coupons; provided that any Bearer
Certificate so surrendered after the close of business on
the Record Date preceding the relevant payment date or
distribution date after the expected final payment date
need not have attached the Coupon relating to such
payment date or distribution date (in each case, as
specified in the applicable Supplement).
The preceding provisions of this Section
notwithstanding, the Trustee or the Transfer Agent and
Registrar, as the case may be, shall not be required to
register the transfer of or exchange any Certificate for
a period of 15 days preceding the due date for any
payment with respect to the Certificate.
Whenever any Investor Certificates are so
surrendered for exchange, the Transferor shall execute,
the Trustee shall authenticate and the Transfer Agent and
Registrar shall deliver (in the case of Bearer
Certificates, outside the United States) the Investor
Certificates which the Investor Certificateholder making
the exchange is entitled to receive. Every Investor
Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written
instrument of transfer in a form satisfactory to the
Trustee or the Transfer Agent and Registrar duly executed
by the Investor Certificateholder or the attorney-in-fact
thereof duly authorized in writing.
No service charge shall be made for any
registration of transfer or exchange of Investor
Certificates, but the Transfer Agent and Registrar may
require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection
with any such transfer or exchange.
All Investor Certificates (together with any
Coupons) surrendered for registration of transfer and
exchange or for payment shall be canceled and disposed of
in a manner satisfactory to the Trustee. The Trustee
shall cancel and destroy any Global Certificate upon its
exchange in full for Definitive Euro-Certificates and
shall deliver a certificate of destruction to the
Transferor. Such certificate shall also state that a
certificate or certificates of a Foreign Clearing Agency
to the effect referred to in Section 6.13 was received
with respect to each portion of the Global Certificate
exchanged for Definitive Euro-Certificates.
The Transferor shall execute and deliver to
the Trustee Bearer Certificates and Registered
Certificates in such amounts and at such times as are
necessary to enable the Trustee to fulfill its
responsibilities under this Agreement, each Supplement
and the Certificates.
The interest of any Investor
Certificateholder in any Receivable shall not be
transferable other than through the transfer of an
Investor Certificate, and except as provided in this
Article VI, a Certificate shall not be transferable or
divisible.
(b) The Transfer Agent and Registrar will
maintain at its expense in the Borough of Manhattan, The
City of New York, and, if and so long as any Series or
Class is listed on the Luxembourg Stock Exchange,
Luxembourg, an office or agency where Investor
Certificates may be surrendered for registration of
transfer or exchange (except that Bearer Certificates may
not be surrendered for exchange at any such office or
agency in the United States or its territories and
possessions).
(c) (i) Registration of transfer of Investor
Certificates containing a legend substantially to the
effect set forth on Exhibit G-1 shall be effected only
if such transfer (x) is made pursuant to an effective
registration statement under the Act, or is exempt from
the registration requirements under the Act, and (y) is
made to a Person which is not an employee benefit plan,
trust or account, including an individual retirement
account, that is subject to ERISA or that is described
in Section 4975(e)(1) of the Code or an entity whose
underlying assets include plan assets by reason of a
plan's investment in such entity (a "Benefit Plan"). In
the event that registration of a transfer is to be made
in reliance upon an exemption from the registration
requirements under the Act, the transferor or the
transferee shall deliver, at its expense, to the
Transferor, the Servicer and the Trustee, an investment
letter from the transferee, substantially in the form of
the investment and ERISA representation letter attached
hereto as Exhibit G-2, and no registration of transfer
shall be made until such letter is so delivered.
Investor Certificates issued upon
registration or transfer of, or Investor Certificates
issued in exchange for, Investor Certificates bearing
the legend referred to above shall also bear such legend
unless the Transferor, the Servicer, the Trustee and the
Transfer Agent and Registrar receive an Opinion of
Counsel, satisfactory to each of them, to the effect
that such legend may be removed.
Whenever an Investor Certificate containing
the legend referred to above is presented to the
Transfer Agent and Registrar for registration of
transfer, the Transfer Agent and Registrar shall
promptly seek instructions from the Servicer regarding
such transfer and shall be entitled to receive
instructions signed by a Servicing Officer prior to
registering any such transfer. The Transferor hereby
agrees to indemnify the Transfer Agent and Registrar and
the Trustee and to hold each of them harmless against
any loss, liability or expense incurred without
negligence or bad faith on their part arising out of or
in connection with actions taken or omitted by them in
relation to any such instructions furnished pursuant to
this clause (i).
(ii) Registration of transfer of Investor
Certificates containing a legend to the effect set forth
on Exhibit G-3 shall be effected only if such transfer
is made to a Person which is not a Benefit Plan. By
accepting and holding any such Investor Certificate, an
Investor Certificateholder shall be deemed to have
represented and warranted that it is not a Benefit Plan.
By acquiring any interest in a Book-Entry Certificate
which contains such legend, a Certificate Owner shall be
deemed to have represented and warranted that it is not
a Benefit Plan.
(iii) If so requested by the Transferor, the
Trustee will make available to any prospective purchaser
of Investor Certificates who so requests, a copy of a
letter provided to the Trustee by or on behalf of the
Transferor relating to the transferability of any Series
or Class to a Benefit Plan.
Section 6.5 Mutilated, Destroyed, Lost or
Stolen Certificates. If (a) any mutilated Certificate
(together, in the case of Bearer Certificates, with all
unmatured Coupons (if any) appertaining thereto) is
surrendered to the Transfer Agent and Registrar, or the
Transfer Agent and Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Transfer
Agent and Registrar and the Trustee such security or
indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee
that such Certificate has been acquired by a bona fide
purchaser, the Transferor shall execute, the Trustee
shall authenticate and the Transfer Agent and Registrar
shall deliver (in the case of Bearer Certificates,
outside the United States), in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and
aggregate fractional undivided interest. In connection
with the issuance of any new Certificate under this
Section, the Trustee or the Transfer Agent and Registrar
may require the payment by the Certificateholder of a sum
sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee
and Transfer Agent and Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section
shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be
found at any time.
Section 6.6 Persons Deemed Owners. The
Trustee, the Paying Agent, the Transfer Agent and
Registrar, the Transferor, the Servicer and any agent of
any of them may (a) prior to due presentation of a
Registered Certificate for registration of transfer,
treat the Person in whose name any Registered Certificate
is registered as the owner of such Registered Certificate
for the purpose of receiving distributions pursuant to
the terms of the applicable Supplement and for all other
purposes whatsoever, and (b) treat the bearer of a Bearer
Certificate or Coupon as the owner of such Bearer
Certificate or Coupon for the purpose of receiving
distributions pursuant to the terms of the applicable
Supplement and for all other purposes whatsoever; and, in
any such case, neither the Trustee, the Paying Agent, the
Transfer Agent and Registrar, the Transferor, the
Servicer nor any agent of any of them shall be affected
by any notice to the contrary. Notwithstanding the
foregoing, in determining whether the Holders of the
requisite Investor Certificates have given any request,
demand, authorization, direction, notice, consent or
waiver hereunder, Certificates owned by any of the
Transferor, the Servicer, any other Holder of the
Transferor Certificate or any Affiliate thereof, shall be
disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Certificates which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded.
Certificates so owned which have been pledged in good
faith shall not be disregarded and may be regarded as
outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act
with respect to such Certificates and that the pledgee is
not the Transferor, the Servicer, any other Holder of the
Transferor Certificate or any Affiliate thereof. None of
the Transferor, the Servicer, the Trustee, the Registrar
or the Paying Agent will have any responsibility or
liability for any of the records relating to or on
account of beneficial ownership in Book-Entry
Certificates or for maintaining, supervising or reviewing
records relating thereto.
Section 6.7 Appointment of Paying Agent.
The Paying Agent shall make distributions to Investor
Certificateholders from the Collection Account or
applicable Series Account pursuant to the provisions of
the applicable Supplement and shall report the amounts of
such distributions to the Trustee. Any Paying Agent
shall have the revocable power to withdraw funds from the
Collection Account or applicable Series Account for the
purpose of making the distributions referred to above.
The Trustee may revoke such power and remove the Paying
Agent if the Trustee determines in its sole discretion
that the Paying Agent shall have failed to perform its
obligations under this Agreement or any Supplement in any
material respect. The Paying Agent shall initially be
the Trustee and any co-paying agent chosen by the
Transferor and acceptable to the Trustee, including, if
and so long as any Series or Class is listed on the
Luxembourg Stock Exchange and such exchange so requires,
a co-paying agent in Luxembourg or another western
European city. In the event that any Paying Agent shall
resign, the Trustee shall appoint a successor to act as
Paying Agent. The Trustee shall act as Paying Agent
until a successor is appointed. The Trustee shall cause
each successor or additional Paying Agent to execute and
deliver to the Trustee an instrument in which such
successor or additional Paying Agent shall agree with the
Trustee that it will hold all sums, if any, held by it
for payment to the Investor Certificateholders in trust
for the benefit of the Investor Certificateholders
entitled thereto until such sums shall be paid to such
Investor Certificateholders. The Paying Agent shall
return all unclaimed funds to the Trustee and upon
removal shall also return all funds in its possession to
the Trustee. The provisions of Sections 11.1, 11.2, 11.3
and 11.5 shall apply to the Trustee also in its role as
Paying Agent, for so long as the Trustee shall act as
Paying Agent. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the
context requires otherwise.
Section 6.8 Access to List of Registered
Certificateholders' Names and Addresses. The Trustee
will furnish or cause to be furnished by the Transfer
Agent and Registrar to the Servicer or the Paying Agent,
within five Business Days after receipt by the Trustee of
a request therefor, a list in such form as the Servicer
or the Paying Agent may reasonably require, of the names
and addresses of the Registered Certificateholders. If
any Holder or group of Holders of Investor Certificates
of any Series or all outstanding Series, as the case may
be, evidencing not less than 10% of the aggregate unpaid
principal amount of such Series or all outstanding
Series, as applicable (the "Applicants"), apply to the
Trustee, and such application states that the Applicants
desire to communicate with other Investor
Certificateholders with respect to their rights under
this Agreement or any Supplement or under the Investor
Certificates and is accompanied by a copy of the
communication which such Applicants propose to transmit,
then the Trustee, after having been adequately
indemnified by such Applicants for its costs and
expenses, shall afford or shall cause the Transfer Agent
and Registrar to afford such Applicants access during
normal business hours to the most recent list of
Registered Certificateholders of such Series or all
outstanding Series, as applicable, held by the Trustee,
within five Business Days after the receipt of such
application. Such list shall be as of a date no more
than 45 days prior to the date of receipt of such
Applicants' request.
With respect to any Series of Registered
Certificates, every Registered Certificateholder, by
receiving and holding a Registered Certificate, agrees
with the Trustee that neither the Trustee, the Transfer
Agent and Registrar, nor any of their respective agents,
shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the
Registered Certificateholders hereunder, regardless of
the sources from which such information was derived.
Section 6.9 Authenticating Agent.
(a) The Trustee may appoint one or more
authenticating agents with respect to the Certificates
which shall be authorized to act on behalf of the Trustee
in authenticating the Certificates in connection with the
issuance, delivery, registration of transfer, exchange or
repayment of the Certificates. Whenever reference is made
in this Agreement to the authentication of Certificates
by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication on behalf of the Trustee by an
authenticating agent and certificate of authentication
executed on behalf of the Trustee by an authenticating
agent. Each authenticating agent must be acceptable to
the Transferor and the Servicer.
(b) Any institution succeeding to the
corporate agency business of an authenticating agent
shall continue to be an authenticating agent without the
execution or filing of any power or any further act on
the part of the Trustee or such authenticating agent. An
authenticating agent may at any time resign by giving
notice of resignation to the Trustee and to the
Transferor. The Trustee may at any time terminate the
agency of an authenticating agent by giving notice of
termination to such authenticating agent and to the
Transferor. Upon receiving such a notice of resignation
or upon such a termination, or in case at any time an
authenticating agent shall cease to be acceptable to the
Trustee or the Transferor, the Trustee promptly may
appoint a successor authenticating agent. Any successor
authenticating agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect
as if originally named as an authenticating agent. No
successor authenticating agent shall be appointed unless
acceptable to the Trustee and the Transferor. The
Transferor agrees to pay to each authenticating agent
from time to time reasonable compensation for its
services under this Section. The provisions of Sections
11.1, 11.2 and 11.3 shall be applicable to any
authenticating agent.
(c) Pursuant to an appointment made under
this Section, the Certificates may have endorsed thereon,
in lieu of the Trustee's certificate of authentication,
an alternate certificate of authentication in
substantially the following form:
This is one of the Certificates described in
the Pooling and Servicing Agreement.
____________________________
____________________________
as Authenticating Agent
for the Trustee,
By
_________________________
Authorized Officer
Section 6.10 Book-Entry Certificates. Unless
otherwise specified in the related Supplement for any
Series or Class, the Investor Certificates, upon original
issuance, shall be issued in the form of one or more
master Investor Certificates representing the Book-Entry
Certificates, to be delivered to the Clearing Agency, by,
or on behalf of, the Transferor. The Investor
Certificates shall initially be registered on the
Certificate Register in the name of the Clearing Agency
or its nominee, and no Certificate Owner will receive a
definitive certificate representing such Certificate
Owner's interest in the Investor Certificates, except as
provided in Section 6.12. Unless and until definitive,
fully registered Investor Certificates ("Definitive
Certificates") have been issued to the applicable
Certificate Owners pursuant to Section 6.12 or as
otherwise specified in any such Supplement:
(a) the provisions of this Section shall be in
full force and effect;
(b) the Transferor, the Servicer and the
Trustee may deal with the Clearing Agency and the
Clearing Agency Participants for all purposes (including
the making of distributions) as the authorized
representatives of the respective Certificate Owners;
(c) to the extent that the provisions of this
Section conflict with any other provisions of this
Agreement, the provisions of this Section shall control;
and
(d) the rights of the respective Certificate
Owners shall be exercised only through the Clearing
Agency and the Clearing Agency Participants and shall be
limited to those established by law and agreements
between such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants. Pursuant to the
Depository Agreement, unless and until Definitive
Certificates are issued pursuant to Section 6.12, the
Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit
distributions of principal and interest on the related
Investor Certificates to such Clearing Agency
Participants.
For purposes of any provision of this Agreement
requiring or permitting actions with the consent of, or
at the direction of, Investor Certificateholders
evidencing a specified percentage of the aggregate unpaid
principal amount of Investor Certificates, such direction
or consent may be given by Certificate Owners (acting
through the Clearing Agency and the Clearing Agency
Participants) owning Investor Certificates evidencing the
requisite percentage of principal amount of Investor
Certificates.
Section 6.11 Notices to Clearing Agency.
Whenever any notice or other communication is required to
be given to Investor Certificateholders of any Series or
Class with respect to which Book-Entry Certificates have
been issued, unless and until Definitive Certificates
shall have been issued to the related Certificate Owners,
the Trustee shall give all such notices and
communications to the applicable Clearing Agency.
Section 6.12 Definitive Certificates. If
Book-Entry Certificates have been issued with respect to
any Series or Class and (a) the Transferor advises the
Trustee that the Clearing Agency is no longer willing or
able to discharge properly its responsibilities under the
Depository Agreement with respect to such Series or Class
and the Trustee or the Transferor is unable to locate a
qualified successor, (b) the Transferor, at its option,
advises the Trustee that it elects to terminate the book-
entry system with respect to such Series or Class through
the Clearing Agency or (c) after the occurrence of a
Servicer Default, Certificate Owners of such Series or
Class evidencing not less than 50% of the aggregate
unpaid principal amount of such Series or Class advise
the Trustee and the Clearing Agency through the Clearing
Agency Participants that the continuation of a book-entry
system with respect to the Investor Certificates of such
Series or Class through the Clearing Agency is no longer
in the best interests of the Certificate Owners with
respect to such Certificates, then the Trustee shall
notify all Certificate Owners of such Certificates,
through the Clearing Agency, of the occurrence of any
such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same.
Upon surrender to the Trustee of any such Certificates by
the Clearing Agency, accompanied by registration
instructions from the Clearing Agency for registration,
the Trustee shall authenticate and deliver such
Definitive Certificates. Neither the Transferor nor the
Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the
issuance of such Definitive Certificates all references
herein to obligations imposed upon or to be performed by
the Clearing Agency shall be deemed to be imposed upon
and performed by the Trustee, to the extent applicable
with respect to such Definitive Certificates and the
Trustee shall recognize the Holders of such Definitive
Certificates as Investor Certificateholders hereunder.
Section 6.13 Global Certificate; Exchange
Date.
(a) If specified in the related Supplement for
any Series or Class, the Investor Certificates for such
Series or Class initially will be issued in the form of a
single temporary global certificate (the "Global
Certificate") in bearer form, without interest coupons,
in the denomination of the entire aggregate principal
amount of such Series or Class and substantially in the
form set forth in the exhibit with respect thereto
attached to the related Supplement. The Global
Certificate will be executed by the Transferor and
authenticated and delivered by the Trustee or its agent
to the Common Depositary outside the United States for
credit to the respective accounts of the Foreign Clearing
Agencies and may be exchanged as described in this
Section 6.13 for Definitive Euro- Certificates in
definitive form substantially in the form set forth in
the exhibit with respect thereto attached to the related
Supplement (the "Definitive Euro-Certificates"). The
"Definitive-Euro-Certificates" shall be Bearer
Certificates for all purposes of this Agreement and the
provisions of this Agreement and the related Supplement
relating to Definitive Euro-Certificates shall apply to
the Definitive Euro-Certificates in all respects. The
Definitive Euro-Certificates shall be issued in the
minimum denominations specified in the related
Supplement.
(b) No interest will be paid in respect of any
beneficial interest in the Global Certificates and no
exchange of an interest in the Global Certificates for a
Definitive Euro- Certificate may occur until the person
entitled to receive such Definitive Euro- Certificate
provides certification as to non-U.S. beneficial
ownership as provided in this Section 6.13. Until the
Global Certificate with respect to a Series or Class is
exchanged for a Definitive Euro-Certificate for such
Series or Class, any holder thereof shall be entitled to
receive payments of interest thereon only to the extent
that the person appearing in the records of the Foreign
Clearing Agency as the beneficial owner thereof or a
portion thereof has delivered to such Foreign Clearing
Agency a certification and the Foreign Clearing Agency
has delivered to the Trustee a certification, in each
case pursuant to this Section 6.13 hereof on or prior to
the date of distribution.
(c) The Manager shall, upon its determination
of the Global Certificate Exchange Date, so advise the
Trustee, the Transferor, the Common Depositary and each
Foreign Clearing Agency forthwith. Without unnecessary
delay, but in any event not later than the Global
Certificate Exchange Date, the Transferor will execute
and deliver to the Trustee at its London office or its
designated office outside the United States Definitive
Euro-Certificates in an aggregate principal amount equal
to the entire Initial Invested Amount of such Series or
Class. All Definitive Euro- Certificates so issued and
delivered will have Coupons attached. The Global
Certificate may be exchanged for an equal aggregate
amount of Bearer Certificates only on or after the Global
Certificate Exchange Date. Notwithstanding the
foregoing, no holder of an interest in a Global
Certificate will have any right to receive a Bearer
Certificate in exchange for such interest prior to the
Global Certificate Exchange Date and prior to
certification (in the manner provided in this Section
6.13) that either such holder is not a United States
person or is otherwise a permitted holder.
(d) The Bearer Certificates shall be
authenticated and delivered by the Trustee or its agent
in exchange for only that portion of the Global
Certificate, in respect of which there shall have been
presented to the Trustee by the applicable Foreign
Clearing Agency, a certificate, substantially in the form
set forth in the exhibit with respect thereto attached to
the related Supplement, that the Trustee does not know to
be false, to the effect that such Foreign Clearing Agency
has received from or in respect of a person entitled to a
particular principal amount of the Investor Certificates
of the applicable Series or Class (as shown by its
records), a certificate from such person in or
substantially in the form set forth in the exhibit with
respect thereto attached to the related Supplement. Upon
receipt of such certification, the Trustee shall cause
the Global Certificates to be endorsed in accordance with
subsection 6.13(d) below.
(e) On an exchange of the whole of a Global
Certificate, such Global Certificate shall be surrendered
to the Trustee or its agent at its office in London,
England for cancellation and shall be returned by the
Trustee or its agent to the Transferor. On an exchange
of only part of a Global Certificate, details of such
exchange shall be entered by the Paying Agent with
respect to the Series on behalf of the Trust, and further
exchanges may be effected, without the issue of a new
Global Certificate, by the Trust or its agent endorsing
the schedule attached to the Global Certificate
previously issued to reflect a decrease in the aggregate
principal amount of the Global Certificate.
(f) Upon any such exchange of all or a portion
of a Global Certificate for a Bearer Certificate or
Bearer Certificates, such Global Certificate shall be
endorsed by or on behalf of the Trustee to reflect the
reduction in the principal amount by an amount equal to
the aggregate principal amount of such Bearer Certificate
or Bearer Certificates. Until so exchanged in full, the
Global Certificates will in all respects be entitled to
the same benefits under this Agreement and the related
Supplement as Bearer Certificates authenticated and
delivered pursuant to this Agreement and the related
Supplement except that the beneficial owners of such
Global Certificate will not be entitled to receive
payments of interest until they have exchanged their
beneficial interests in such Global Certificate for
Bearer Certificates.
(g) The delivery to the Trustee by a Foreign
Clearing Agency of any written statement referred to
above may be relied upon by the Transferor and the
Trustee as conclusive evidence that a corresponding
certification or certifications has or have been
delivered to such Foreign Clearing Agency pursuant to the
terms of the related Supplement.
(h) The Bearer Certificates to be delivered in
exchange for the Global Certificates shall be delivered
only outside the United States.
(i) Any exchange as provided for in this
Section shall be made free of charge to the holders and
the beneficial owners of the Global Certificates and to
the beneficial owners of the Bearer Certificates issued
in exchange, except that a person receiving a Bearer
Certificate must bear the cost of insurance, postage,
transportation and the like in the event that such person
does not receive such Bearer Certificate in person at the
offices of the applicable Foreign Clearing Agency.
(j) Until the exchange of the Global
Certificates as aforesaid, the bearer thereof shall in
all respects be entitled to the same benefits as if it
were the bearer of Bearer Certificates and the Coupons
attached thereto.
Section 6.14 Meetings of Certificateholders.
(a) If at the time any Bearer Certificates are
issued and outstanding with respect to any Series or
Class to which any meeting described below relates, the
Servicer or the Trustee may at any time call a meeting of
Investor Certificateholders of any Series or Class or of
all Series, to be held at such time and at such place as
the Servicer or the Trustee, as the case may be, shall
determine, for the purpose of approving a modification of
or amendment to, or obtaining a waiver of any covenant or
condition set forth in, this Agreement, any Supplement or
the Investor Certificates or of taking any other action
permitted to be taken by Investor Certificateholders
hereunder or under any Supplement. Notice of any meeting
of Investor Certificateholders, setting forth the time
and place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given in
accordance with Section 13.5, the first mailing and
publication to be not less than 20 nor more than 180 days
prior to the date fixed for the meeting. To be entitled
to vote at any meeting of Investor Certificateholders a
Person shall be (i) a Holder of one or more Investor
Certificates of the applicable Series or Class or (ii) a
person appointed by an instrument in writing as proxy by
the Holder of one or more such Investor Certificates.
The only persons who shall be entitled to be present or
to speak at any meeting of Investor Certificateholders
shall be the persons entitled to vote at such meeting and
their counsel and any representatives of the Transferor,
the Servicer and the Trustee and their respective
counsel.
(b) At a meeting of Investor
Certificateholders, persons entitled to vote Investor
Certificates evidencing a majority of the aggregate
unpaid principal amount of the applicable Series or Class
or all outstanding Series, as the case may be, shall
constitute a quorum. No business shall be transacted in
the absence of a quorum, unless a quorum is present when
the meeting is called to order. In the absence of a
quorum at any such meeting, the meeting may be adjourned
for a period of not less than 10 days; in the absence of
a quorum at any such meeting, such adjourned meeting may
be further adjourned for a period of not less than 10
days; at the reconvening of any meeting further adjourned
for lack of a quorum, the persons entitled to vote
Investor Certificates evidencing at least 25% of the
aggregate unpaid principal amount of the applicable
Series or Class or all outstanding Series, as the case
may be, shall constitute a quorum for the taking of any
action set forth in the notice of the original meeting.
Notice of the reconvening of any adjourned meeting shall
be given as provided above except that such notice must
be given not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice
of the reconvening of an adjourned meeting shall state
expressly the percentage of the aggregate principal
amount of the outstanding applicable Investor
Certificates which shall constitute a quorum.
(c) Any Investor Certificateholder who has
executed an instrument in writing appointing a person as
proxy shall be deemed to be present for the purposes of
determining a quorum and be deemed to have voted;
provided that such Investor Certificateholder shall be
considered as present or voting only with respect to the
matters covered by such instrument in writing. Subject
to the provisions of Section 13.1, any resolution passed
or decision taken at any meeting of Investor
Certificateholders duly held in accordance with this
Section shall be binding on all Investor
Certificateholders whether or not present or represented
at the meeting.
(d) The holding of Bearer Certificates shall be
proved by the production of such Bearer Certificates or
by a certificate, satisfactory to the Servicer, executed
by any bank, trust company or recognized securities
dealer, wherever situated, satisfactory to the Servicer.
Each such certificate shall be dated and shall state that
on the date thereof a Bearer Certificate bearing a
specified serial number was deposited with or exhibited
to such bank, trust company or recognized securities
dealer by the Person named in such certificate. Any such
certificate may be issued in respect of one or more
Bearer Certificates specified therein. The holding by
the Person named in any such certificate of any Bearer
Certificate specified therein shall be presumed to
continue for a period of one year from the date of such
certificate unless at the time of any determination of
such holding (i) another certificate bearing a later date
issued in respect of the same Bearer Certificate shall be
produced, (ii) the Bearer Certificate specified in such
certificate shall be produced by some other Person or
(iii) the Bearer Certificate specified in such
certificate shall have ceased to be outstanding. The
appointment of any proxy shall be proved by having the
signature of the Person executing the proxy guaranteed by
any bank, trust company or recognized securities dealer
satisfactory to the Trustee.
(e) The Trustee shall appoint a temporary chair
of the meeting. A permanent chair and a permanent
secretary of the meeting shall be elected by vote of the
Holders of Investor Certificates evidencing a majority of
the aggregate unpaid principal amount of Investor
Certificates of the applicable Series or Class or all
outstanding Series, as the case may be, represented at
the meeting. No vote shall be cast or counted at any
meeting in respect of any Investor Certificate challenged
as not outstanding and ruled by the chair of the meeting
to be not outstanding. The chair of the meeting shall
have no right to vote except as an Investor
Certificateholder or proxy. Any meeting of Investor
Certificateholders duly called at which a quorum is
present may be adjourned from time to time, and the
meeting may be held as so adjourned without further
notice.
(f) The vote upon any resolution submitted to
any meeting of Investor Certificateholders shall be by
written ballot on which shall be subscribed the
signatures of Investor Certificateholders or proxies and
on which shall be inscribed the serial number or numbers
of the Investor Certificates held or represented by them.
The permanent chair of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of
each meeting of Investor Certificateholders shall be
prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the
meeting and showing that said notice was published as
provided above. The record shall be signed and verified
by the permanent chair and secretary of the meeting and
one of the duplicates shall be delivered to the Servicer
and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein
stated.
Section 6.15 Uncertificated Classes.
Notwithstanding anything to the contrary contained in
this Article VI or in Article XII, unless otherwise
specified in any Supplement any provisions contained in
this Article VI and in Article XII relating to the
registration, form, execution, authentication, delivery,
presentation, cancellation and surrender of Certificates
shall not be applicable to any uncertificated
Certificates.
[END OF ARTICLE VI]
ARTICLE VII
OTHER MATTERS RELATING TO THE TRANSFEROR
Section 7.1 Liability of the Transferor. The
Transferor shall be severally, and not jointly, liable
for all obligations, covenants, representations and
warranties of the Transferor arising under or related to
this Agreement or any Supplement. Except as provided in
the preceding sentence, the Transferor shall be liable
only to the extent of the obligations specifically
undertaken by it in its capacity as the Transferor.
Section 7.2 Merger or Consolidation of, or
Assumption of the Obligations of, the Transferor.
(a) The Transferor shall not dissolve,
liquidate, consolidate with or merge into any other
corporation or convey, transfer or sell its properties
and assets substantially as an entirety to any Person
unless:
(i) (x) the corporation formed by such
consolidation or into which the Transferor is merged
or the Person which acquires by conveyance, transfer
or sale the properties and assets of the Transferor
substantially as an entirety shall be, if the
Transferor is not the surviving entity, organized
and existing under the laws of the United States of
America or any State or the District of Columbia,
and shall be a savings association, a national
banking association, a bank or other entity which is
not eligible to be a debtor in a case under Title 11
of the United States Code or is a special purpose
corporation whose powers and activities are limited
to substantially the same degree as provided in the
certificate of incorporation of PFRFC and, if the
Transferor is not the surviving entity, shall
expressly assume, by an agreement supplemental
hereto, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, the
performance of every covenant and obligation of the
Transferor hereunder; and (y) the Transferor or the
surviving entity, as the case may be, has delivered
to the Trustee (with a copy to each Rating Agency)
an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation, merger,
conveyance, transfer or sale and such supplemental
agreement comply with this Section, that such
supplemental agreement is a valid and binding
obligation of such surviving entity enforceable
against such surviving entity in accordance with its
terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws
affecting creditors' rights generally from time to
time in effect or general principles of equity, and
that all conditions precedent herein provided for
relating to such transaction have been complied
with; and
(ii) the Rating Agency Condition shall have
been satisfied with respect to such consolidation,
merger, conveyance or transfer.
(b) Except as permitted by subsection 2.7(c),
the obligations, rights or any part thereof of the
Transferor hereunder shall not be assignable nor shall
any Person succeed to such obligations or rights of the
Transferor hereunder except (i) for conveyances, mergers,
consolidations, assumptions, sales or transfers in
accordance with the provisions of the foregoing paragraph
and (ii) for conveyances, mergers, consolidations,
assumptions, sales or transfers to other entities (1)
which the Transferor and the Servicer determine will not
result in an Adverse Effect, (2) which meet the
requirements of clause (ii) of the preceding paragraph
and (3) for which such purchaser, transferee, pledgee or
entity shall expressly assume, in an agreement
supplemental hereto, executed and delivered to the
Trustee in writing in form satisfactory to the Trustee,
the performance of every covenant and obligation of the
Transferor thereby conveyed.
Section 7.3 Limitations on Liability of the
Transferor. Subject to Section 7.1, neither the
Transferor nor any of the directors, officers, employees,
incorporators or agents of the Transferor acting in such
capacities shall be under any liability to the Trust, the
Trustee, the Certificateholders, any Series Enhancer or
any other Person for any action taken or for refraining
from the taking of any action in good faith in such
capacities pursuant to this Agreement, it being expressly
understood that such liability is expressly waived and
released as a condition of, and consideration for, the
execution of this Agreement and any Supplement and the
issuance of the Certificate; provided, however, that this
provision shall not protect the Transferor or any such
person against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties
hereunder. The Transferor and any director, officer,
employee or agent of the Transferor may rely in good
faith on any document of any kind prima facie properly
executed and submitted by any Person (other than the
Transferor) respecting any matters arising hereunder.
Section 7.4 Transferor Authorized to Execute
Registration Statements and Reports on Behalf of the
Trust. The Trustee hereby authorizes the Transferor to
execute, on behalf of the Trust and file or cause to be
filed with the Securities and Exchange Commission any
registration statements prepared in connection with the
issuance of Investor Certificates and any periodic or
annual reports prepared in connection with the issuance
of Investor Certificates or the delivery of the monthly
servicer's certificates required by Section 3.4.
[END OF ARTICLE VII]
ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER
Section 8.1 Liability of the Servicer. The
Servicer shall be liable under this Article only to the
extent of the obligations specifically undertaken by the
Servicer in its capacity as Servicer.
Section 8.2 Merger or Consolidation of, or
Assumption of the Obligations of, the Servicer. The
Servicer shall not consolidate with or merge into any
other corporation or, except as provided herein, convey,
transfer or sell its properties and assets substantially
as an entirety to any Person, unless:
(a) the corporation formed by such
consolidation or into which the Servicer is merged
or the Person which acquires by conveyance, transfer
or sale the properties and assets of the Servicer
substantially as an entirety shall be, if the
Servicer is not the surviving entity, a corporation
organized and existing under the laws of the United
States of America or any State or the District of
Columbia, and, if the Servicer is not the surviving
entity, such corporation shall expressly assume, by
an agreement supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to
the Trustee, the performance of every covenant and
obligation of the Servicer hereunder;
(b) the Servicer has delivered to the Trustee
an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation, merger,
conveyance, transfer or sale comply with this
Section and that all conditions precedent herein
provided for relating to such transaction have been
complied with;
(c) the Servicer shall have given the
Rating Agencies notice of such consolidation,
merger or transfer or assets; and
(d) the corporation formed by such
consolidation or into which the Servicer is merged or the
Person which acquires by conveyance or transfer the
properties and assets of the Servicer substantially as an
entirety shall be an Eligible Servicer.
Section 8.3 Limitation on Liability of the
Servicer and Others. Except as provided in Section 8.4
and Section 11.5, neither the Servicer nor any of the
directors, officers, employees or agents of the Servicer
in its capacity as Servicer shall be under any liability
to the Trust, the Trustee, the Certificateholders, any
Series Enhancer or any other Person for any action taken
or for refraining from the taking of any action in good
faith in its capacity as Servicer pursuant to this
Agreement; provided, however, that this provision shall
not protect the Servicer or any such Person against any
liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard
of obligations and duties hereunder. The Servicer and
any director, officer, employee or agent of the Servicer
may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person
(other than the Servicer) respecting any matters arising
hereunder. The Servicer shall not be under any
obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties as Servicer
in accordance with this Agreement and which in its
reasonable judgment may involve it in any expense or
liability. The Servicer may, in its sole discretion,
undertake any such legal action which it may deem
necessary or desirable for the benefit of the
Certificateholders with respect to this Agreement and the
rights and duties of the parties hereto and the interests
of the Certificateholders hereunder.
Section 8.4 Servicer Indemnification of the
Trust and the Trustee. The Servicer shall indemnify and
hold harmless the Trust and the Trustee (including the
Trustee in its capacity as Transfer Agent and Registrar
or as Paying Agent) and its directors, officers,
employees and agents from and against any loss,
liability, expense, damage or injury suffered or
sustained by reason of (a) any acts or omissions of the
Servicer with respect to the Trust pursuant to this
Agreement or (b) the administration by the Trustee of the
Trust (in the case of clause (a) or (b), other than any
such loss, liability, expense, damage, or injury as may
arise from the negligence or wilful misconduct of the
Trustee), including any judgment, award, settlement,
reasonable attorneys' fees and other costs or expenses
incurred in connection with the defense of any action,
proceeding or claim. Indemnification pursuant to this
Section shall not be payable from the Trust Assets. The
Servicer's obligations under this Section 8.4 shall
survive the termination of this Agreement or the Trust or
the earlier removal or resignation of the Trustee.
Section 8.5 Resignation of the Servicer. The
Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) upon determination that
(i) the performance of its duties hereunder is no longer
permissible under applicable law and (ii) there is no
reasonable action which the Servicer could take to make
the performance of its duties hereunder permissible under
applicable law or (b) upon the assumption, by an
agreement supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, of the
obligations and duties of the Servicer hereunder by any
of its Affiliates or by any other entity the appointment
of which shall have satisfied the Rating Agency Condition
and, in either case, qualifies as an Eligible Servicer.
Any determination permitting the resignation of the
Servicer shall be evidenced (i) as to clause (a) above,
by an Opinion of Counsel to such effect delivered to the
Trustee and (ii) as to clause (b) above, by an Officer's
Certificate and an Opinion of Counsel delivered to the
Trustee (with a copy to each Rating Agency) each stating
that such assignment by the Bank and assumption by such
Affiliate and such supplemental agreement comply with
this Section, that such supplemental agreement is a valid
and binding obligation of such Affiliate enforceable
against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally from time to
time in effect or general principles of equity, and that
all conditions precedent herein relating to such
transaction have been complied with. No resignation
shall become effective until the Trustee or a Successor
Servicer shall have assumed the responsibilities and
obligations of the Servicer in accordance with Section
10.2 hereof. If within 120 days of the date of the
determination that the Servicer may no longer act as
Servicer under clause (a) above the Trustee is unable to
appoint a Successor Servicer, the Trustee shall serve as
Successor Servicer. Notwithstanding the foregoing, the
Trustee shall, if it is legally unable so to act,
petition a court of competent jurisdiction to appoint any
established institution qualifying as an Eligible
Servicer as the Successor Servicer hereunder. The
Trustee shall give prompt notice to each Rating Agency
and each Series Enhancer upon the appointment of a
Successor Servicer.
Section 8.6 Access to Certain Documentation
and Information Regarding the Receivables. The Servicer
shall provide to the Trustee access to the documentation
regarding the Accounts and the Receivables in such cases
where the Trustee is required in connection with the
enforcement of the rights of Certificateholders or by
applicable statutes or regulations to review such
documentation, such access being afforded without charge
but only (a) upon reasonable request, (b) during normal
business hours, (c) subject to the Servicer's normal
security and confidentiality procedures and (d) at
reasonably accessible offices in the continental United
States designated by the Servicer. Nothing in this
Section shall derogate from the obligation of the
Transferor, the Trustee and the Servicer to observe any
applicable law prohibiting disclosure of information
regarding the Obligors and the failure of the Servicer to
provide access as provided in this Section as a result of
such obligation shall not constitute a breach of this
Section.
Section 8.7 Delegation of Duties. It is
understood and agreed by the parties hereto that the
Servicer may delegate certain of its duties hereunder to
[First Data Resources, Inc. ("FDR")] and certain of its
duties to First Annapolis [Marketing Information
Services, Inc. ("FAMIS")]. In the ordinary course of
business, the Servicer may at any time delegate its
duties hereunder with respect to the Accounts and the
Receivables to any Person that agrees to conduct such
duties in accordance with the Credit Card Guidelines and
this Agreement. No such delegation shall relieve the
Servicer of its liability and responsibility with respect
to such duties, or constitute a resignation within the
meaning of Section 8.5.
Section 8.8 Examination of Records. The
Transferor and the Servicer shall indicate generally in
their computer files or other records that the
Receivables arising in the Accounts have been conveyed to
the Trustee, on behalf of the Trust, pursuant to this
Agreement for the benefit of the Certificateholders. The
Transferor and the Servicer shall, prior to the sale or
transfer to a third party of any receivable held in its
custody, examine its computer records and other records
to determine that such receivable is not, and does not
include, a Receivable.
[END OF ARTICLE VIII]
ARTICLE IX
INSOLVENCY EVENTS
Section 9.1 Rights upon the Occurrence of an
Insolvency Event.
(a) If PFRFC shall consent or fail to object to
the appointment of a bankruptcy trustee or conservator,
receiver or liquidator in any bankruptcy proceeding or
other insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or
relating to PFRFC of or relating to all or substantially
all of PFRFC's property, or the commencement of an action
seeking a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises
for the appointment of a bankruptcy trustee or
conservator, receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-
up, insolvency, bankruptcy, reorganization,
conservatorship, receivership or liquidation of such
entity's affairs, or notwithstanding an objection by
PFRFC any such action shall have remained undischarged or
unstayed for a period of 60 days; or PFRFC shall admit in
writing its inability to pay its debts generally as they
become due, file, or consent or fail to object (or object
without dismissal of any such filing within 60 days of
such filing) to the filing of, a petition to take
advantage of any applicable bankruptcy, insolvency or
reorganization, receivership or conservatorship statute,
make an assignment for the benefit of its creditors or
voluntarily suspend payment of its obligations (any such
act or occurrence with respect to any Person being an
"Insolvency Event"), the Transferor shall on the day any
such Insolvency Event occurs (the "Appointment Date"),
immediately cease to transfer Principal Receivables to
the Trust and shall promptly give notice to the Trustee
thereof. Notwithstanding any cessation of the transfer
to the Trust of additional Principal Receivables,
Principal Receivables transferred to the Trust prior to
the occurrence of such Insolvency Event, Collections in
respect of such Principal Receivables and Finance Charge
Receivables (whenever created) accrued in respect of such
Principal Receivables shall continue to be a part of the
Trust Assets. Upon the Appointment Date, this Agreement
and the Trust shall terminate, subject to the
liquidation, winding-up, insolvency, bankruptcy,
reorganization and dissolution procedures described
below. Within 15 days of the Appointment Date, the
Trustee shall (i) publish a notice in an Authorized
Newspaper that an Insolvency Event has occurred, that the
Trust has terminated and that the Trustee intends to
sell, dispose of or otherwise liquidate the Receivables
on commercially reasonable terms and in a commercially
reasonable manner and (ii) give notice to
Certificateholders describing the provisions of this
Section and requesting instructions from such Holders.
Unless the Trustee shall have received instructions
within 90 days from the date notice pursuant to clause
(i) above is first published from (x) Holders of Investor
Certificates evidencing more than 50% of the aggregate
unpaid principal amount of each Series or, with respect
to any Series with two or more Classes, of each Class,
(y) the Transferor, and any Holder of a Supplemental
Certificate and any permitted assignee or successor under
Section 7.2, and (z) any other Person specified in any
related Supplement to the effect that such Persons
disapprove of the liquidation of the Receivables and wish
to reconstitute the Trust pursuant to the terms of this
Agreement (as amended in connection with such
reconstitution), the Trustee shall promptly sell, dispose
of or otherwise liquidate the Receivables in a
commercially reasonable manner and on commercially
reasonable terms, which may include the solicitation of
competitive bids. The Trustee may obtain a prior
determination from any such conservator, receiver or
liquidator of the Transferor that the terms and manner of
any proposed sale, disposition or liquidation are
commercially reasonable. The provisions of this Section
9.1 and any provisions in a Supplement regarding an
Insolvency Event shall not be deemed to be mutually
exclusive.
(b) The proceeds from the sale, disposition or
liquidation of the Receivables and any Participation
Interests pursuant to paragraph (a) ("Insolvency
Proceeds") shall be immediately deposited in the
Collection Account. The Trustee shall determine
conclusively the amount of the Insolvency Proceeds which
are deemed to be Finance Charge Receivables and Principal
Receivables, allocating Insolvency Proceeds to Finance
Charge Receivables and Principal Receivables in the same
proportion as the amount of Finance Charge Receivables
and Principal Receivables bear to one another on the
prior Determination Date. The Insolvency Proceeds shall
be allocated and distributed to Investor
Certificateholders in accordance with the terms of each
Supplement.
[END OF ARTICLE IX]
ARTICLE X
SERVICER DEFAULTS
Section 10.1 Servicer Defaults. If any one of
the following events (a "Servicer Default") shall occur
and be continuing:
(a) any failure by the Servicer to make any
payment, transfer or deposit or to give instructions or
to give notice to the Trustee to make such payment,
transfer or deposit on or before the date occurring five
Business Days after the date such payment, transfer or
deposit or such instruction or notice is required to be
made or given, as the case may be, under the terms of
this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to
observe or perform in any material respect any other
covenants or agreements of the Servicer set forth in this
Agreement or any Supplement which has an Adverse Effect
and which continues unremedied for a period of 60 days
after the date on which notice of such failure, requiring
the same to be remedied, shall have been given to the
Servicer by the Trustee, or to the Servicer and the
Trustee by Holders of Investor Certificates evidencing
not less than 10% of the aggregate unpaid principal
amount of all Investor Certificates (or, with respect to
any such failure that does not relate to all Series, 10%
of the aggregate unpaid principal amount of all Series to
which such failure relates); or the Servicer shall assign
or delegate its duties under this Agreement, except as
permitted by Sections 3.1(a), 8.2, 8.5 or 8.7;
(c) any representation, warranty or
certification made by the Servicer in this Agreement or
any Supplement or in any certificate delivered pursuant
to this Agreement or any Supplement shall prove to have
been incorrect when made, which has an Adverse Effect on
the rights of the Investor Certificateholders of any
Series (which determination shall be made without regard
to whether funds are then available pursuant to any
Series Enhancement) and which Adverse Effect continues
for a period of 60 days after the date on which notice
thereof, requiring the same to be remedied, shall have
been given to the Servicer by the Trustee, or to the
Servicer and the Trustee by the Holders of Investor
Certificates evidencing not less than 10% of the
aggregate unpaid principal amount of all Investor
Certificates (or, with respect to any such
representation, warranty or certification that does not
relate to all Series, 10% of the aggregate unpaid
principal amount of all Series to which such
representation, warranty or certification relates); or
(d) the Servicer shall consent to the
appointment of a bankruptcy trustee or conservator or
receiver or liquidator in any bankruptcy proceeding or
other insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or
relating to the Servicer or of or relating to all or
substantially all its property, or a decree or order of a
court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a
bankruptcy trustee or a conservator or receiver or
liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar
proceedings, or the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or the
Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to
take advantage of any applicable bankruptcy, insolvency
or reorganization statute, make any assignment for the
benefit of its creditors or voluntarily suspend payment
of its obligations;
then, in the event of any Servicer Default, so long as
the Servicer Default shall not have been remedied, either
the Trustee, or the Holders of Investor Certificates
evidencing more than 50% of the aggregate unpaid
principal amount of all Investor Certificates, by notice
then given to the Servicer (and to the Trustee if given
by the Investor Certificateholders) (a "Termination
Notice"), may terminate all but not less than all the
rights and obligations of the Servicer as Servicer under
this Agreement; provided, however, if within 60 days of
receipt of a Termination Notice the Trustee does not
receive any bids from Eligible Servicers in accordance
with subsection 10.2(c) to act as a Successor Servicer
and receives an Officer's Certificate of the Transferor
to the effect that the Servicer cannot in good faith cure
the Servicer Default which gave rise to the Termination
Notice, the Trustee shall grant a right of first refusal
to the Transferor which would permit the Transferor at
its option to purchase the Certificateholders' Interest
on the Distribution Date in the next calendar month.
The purchase price for the Certificateholders'
Interest shall be equal to the sum of the amounts
specified therefor with respect to each outstanding
Series in the related Supplement. The Transferor shall
notify the Trustee prior to the Record Date for the
Distribution Date of the purchase if it is exercising
such right of first refusal. If the Transferor exercises
such right of first refusal, the Transferor shall deposit
the purchase price into the Collection Account not later
than 1:00 P.M., New York City time, on such Distribution
Date in immediately available funds. The purchase price
shall be allocated and distributed to Investor
Certificateholders in accordance with the terms of each
Supplement.
After receipt by the Servicer of a Termination
Notice, and on the date that a Successor Servicer is
appointed by the Trustee pursuant to Section 10.2, all
authority and power of the Servicer under this Agreement
shall pass to and be vested in the Successor Servicer (a
"Service Transfer"); and, without limitation, the Trustee
is hereby authorized and empowered (upon the failure of
the Servicer to cooperate) to execute and deliver, on
behalf of the Servicer, as attorney-in-fact or otherwise,
all documents and other instruments upon the failure of
the Servicer to execute or deliver such documents or
instruments, and to do and accomplish all other acts or
things necessary or appropriate to effect the purposes of
such Service Transfer. The Servicer agrees to cooperate
with the Trustee and such Successor Servicer in effecting
the termination of the responsibilities and rights of the
Servicer to conduct servicing hereunder, including the
transfer to such Successor Servicer of all authority of
the Servicer to service the Receivables provided for
under this Agreement, including all authority over all
Collections which shall on the date of transfer be held
by the Servicer for deposit, or which have been deposited
by the Servicer, in the Collection Account, or which
shall thereafter be received with respect to the
Receivables, and in assisting the Successor Servicer. The
Servicer shall within 20 Business Days transfer its
electronic records relating to the Receivables to the
Successor Servicer in such electronic form as the
Successor Servicer may reasonably request and shall
promptly transfer to the Successor Servicer all other
records, correspondence and documents necessary for the
continued servicing of the Receivables in the manner and
at such times as the Successor Servicer shall reasonably
request. To the extent that compliance with this Section
shall require the Servicer to disclose to the Successor
Servicer information of any kind which the Servicer deems
to be confidential, the Successor Servicer shall be
required to enter into such customary licensing and
confidentiality agreements as the Servicer shall deem
reasonably necessary to protect its interests.
Notwithstanding the foregoing, a delay in or
failure of performance referred to in paragraph (a) above
for a period of 10 Business Days after the applicable
grace period or under paragraph (b) or (c) above for a
period of 60 Business Days after the applicable grace
period, shall not constitute a Servicer Default if such
delay or failure could not be prevented by the exercise
of reasonable diligence by the Servicer and such delay or
failure was caused by an act of God or the public enemy,
acts of declared or undeclared war, public disorder,
rebellion or sabotage, epidemics, landslides, lightning,
fire, hurricanes, earthquakes, floods or similar causes.
The preceding sentence shall not relieve the Servicer
from using all commercially reasonable efforts to perform
its obligations in a timely manner in accordance with the
terms of this Agreement and the Servicer shall provide
the Trustee, the Transferor and any Series Enhancer with
an Officer's Certificate giving prompt notice of such
failure or delay by it, together with a description of
its efforts so to perform its obligations.
Section 10.2 Trustee To Act; Appointment of
Successor.
(a) On and after the receipt by the Servicer of
a Termination Notice pursuant to Section 10.1, the
Servicer shall continue to perform all servicing
functions under this Agreement until the date specified
in the Termination Notice or otherwise specified by the
Trustee or until a date mutually agreed upon by the
Servicer and Trustee. The Trustee shall as promptly as
possible after the giving of a Termination Notice appoint
an Eligible Servicer as a successor servicer (the
"Successor Servicer"), and such Successor Servicer shall
accept its appointment by a written assumption in a form
acceptable to the Trustee. In the event that a Successor
Servicer has not been appointed or has not accepted its
appointment at the time when the Servicer ceases to act
as Servicer, the Trustee without further action shall
automatically be appointed the Successor Servicer. The
Trustee may delegate any of its servicing obligations to
an Affiliate or agent in accordance with Sections 3.1(b)
and 8.7. Notwithstanding the foregoing, the Trustee
shall, if it is legally unable so to act, petition a
court of competent jurisdiction to appoint any
established institution qualifying as an Eligible
Servicer as the Successor Servicer hereunder. The
Trustee shall give prompt notice to each Rating Agency
and each Series Enhancer upon the appointment of a
Successor Servicer.
(b) Upon its appointment, the Successor
Servicer shall be the successor in all respects to the
Servicer with respect to servicing functions under this
Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions
hereof, and all references in this Agreement to the
Servicer shall be deemed to refer to the Successor
Servicer.
(c) In connection with any Termination Notice,
the Trustee will review any bids which it obtains from
Eligible Servicers and shall be permitted to appoint any
Eligible Servicer submitting such a bid as a Successor
Servicer for servicing compensation not in excess of the
aggregate Servicing Fees for all Series plus the sum of
the amounts with respect to each Series and with respect
to each Distribution Date equal to any Collections of
Finance Charge Receivables allocable to Investor
Certificateholders of such Series which are payable to
the Holders of the Transferor Certificates after payment
of all amounts owing to the Investor Certificateholders
of such Series with respect to such Distribution Date or
required to be deposited in the applicable Series
Accounts with respect to such Distribution Date and any
amounts required to be paid to any Series Enhancer for
such Series with respect to such Distribution Date
pursuant to the terms of any Enhancement Agreement;
provided, however, that the Holders of the Transferor
Certificates shall be responsible for payment of their
portion of such aggregate Servicing Fees and all other
such amounts in excess of such aggregate Servicing Fees.
Each holder of any of the Transferor's Certificates
agrees that, if the Bank (or any Successor Servicer) is
terminated as Servicer hereunder, the portion of the
Collections in respect of Finance Charge Receivables that
the Transferor is entitled to receive pursuant to this
Agreement or any Supplement shall be reduced by an amount
sufficient to pay the Transferor's share of the
compensation of the Successor Servicer.
(d) All authority and power granted to the
Successor Servicer under this Agreement shall
automatically cease and terminate upon termination of the
Trust pursuant to Section 12.1, and shall pass to and be
vested in the Transferor and, without limitation, the
Transferor is hereby authorized and empowered to execute
and deliver, on behalf of the Successor Servicer, as
attorney-in-fact or otherwise, all documents and other
instruments, and to do and accomplish all other acts or
things necessary or appropriate to effect the purposes of
such transfer of servicing rights. The Successor
Servicer agrees to cooperate with the Transferor in
effecting the termination of the responsibilities and
rights of the Successor Servicer to conduct servicing of
the Receivables. The Successor Servicer shall transfer
its electronic records relating to the Receivables to the
Bank or its designee in such electronic form as it may
reasonably request and shall transfer all other records,
correspondence and documents to it in the manner and at
such times as it shall reasonably request. To the extent
that compliance with this Section shall require the
Successor Servicer to disclose to the Bank information of
any kind which the Successor Servicer deems to be
confidential, the Bank shall be required to enter into
such customary licensing and confidentiality agreements
as the Successor Servicer shall deem necessary to protect
its interests.
Section 10.3 Notification to
Certificateholders. Within five Business Days after the
Servicer becomes aware of any Servicer Default, the
Servicer shall give notice thereof to the Trustee, each
Rating Agency and each Series Enhancer and the Trustee
shall give notice to the Investor Certificateholders.
Upon any termination or appointment of a Successor
Servicer pursuant to this Article, the Trustee shall give
prompt notice thereof to the Investor Certificateholders.
[END OF ARTICLE X]
ARTICLE XI
THE TRUSTEE
Section 11.1 Duties of Trustee.
(a) The Trustee, prior to the occurrence of a
Servicer Default of which a Responsible Officer of the
Trustee has actual knowledge and after the curing of all
Servicer Defaults which may have occurred, undertakes to
perform such duties and only such duties as are
specifically set forth in this Agreement and no implied
duties or covenants by the Trustee shall be read into
this Agreement. If a Servicer Default to the actual
knowledge of a Responsible Officer of the Trustee has
occurred (which has not been cured or waived) the Trustee
shall exercise such of the rights and powers vested in it
by this Agreement and use the same degree of care and
skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) The Trustee may conclusively rely on and
shall be fully protected in acting on, or in refraining
from acting in accord with, any resolution, certificate,
statement, instrument, Officer's Certificate, opinion,
report, notice, request, consent, order, appraisal,
approval, bond or other paper or document furnished to
the Trustee pursuant to this Agreement and believed by it
to be genuine and to have been signed or presented to it
pursuant to this Agreement by the proper party or
parties. The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents,
orders or other instruments furnished to the Trustee
which are specifically required to be furnished pursuant
to any provision of this Agreement, shall examine them to
determine whether they substantially conform to the
requirements of this Agreement. The Trustee shall give
prompt written notice to the Transferor and the Servicer
of any material lack of conformity of any such instrument
to the applicable requirements of this Agreement
discovered by the Trustee which would entitle a specified
percentage of Investor Certificateholders to take any
action pursuant to this Agreement. If within 5 Business
Days the Transferor or the Servicer shall not have cured
such material lack of conformity, the Trustee shall
provide notice of such material lack of conformity to the
Investor Certificateholders.
(c) Subject to paragraph (a), no provision of
this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct;
provided, however, that:
(i) the Trustee shall not be liable for an
error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(ii) the Trustee shall not be liable with
respect to any action taken, suffered or omitted to
be taken by it in good faith in accordance with the
direction of the Holders of Investor Certificates
evidencing more than 50% of the aggregate unpaid
principal amount of all Investor Certificates (or,
with respect to any such action that does not relate
to all Series, 50% of the aggregate unpaid principal
amount of the Investor Certificates of all Series to
which such action relates) relating to the time,
method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under
this Agreement; and
(iii) the Trustee shall not be charged with
knowledge of any failure by the Servicer to comply
with the obligations of the Servicer referred to in
subsection 10.1 (a) or (b) nor with knowledge of a
Pay Out Event or Reinvestment Event unless a
Responsible Officer of the Trustee obtains actual
knowledge of such failure or event or the Trustee
receives written notice of such failure or event
from the Servicer or any Holders of Investor
Certificates evidencing not less than 10% of the
aggregate unpaid principal amount of all Investor
Certificates (or, with respect to any such failure
that does not relate to all Series, 10% of the
aggregate unpaid principal amount of the Investor
Certificates of all Series to which such failure
relates).
(d) The Trustee shall not be required to expend
or risk its own funds or otherwise incur financial
liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that
the repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it,
and none of the provisions contained in this Agreement
shall in any event require the Trustee to perform, or be
responsible for the manner of performance of, any
obligations of the Servicer under this Agreement except
during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties,
powers and privileges of, the Servicer in accordance with
the terms of this Agreement.
(e) Except for actions expressly authorized by
this Agreement, the Trustee shall take no actions
reasonably likely to impair the interests of the Trust in
any Receivable now existing or hereafter created or to
impair the value of any Receivable now existing or
hereafter created.
(f) Except as expressly provided in this
Agreement, the Trustee shall have no power to vary the
corpus of the Trust including by (i) accepting any
substitute obligation for a Receivable initially assigned
to the Trust under Section 2.1 or 2.9, (ii) adding any
other investment, obligation or security to the Trust or
(iii) withdrawing from the Trust any Receivables.
(g) In the event that the Paying Agent or the
Transfer Agent and Registrar shall fail to perform any
obligation, duty or agreement in the manner or on the day
required to be performed by the Paying Agent or the
Transfer Agent and Registrar, as the case may be, under
this Agreement, the Trustee shall be obligated promptly
upon its knowledge thereof to perform such obligation,
duty or agreement in the manner so required.
Section 11.2 Certain Matters Affecting the
Trustee. Except as otherwise provided in Section 11.1:
(a) the Trustee may consult with counsel and
any written advice of counsel or an Opinion of Counsel
shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted by
it hereunder in good faith and in accordance with such
written advice of counsel or an Opinion of Counsel;
(b) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Agreement, or to institute, conduct or defend any
litigation hereunder or in relation hereto, at the
request, order or direction of any of the
Certificateholders, pursuant to the provisions of this
Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be
incurred therein or thereby; provided, however, that
nothing contained herein shall relieve the Trustee of the
obligations, upon the occurrence of a Servicer Default
(which has not been cured or waived) to exercise such of
the rights and powers vested in it by this Agreement, and
to use the same degree of care and skill in their
exercise as a prudent person would exercise or use under
the circumstances in the conduct of his or her own
affairs;
(c) the Trustee shall not be liable for any
action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any
investigation into the facts of matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal,
approval, bond or other paper or document believed by it
to be genuine, unless requested in writing so to do by
Holders of Investor Certificates evidencing more than 25%
of the aggregate unpaid principal amount of all Investor
Certificates (or, with respect to any such matters that
do not relate to all Series, 25% of the aggregate unpaid
principal amount of the Investor Certificates of all
Series to which such matters relate); provided, however,
that if the payment within a reasonable time to the
Trustee of the costs, expenses, or liabilities likely to
be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms
of this Agreement, the Trustee may require reasonable
indemnity against such cost, expense, or liability as a
condition to so proceed;
(e) the Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys or a
custodian, nominee and the Trustee shall not be
responsible for any misconduct or negligence on the part
of any such agent, attorney, custodian or nominee
appointed with due care by it hereunder;
(f) except as may be required by subsection
11.1(a), the Trustee shall not be required to make any
initial or periodic examination of any documents or
records related to the Receivables or the Accounts for
the purpose of establishing the presence or absence of
defects, the compliance by the Transferor with its
representations and warranties or for any other purpose;
(g) whether or not therein expressly so
provided, every provision of this Agreement relating to
the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the
provisions of this Section 11.2;
(h) the Trustee shall have no liability with
respect to the acts or omissions of the Servicer (except
and to the extent the Servicer is the Trustee),
including, acts or omissions in connection with the
servicing, management or administration of Receivables;
calculations made by the Servicer whether or not reported
to the Trustee; and deposits into or withdrawals from any
accounts or funds established pursuant to the terms of
this Agreement; and
(i) in the event that the Trustee is also
acting as Paying Agent or Transfer Agent and Registrar
hereunder, the rights and protections afforded to the
Trustee pursuant to this Article XI shall also be
afforded to such Paying Agent, Transfer Agent and
Registrar.
Section 11.3 Trustee Not Liable for Recitals in
Certificates. The Trustee assumes no responsibility for
the correctness of the recitals contained herein and in
the Certificates (other than the certificate of
authentication on the Certificates). Except as set forth
in Section 11.15, the Trustee makes no representations as
to the validity or sufficiency of this Agreement or any
Supplement or of the Certificates (other than the
certificate of authentication on the Certificates) or of
any Receivable or related document or as to the
perfection or priority of any security interest therein
or as to the efficacy of the Trust. The Trustee shall
not be accountable for the use or application by the
Transferor of any of the Certificates or of the proceeds
of such Certificates, or for the use or application of
any funds paid to the Transferor in respect of the
Receivables or deposited in or withdrawn from the
Collection Account, any Series Accounts or any other
accounts hereafter established to effectuate the
transactions contemplated by this Agreement and in
accordance with the terms of this Agreement.
Section 11.4 Trustee May Own Certificates.
Subject to any restrictions that may otherwise be imposed
by Section 406 of ERISA or Section 4975(e) of the Code,
the Trustee in its individual or any other capacity may
become the owner or pledgee of Investor Certificates with
the same rights as it would have if it were not the
Trustee.
Section 11.5 The Servicer To Pay Trustee's
Fees and Expenses. The Servicer covenants and agrees to
pay to the Trustee from time to time, and the Trustee
shall be entitled to receive, reasonable compensation
(which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express
trust) for all services rendered by it in the execution
of the trust hereby created and in the exercise and
performance of any of the powers and duties hereunder of
the Trustee, and the Servicer will pay or reimburse the
Trustee upon its request for all reasonable expenses
(including, without limitation, expenses incurred in
connection with notices or other communications to
Certificateholders), disbursements and advances incurred
or made by the Trustee in accordance with any of the
provisions of this Agreement or any Enhancement Agreement
(including the reasonable fees and expenses of its
agents, any co-trustee and counsel) except any such
expense, disbursement or advance as may arise from its
negligence or bad faith and except as provided in the
following sentence. If the Trustee is appointed
Successor Servicer pursuant to Section 10.2, the
provisions of this Section shall not apply to expenses,
disbursements and advances made or incurred by the
Trustee in its capacity as Successor Servicer, which
shall be paid out of the Servicing Fee. The Servicer's
covenant to pay the expenses, disbursements and advances
provided for in this Section shall survive the
termination of this Agreement or the earlier resignation
or removal of the Trustee.
Section 11.6 Eligibility Requirements for
Trustee. The Trustee hereunder shall at all times be a
corporation organized and doing business under the laws
of the United States or any state thereof authorized
under such laws to exercise corporate trust powers, have
a net worth of at least $50,000,000, be subject to
supervision or examination by Federal or state authority
and maintain any credit or deposit rating required by any
Rating Agency (which shall be Baa3, in the case of
Xxxxx'x unless otherwise notified, and BBB- in the case
of Standard & Poor's unless otherwise notified) or any
higher credit or deposit rating required in connection
with the issuance of a particular Series. If such
corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for
the purpose of this Section, the combined capital and
surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published. In case at any
time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect
specified in Section 11.7.
Section 11.7 Resignation or Removal of
Trustee.
(a) The Trustee may at any time resign and be
discharged from the trust hereby created by giving
written notice thereof to the Transferor and the
Servicer. Upon receiving such notice of resignation, the
Transferor shall promptly appoint a successor trustee by
written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee
and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment
of a successor trustee.
(b) If at any time the Trustee shall cease to
be eligible in accordance with the provisions of Section
11.6 and shall fail to resign after request therefor by
the Servicer, or if at any time the Trustee shall be
legally unable to act, or shall be adjudged a bankrupt or
insolvent, or if a receiver of the Trustee or of its
property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Servicer may remove
the Trustee and promptly appoint a successor trustee by
written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee so removed
and one copy to the successor trustee.
(c) Any resignation or removal of the Trustee
and appointment of successor trustee pursuant to any of
the provisions of this Section shall not become effective
until acceptance of appointment by the successor trustee
as provided in Section 11.8.
(d) No Trustee under this Agreement shall be
personally liable for any action or omission of any
successor trustee.
Section 11.8 Successor Trustee.
(a) Any successor trustee appointed as provided
in Section 11.7 shall execute, acknowledge and deliver to
the Transferor, to the Servicer and to its predecessor
Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such
successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as
Trustee herein. The predecessor Trustee shall deliver,
at the expense of the Servicer, to the successor trustee
all documents or copies thereof and statements held by it
hereunder; and the Transferor and the predecessor Trustee
shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and
certainly vesting and confirming in the successor trustee
all such rights, powers, duties and obligations.
(b) No successor trustee shall accept
appointment as provided in this Section unless at the
time of such acceptance such successor trustee shall be
eligible under the provisions of Section 11.6.
(c) Notwithstanding any other provisions
herein, the appointment of a successor trustee shall not
be effective unless the Rating Agency Condition shall
have been satisfied.
(d) Upon acceptance of appointment by a
successor trustee as provided in this Section, such
successor trustee shall provide notice of such succession
hereunder to all Certificateholders and the Servicer
shall provide such notice to each Rating Agency and each
Series Enhancer.
Section 11.9 Merger or Consolidation of
Trustee. Any Person into which the Trustee may be merged
or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or
any Person succeeding to the corporate trust business of
the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be eligible
under the provisions of Section 11.6, without the
execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to
the contrary notwithstanding.
Section 11.10 Appointment of Co-Trustee or
Separate Trustee.
(a) Notwithstanding any other provisions of
this Agreement, at any time, for the purpose of meeting
any Requirements of Law of any jurisdiction in which any
part of the Trust may at the time be located, the Trustee
shall have the power and may execute and deliver all
instruments to appoint one or more persons to act as a
co-trustee or co-trustees, or separate trustee or
separate trustees, of all or any part of the Trust, and
to vest in such Person or Persons, in such capacity and
for the benefit of the Certificateholders, such title to
the Trust, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties,
obligations, rights and trusts as the Trustee may
consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the
terms of eligibility as a successor trustee under Section
11.6 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall
be required under Section 11.8.
(b) Every separate trustee and co-trustee
shall, to the extent permitted by law, be appointed and
act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be
conferred or imposed upon and exercised or performed
by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such
act) except to the extent that under any law of any
jurisdiction in which any particular act or acts are
to be performed (whether as Trustee hereunder or as
Successor Servicer) the Trustee shall be incompetent
or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations
(including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction
of the Trustee;
(ii) no trustee hereunder shall be liable by
reason of any act or omission of any other trustee
hereunder; and
(iii) the Trustee may at any time accept the
resignation of or remove any separate trustee or co-
trustee.
(c) Any notice, request or other writing given
to the Trustee shall be deemed to have been given to each
of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee
shall refer to this Agreement and the conditions of this
Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of
appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all
the provisions of this Agreement, specifically including
every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed
with the Trustee and a copy thereof given to the
Servicer.
(d) Any separate trustee or co-trustee may at
any time constitute the Trustee, its agent or
attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under
or in respect of this Agreement on its behalf and in its
name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all its
estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or
successor trustee.
Section 11.11 Tax Returns. In the event the
Trust shall be required to file tax returns, the Servicer
shall prepare or shall cause to be prepared any tax
returns required to be filed by the Trust and shall remit
such returns to the Trustee for signature (if it is
determined that the Trustee is required to sign such
returns) at least five days before such returns are due
to be filed; the Trustee shall promptly sign such returns
and deliver such returns after signature to the Servicer
and such returns shall be filed by the Servicer. The
Servicer in accordance with the terms of each Supplement
shall also prepare or shall cause to be prepared all tax
information required by law to be distributed to Investor
Certificateholders. The Trustee upon request, will
furnish the Servicer with all such information known to
the Trustee as may be reasonably required in connection
with the preparation of all tax returns of the Trust. In
no event shall the Trustee or the Servicer (except as
provided in Section 8.4) be liable for any liabilities,
costs or expenses of the Trust or the Holders of Investor
Certificates arising under any tax law, including without
limitation Federal, state, local or foreign income or
excise taxes or any other tax imposed or measured by
income (or any interest or penalty with respect thereto
or arising from a failure to comply therewith).
Section 11.12 Trustee May Enforce Claims
Without Possession of Certificates. All rights of action
and claims under this Agreement or the Certificates may
be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in
its own name as trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable
benefit of the Certificateholders in respect of which
such judgment has been obtained.
Section 11.13 Suits for Enforcement.
(a) If a Servicer Default shall occur and be
continuing, the Trustee, in its discretion may, subject
to the provisions of Sections 11.1 and 11.14, proceed to
protect and enforce its rights and the rights of the
Certificateholders under this Agreement by suit, action
or proceeding in equity or at law or otherwise, whether
for the specific performance of any covenant or agreement
contained in this Agreement or in aid of the execution of
any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy
as the Trustee, being advised by counsel, shall deem most
effectual to protect and enforce any of the rights of the
Trustee or the Certificateholders.
(b) Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Certificateholder any
plan of reorganization, arrangement, adjustment or
composition affecting the Investor Certificates or the
rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Certificateholder
in any such proceeding.
Section 11.14 Rights of Certificateholders To
Direct Trustee. Except as otherwise provided in the
applicable Supplement, holders of Investor Certificates
evidencing more than 50% of the aggregate unpaid
principal amount of all Investor Certificates (or, with
respect to any remedy, trust or power that does not
relate to all Series, 50% of the aggregate unpaid
principal amount of the Investor Certificates of all
Series to which such remedy, trust or power relates)
shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or
power conferred on the Trustee; provided, however, that,
subject to Section 11.1, the Trustee shall have the right
to decline to follow any such direction if the Trustee
after being advised by counsel determines that the action
so directed may not lawfully be taken, or if a
Responsible Officer or Officers of the Trustee in good
faith shall determine that the proceedings so directed
would be illegal or involve it in personal liability or
be unduly prejudicial to the rights of Investor
Certificateholders not parties to such direction; and
provided further, that nothing in this Agreement shall
impair the right of the Trustee to take any action deemed
proper by the Trustee and which is not inconsistent with
such direction of the Investor Certificateholders.
Section 11.15 Representations and Warranties
of Trustee. The Trustee represents and warrants that:
(i) the Trustee is a banking corporation
organized, existing and in good standing under the
laws of State of New York;
(ii) the Trustee has full power, authority and
right to execute, deliver and perform this Agreement
and each Supplement, and has taken all necessary
action to authorize the execution, delivery and
performance by it of this Agreement and each
Supplement;
(iii) this Agreement and each Supplement has
been duly executed and delivered by the Trustee;
(iv) the Trustee meets the eligibility
requirements set forth in Section 11.6; and
(v) the Trustee will not use any office, place
of business, agents or employees of the Trustee in the
State of Florida to act for, or on behalf of, the Trust
or the Trustee (in its capacity as Trustee of the Trust),
except to the extent that the Trustee first provides an
opinion (at the sole expense of the Transferor) of
counsel satisfactory to the Servicer stating that any
such activities proposed to be carried on in Florida will
not cause the Trust to be subject to any Florida income
or franchise tax.
Section 11.16 Maintenance of Office or Agency.
The Trustee will maintain at its expense an office or
agency (the "Corporate Trust Office") where notices and
demands to or upon the Trustee in respect of the
Certificates and this Agreement may be served in the
State of New York. The Trustee maintains its Corporate
Trust Office at 000 Xxxxxxx Xxxxxx 00X, Xxx Xxxx, XX
00000, as such office and will give prompt notice to the
Servicer and to Investor Certificateholders of any change
in the location of the Certificate Register or any such
office or agency.
[END OF ARTICLE XI]
ARTICLE XII
TERMINATION
Section 12.1 Termination of Trust. The Trust
and the respective obligations and responsibilities of
the Transferor, the Servicer and the Trustee created
hereby (other than the obligation of the Trustee to make
payments to Investor Certificateholders as hereinafter
set forth) shall terminate, except with respect to the
duties described in Section 8.4 and subsection 12.2(b),
upon the earlier of (i) December 31, 2029, (ii) at the
option of the Transferor, the day following the
Distribution Date on which the Invested Amount for each
Series is zero and (iii) the time provided in Section
9.1.
Section 12.2 Final Distribution.
(a) The Servicer shall give the Trustee at
least 30 days' prior notice of the Distribution Date on
which the Investor Certificateholders of any Series or
Class may surrender their Investor Certificates for
payment of the final distribution on and cancellation of
such Investor Certificates (or, in the event of a final
distribution resulting from the application of Section
2.6, 9.1 or 10.1, notice of such Distribution Date
promptly after the Servicer has determined that a final
distribution will occur, if such determination is made
less than 30 days prior to such Distribution Date). Such
notice shall be accompanied by an Officer's Certificate
setting forth the information specified in Section 3.5
covering the period during the then-current calendar year
through the date of such notice. Not later than the
fifth day of the month in which the final distribution in
respect of such Series or Class is payable to Investor
Certificateholders, the Trustee shall provide notice to
Investor Certificateholders of such Series or Class
specifying (i) the date upon which final payment of such
Series or Class will be made upon presentation and
surrender of Investor Certificates of such Series or
Class at the office or offices therein designated, (ii)
the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such payment date is
not applicable, payments being made only upon
presentation and surrender of such Investor Certificates
at the office or offices therein specified (which, in the
case of Bearer Certificates, shall be outside the United
States). The Trustee shall give such notice to the
Transfer Agent and Registrar and the Paying Agent at the
time such notice is given to Investor Certificateholders.
(b) Notwithstanding a final distribution to the
Investor Certificateholders of any Series or Class (or
the termination of the Trust), except as otherwise
provided in this paragraph, all funds then on deposit in
the Collection Account and any Series Account allocated
to such Investor Certificateholders shall continue to be
held in trust for the benefit of such Investor
Certificateholders and the Paying Agent or the Trustee
shall pay such funds to such Investor Certificateholders
upon surrender of their Investor Certificates, if
certificated (and any excess shall be paid in accordance
with the terms of any Enhancement Agreement). In the
event that all such Investor Certificateholders shall not
surrender their Investor Certificates for cancellation
within six months after the date specified in the notice
from the Trustee described in paragraph (a), the Trustee
shall give a second notice to the remaining such Investor
Certificateholders to surrender their Investor
Certificates for cancellation and receive the final
distribution with respect thereto (which surrender and
payment, in the case of Bearer Certificates, shall be
outside the United States). If within one year after the
second notice all such Investor Certificates shall not
have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining such Investor
Certificateholders concerning surrender of their Investor
Certificates, and the cost thereof shall be paid out of
the funds in the Collection Account or any Series Account
held for the benefit of such Investor Certificateholders.
The Trustee and the Paying Agent shall pay to the
Transferor any monies held by them for the payment of
principal or interest that remains unclaimed for two
years. After payment to the Transferor, Investor
Certificateholders entitled to the money must look to the
Transferor for payment as general creditors unless an
applicable abandoned property law designates another
Person.
(c) In the event that the Invested Amount with
respect to any Series is greater than zero on its Series
Termination Date (after giving effect to deposits and
distributions otherwise to be made on such Series
Termination Date), the Trustee will sell or cause to be
sold on such Series Termination Date an amount of
Principal Receivables (or interests therein) equal to
110% of the Invested Amount with respect to such Series
on such Series Termination Date plus related Finance
Charge Receivables (after giving effect to such deposits
and distributions); provided, however, that in no event
shall such amount exceed the product of (i) the
aggregate Principal Receivables on such Series
Termination Date and (ii) a fracton the numerator of
which is the product of (x) the Adjusted Invested Amount
for such Series and (y) the Transferor's Percentage for
such Series and the demoniator of which is the sum of the
numerators with respect to all Series. The proceeds (the
"Termination Proceeds") from such sale shall be
immediately deposited into the Collection Account for
such Series. The Termination Proceeds shall be allocated
and distributed to Investor Certificateholders of such
Series in accordance with the terms of the applicable
Supplement.
Section 12.3 The Transferor's Termination
Rights. Upon the termination of the Trust pursuant to
Section 12.1 and the surrender of the Transferor
Certificates, the Trustee shall sell, assign and convey
to the Holders of the Transferor Certificates or any of
their designees, without recourse, representation or
warranty, all right, title and interest of the Trust in
the Receivables, whether then existing or thereafter
created, all monies due or to become due and all amounts
received with respect thereto (including all moneys then
held in the Collection Account or any Series Account) and
all proceeds thereof, except for amounts held by the
Trustee pursuant to subsection 12.2(b). The Trustee
shall execute and deliver such instruments of transfer
and assignment, in each case without recourse, as shall
be reasonably requested by the Transferor to vest in the
Holders of the Transferor Certificates or any of their
designees all right, title and interest which the Trust
had in the Receivables.
[END OF ARTICLE XII]
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Amendment; Waiver of Past
Defaults.
(a) This Agreement may be amended by the
parties hereto from time to time prior to, or in
connection with, the issuance of the first Series of
Investor Certificates hereunder without the requirement
of any consents or the satisfaction of any conditions set
forth below. This Agreement or any Supplement may be
amended from time to time (including in connection with
the issuance of a Supplemental Certificate, conveyance of
a Participation Interest, allocation of assets pursuant
to Section 4.6, or to change the definition of Monthly
Period, Determination Date or Distribution Date) by the
Servicer, the Transferor and the Trustee, by a written
instrument signed by each of them, without the consent of
any of the Certificateholders, provided that (i) an
Opinion of Counsel for the Transferor (which Opinion of
Counsel may, as to factual matters, rely upon Officer's
Certificates of the Transferor or the Servicer) is
addressed and delivered to the Trustee, dated the date of
any such amendment, to the effect that the conditions
precedent to any such amendment have been satisfied, (ii)
the Transferor shall have delivered to the Trustee an
Officer's Certificate, dated the date of any such
Amendment, stating that the Transferor reasonably
believes that such amendment will not have an Adverse
Effect and (iii) the Rating Agency Condition shall have
been satisfied with respect to any such amendment.
(b) This Agreement or any Supplement may also
be amended from time to time (including in connection
with the issuance of a Supplemental Certificate) by the
Servicer, the Transferor and the Trustee, with the
consent of the Holders of Investor Certificates
evidencing not less than 66-2/3% of the aggregate unpaid
principal amount of the Investor Certificates of all
affected Series for which the Transferor has not
delivered an Officer's Certificate stating that there is
no Adverse Effect, for the purpose of adding any
provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or any Supplement
or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such
amendment shall (i) reduce in any manner the amount of or
delay the timing of any distributions to (changes in Pay
Out Events or Reinvestment Events that decrease the
likelihood of the occurrence thereof shall not be
considered delays in the timing of distributions for
purposes of this clause) be made to Investor
Certificateholders or deposits of amounts to be so
distributed or the amount available under any Series
Enhancement without the consent of each affected
Certificateholder, (ii) change the definition of or the
manner of calculating the interest of any Investor
Certificateholder without the consent of each affected
Investor Certificateholder, (iii) reduce the aforesaid
percentage required to consent to any such amendment
without the consent of each Investor Certificateholder,
or (iv) adversely affect the rating of any Series or
Class by any Rating Agency without the consent of the
Holders of Investor Certificates of such Series or Class
evidencing not less than 66-2/3% of the aggregate unpaid
principal amount of the Investor Certificates of such
Series or Class; provided, further however, that the
Transferor shall have delivered to the Trustee a Tax
Opinion to the Trustee with respect to any such amendment
prior to the effectiveness thereof.
(c) Promptly after the execution of any such
amendment or consent (other than an amendment pursuant to
paragraph (a)), the Trustee shall furnish notification of
the substance of such amendment to each Investor
Certificateholder, and the Servicer shall furnish
notification of the substance of such amendment to each
Rating Agency and each Series Enhancer.
(d) It shall not be necessary for the consent
of Investor Certificateholders under this Section to
approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the
execution thereof by Investor Certificateholders shall be
subject to such reasonable requirements as the Trustee
may prescribe.
(e) Notwithstanding anything in this Section to
the contrary, no amendment may be made to this Agreement
or any Supplement which would adversely affect in any
material respect the interests of any Series Enhancer
without the consent of such Series Enhancer.
(f) Any Supplement executed in accordance with
the provisions of Section 6.3 shall not be considered an
amendment to this Agreement for the purposes of this
Section.
(g) The Holders of Investor Certificates
evidencing more than 66-2/3% of the aggregate unpaid
principal amount of the Investor Certificates of each
Series or, with respect to any Series with two or more
Classes, of each Class (or, with respect to any default
that does not relate to all Series, 66-2/3% of the
aggregate unpaid principal amount of the Investor
Certificates of each Series to which such default relates
or, with respect to any such Series with two or more
Classes, of each Class) may, on behalf of all
Certificateholders, waive any default by the Transferor
or the Servicer in the performance of their obligations
hereunder and its consequences, except the failure to
make any distributions required to be made to Investor
Certificateholders or to make any required deposits of
any amounts to be so distributed. Upon any such waiver
of a past default, such default shall cease to exist, and
any default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No
such waiver shall extend to any subsequent or other
default or impair any right consequent thereon except to
the extent expressly so waived.
(h) The Trustee may, but shall not be obligated
to, enter into any such amendment which affects the
Trustee's rights, duties or immunities under this
Agreement or otherwise. In connection with the execution
of any amendment hereunder, the Trustee shall be entitled
to receive the Opinion of Counsel described in subsection
13.2(d).
Section 13.2 Protection of Right, Title and
Interest to Trust.
(a) The Servicer shall cause this Agreement,
all amendments and supplements hereto and all financing
statements and continuation statements and any other
necessary documents covering the Certificateholders' and
the Trustee's right, title and interest to the Trust to
be promptly recorded, registered and filed, and at all
times to be kept recorded, registered and filed, all in
such manner and in such places as may be required by law
fully to preserve and protect the right, title and
interest of the Certificateholders and the Trustee
hereunder to all property comprising the Trust. The
Servicer shall deliver to the Trustee file-stamped copies
of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as
available following such recording, registration or
filing. The Transferor shall cooperate fully with the
Servicer in connection with the obligations set forth
above and will execute any and all documents reasonably
required to fulfill the intent of this paragraph.
(b) Within 30 days after the Transferor makes
any change in its name, identity or corporate structure
which would make any financing statement or continuation
statement filed in accordance with paragraph (a)
seriously misleading within the meaning of Section 9-
402(7) (or any comparable provision) of the UCC, such
Transferor shall give the Trustee notice of any such
change and shall file such financing statements or
amendments as may be necessary to continue the perfection
of the Trust's security interest or ownership interest in
the Receivables and the proceeds thereof.
(c) The Transferor and the Servicer shall give
the Trustee prompt notice of any relocation of any office
from which it services Receivables or keeps records
concerning the Receivables or of its principal executive
office and whether, as a result of such relocation, the
applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or
continuation statement or of any new financing statement
and shall file such financing statements or amendments as
may be necessary to perfect or to continue the perfection
of the Trust's security interest in the Receivables and
the proceeds thereof. The Transferor and the Servicer
shall at all times maintain each office from which it
services Receivables and its principal executive offices
within the United States.
(d) The Servicer shall deliver to the Trustee
(i) upon the execution and delivery of each amendment of
this Agreement or any Supplement, an Opinion of Counsel
to the effect specified in Exhibit E-1; (ii) on each date
specified in subsection 2.9(c)(ix) with respect to
Aggregate Additions to be designated as Accounts, an
Opinion of Counsel substantially in the form of Exhibit
E-2, (iii) semiannually, with respect to any New Accounts
included as Accounts, an Opinion of Counsel substantially
in the form of Exhibit E-2, (iv) on each Addition Date on
which any Participation Interests are to be included in
the Trust pursuant to subsection 2.9(a) or (b), an
Opinion of Counsel covering the same substantive legal
issues addressed by Exhibits E-1 and E-2 but conformed to
the extent appropriate to relate to Participation
Interests; and (v) on or before March 31 of each year,
beginning with March 31, 1998, an Opinion of Counsel
substantially in the form of Exhibit E-3.
Section 13.3 Limitation on Rights of
Certificateholders.
(a) The death or incapacity of any Investor
Certificateholder shall not operate to terminate this
Agreement or the Trust, nor shall such death or
incapacity entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court
for a partition or winding up of the Trust, nor otherwise
affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Investor Certificateholder shall have
any right to vote (except as expressly provided in this
Agreement) or in any manner otherwise control the
operation and management of the Trust, or the obligations
of the parties hereto, nor shall any Investor
Certificateholder be under any liability to any third
person by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Investor Certificateholder shall have
any right by virtue of any provisions of this Agreement
to institute any suit, action or proceeding in equity or
at law upon or under or with respect to this Agreement,
unless such Investor Certificateholder previously shall
have made, and unless the Holders of Investor
Certificates evidencing more than 50% of the aggregate
unpaid principal amount of all Investor Certificates (or,
with respect to any such action, suit or proceeding that
does not relate to all Series, 50% of the aggregate
unpaid principal amount of the Investor Certificates of
all Series to which such action, suit or proceeding
relates) shall have made, a request to the Trustee to
institute such action, suit or proceeding in its own name
as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days
after such request and offer of indemnity, shall have
neglected or refused to institute any such action, suit
or proceeding; it being understood and intended, and
being expressly covenanted by each Investor
Certificateholder with every other Investor
Certificateholder and the Trustee, that no one or more
Investor Certificateholders shall have any right in any
manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect,
disturb or prejudice the rights of the holders of any
other of the Investor Certificates, or to obtain or seek
to obtain priority over or preference to any other such
Investor Certificateholder, or to enforce any right under
this Agreement, except in the manner herein provided and
for the equal, ratable and common benefit of all Investor
Certificateholders except as otherwise expressly provided
in this Agreement. For the protection and enforcement of
the provisions of this Section, each and every Investor
Certificateholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Section 13.4 Governing Law. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS, AND OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
Section 13.5 Notices; Payments.
(a) All demands, notices, instructions,
directions and communications (collectively, "Notices")
under this Agreement shall be in writing and shall be
deemed to have been duly given if personally delivered
at, mailed by registered mail, return receipt requested,
or sent by facsimile transmission (i) in the case of the
Transferor, to Partners First Receivables Funding
Corporation, at ______________________-- Attention:
_________ (facsimile no. ___________), with a copy to:
______________________, Attention: ________________
(facsimile no. _____________), (ii) in the case of the
Servicer, to Partners First National Bank, at
_________________________--, Attention: _______________,
(facsimile no. __________), (iii) in the case of the
Trustee, the Paying Agent or Transfer Agent and
Registrar, to The Bank of New York at 000 Xxxxxxx Xxxxxx
00X, Xxx Xxxx, XX 00000, Attention: ____________________
(facsimile no. __________________), (iv) in the case of
Xxxxx'x, to 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: ABS Xxxxxxxxxx Xxxxxxxxxx, 0xx Xxxxx
(facsimile no. (000) 000-0000), (v) in the case of
Standard & Poor's, to 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Asset Backed Group, 15th Floor
(facsimile no. (000) 000-0000), (vi) in the case of
Fitch, to Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx,
Attention: Structured Finance Department (facsimile no.
(000) 000-0000), and (vii) to any other Person as
specified in any Supplement; or, as to each party, at
such other address or facsimile number as shall be
designated by such party in a written notice to each
other party.
(b) Any Notice required or permitted to be
given to a Holder of Registered Certificates shall be
given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate
Register. No Notice shall be required to be mailed to a
Holder of Bearer Certificates or Coupons but shall be
given as provided below. Any Notice so mailed within the
time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the
Investor Certificateholder receives such Notice. In
addition, (a) if and so long as any Series or Class is
listed on the Luxembourg Stock Exchange and such Exchange
shall so require, any Notice to Investor
Certificateholders shall be published in an Authorized
Newspaper of general circulation in Luxembourg within the
time period prescribed in this Agreement and (b) in the
case of any Series or Class with respect to which any
Bearer Certificates are outstanding, any Notice required
or permitted to be given to Investor Certificateholders
of such Series or Class shall be published in an
Authorized Newspaper within the time period prescribed in
this Agreement.
Section 13.6 Severability of Provisions. If
any one or more of the covenants, agreements, provisions
or terms of this Agreement shall for any reason
whatsoever be held invalid, then such provisions shall be
deemed severable from the remaining provisions of this
Agreement and shall in no way affect the validity or
enforceability of the remaining provisions or of the
Certificates or the rights of the Certificateholders.
Section 13.7 Certificates Nonassessable and
Fully Paid. It is the intention of the parties to this
Agreement that the Certificateholders shall not be
personally liable for obligations of the Trust, that the
interests in the Trust represented by the Certificates
shall be nonassessable for any losses or expenses of the
Trust or for any reason whatsoever and that the
Certificates upon authentication and delivery thereof by
the Trustee pursuant to Section 6.2 are and shall be
deemed fully paid.
Section 13.8 Further Assurances. The
Transferor and the Servicer agree to do and perform, from
time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by
the Trustee more fully to effect the purposes of this
Agreement, including the execution of any financing
statements or continuation statements relating to the
Receivables for filing under the provisions of the UCC of
any applicable jurisdiction.
Section 13.9 Nonpetition Covenant.
Notwithstanding any prior termination of this Agreement,
the Investor Certificateholders, the Servicer, the
Trustee, the Transferor, the Paying Agent, the
Authenticating Agent, the Transfer Agent, the Registrar,
the Series Enhancers and each Holder of a Supplemental
Certificate shall not, prior to the date which is one
year and one day after the termination of this Agreement
with respect to the Trust or the Transferor, acquiesce,
petition or otherwise invoke or cause the Trust or the
Transferor to invoke the process of any Governmental
Authority for the purpose of commencing or sustaining a
case against the Trust or the Transferor under any
Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the
Trust or the Transferor or any substantial part of its
property or ordering the winding-up or liquidation of the
affairs of the Trust or the Transferor.
Section 13.10 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the
part of the Trustee or the Certificateholders, any right,
remedy, power or privilege under this Agreement shall
operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege
under this Agreement preclude any other or further
exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers
and privileges provided under this Agreement are
cumulative and not exhaustive of any rights, remedies,
powers and privileges provided by law.
Section 13.11 Counterparts. This Agreement
may be executed in two or more counterparts (and by
different parties on separate counterparts), each of
which shall be an original, but all of which together
shall constitute one and the same instrument.
Section 13.12 Third-Party Beneficiaries. This
Agreement will inure to the benefit of and be binding
upon the parties hereto, the Certificateholders, any
Series Enhancer and their respective successors and
permitted assigns. Except as otherwise expressly
provided in this Agreement (including Section 7.4), no
other Person will have any right or obligation hereunder.
Section 13.13 Actions by Certificateholders.
(a) Wherever in this Agreement a provision is
made that an action may be taken or a Notice given by
Certificateholders, such action or Notice may be taken or
given by any Certificateholder, unless such provision
requires a specific percentage of Certificateholders.
(b) Any Notice, request, authorization,
direction, consent, waiver or other act by the Holder of
a Certificate shall bind such Holder and every subsequent
Holder of such Certificate and of any Certificate issued
upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done
or omitted to be done by the Trustee or the Servicer in
reliance thereon, whether or not notation of such action
is made upon such Certificate.
Section 13.14 Rule 144A Information. For so
long as any of the Investor Certificates of any Series or
Class are "restricted securities" within the meaning of
Rule 144(a)(3) under the Act, each of the Transferor, the
Trustee, the Servicer and any Series Enhancer agree to
cooperate with each other to provide to any Investor
Certificateholders of such Series or Class and to any
prospective purchaser of Certificates designated by such
an Investor Certificateholder, upon the request of such
Investor Certificateholder or prospective purchaser, any
information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth
in Rule 144A(d)(4) under the Act.
Section 13.15 Merger and Integration. Except
as specifically stated otherwise herein, this Agreement
sets forth the entire understanding of the parties
relating to the subject matter hereof, and all prior
understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended,
waived or supplemented except as provided herein.
Section 13.16 Headings. The headings herein
are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any
provision hereof.
END OF ARTICLE XIII
IN WITNESS WHEREOF, the Transferor, the
Servicer and the Trustee have caused this Pooling and
Servicing Agreement to be duly executed by their
respective officers as of the day and year first above
written.
CREDIT CARD RECEIVABLES
FUNDING CORPORATION,
Transferor,
by _____________________________
Name:
Title:
PARTNERS FIRST NATIONAL
BANK
Servicer,
by _____________________________
Name:
Title:
THE BANK OF NEW YORK,
Trustee
by ____________________________
Name:
Title:
