ASSIGNMENT NO. 2 OF RECEIVABLES IN ADDITIONAL ACCOUNTS
------------------------------------------------------
ASSIGNMENT NO. 2 OF RECEIVABLES IN ADDITIONAL ACCOUNTS (this
"Assignment"), dated as of March 2, 1998, by and between Bank of America
National Association, a national banking association, as Transferor and Servicer
("Bank of America"), and U.S. Bank National Association (formerly known as First
Bank National Association) (the "Trustee"), pursuant to the Pooling and
Servicing Agreement referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Bank of America and the Trustee are parties to the
Pooling and Servicing Agreement, dated as of July 19, 1996 (hereinafter as such
agreement may have been, or may from time to time be, amended, supplemented or
otherwise modified, the "Pooling and Servicing Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, Bank
of America wishes to designate Additional Accounts of Bank of America to be
included as Accounts and to convey the Receivables of such Additional Accounts,
whether now existing or hereafter created, to the Trust as part of the corpus of
the Trust (as each such term is defined in the Pooling and Servicing Agreement);
and
WHEREAS, the Trustee is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, Bank of America and the Trustee hereby agree
as follows:
1. Defined Terms. All terms defined in the Pooling and
--------------
Servicing Agreement and used herein shall have such defined meanings when used
herein, unless otherwise defined herein.
"Addition Cut-Off Date" shall mean, with respect to the
-----------------------
Additional Accounts transferred hereby, February 28, 1998.
"Addition Date" shall mean, with respect to the Additional
--------------
Accounts transferred hereby, March 2, 1998.
"Notice Date" shall mean, with respect to the Additional
------------
Accounts designated hereby, February 10, 1998 (which shall be a date on
or prior to the fifth Business Day prior to the Addition Date with
respect to additions pursuant to subsection 2.06(a) of the Pooling and
Servicing Agreement and the tenth Business Day prior to the Addition
Date with respect to additions pursuant to subsection 2.06(b) of the
Pooling and Servicing Agreement).
2. Designation of Additional Accounts. Bank of America does
-----------------------------------
hereby deliver herewith to the Trustee a computer file or microfiche list
containing a true and complete list of each MasterCard and VISA account which
was designated on the Addition Cut-Off Date to be an Additional Account (the
"Additional Accounts"), such accounts being identified by account number and by
the amount of Receivables in such accounts at the beginning of the day on the
Addition Cut-Off Date. Such list shall be marked as Schedule 1 to this
Assignment and, as of the Addition Date, shall be incorporated into and made a
part of this Assignment.
3. Conveyance of Receivables.
-------------------------
(a) Bank of America does hereby transfer, assign,
set-over and otherwise convey to the Trust for the benefit of the
Certificateholders, without recourse on and after the Addition Date,
all right, title and interest of Bank of America in and to the
Receivables existing as of the close of business on the Addition
Cut-Off Date and thereafter created in the Additional Accounts
designated hereby, all monies due or to become due with respect thereto
(including all Finance Charge Receivables) and all proceeds of such
Receivables, Insurance Proceeds relating to such Receivables and the
proceeds thereof.
(b) In connection with such transfer, assignment,
set-over and conveyance, Bank of America agrees to record and file, at
its own expense, financing statements with respect to the Receivables
now existing and hereafter created in the Additional Accounts
designated hereby (which may be a single financing statement with
respect to each location for filing with respect to all such
Receivables) for the transfer of accounts as defined in Section 9-106
of the UCC as in effect in the applicable jurisdiction meeting the
requirements of applicable state law in such manner and such
jurisdictions as are necessary to perfect the assignment of such
Receivables to the Trust, and to deliver a file-stamped copy of such
financing statements or other evidence of such filing (which may, for
purposes of this Section 3, consist of telephone confirmation of such
filing) to the Trustee on or prior to the date of this Agreement.
(c) In connection with such transfer, Bank of America
further agrees, at its own expense, on or prior to the date of this
Assignment to indicate in its computer files that Receivables created
in connection with the Additional Accounts designated hereby have been
transferred to the Trust pursuant to this Assignment for the benefit of
the Certificateholders.
(d) If, and to the extent that, the transfer provided
hereby is not deemed to be a sale or if for any reason any Receivable
is held to be property of Bank of America, then Bank of America hereby
grants to the Trustee a first priority perfected security interest in
all of Bank of America's right, title and interest, whether now owned
or hereafter acquired, in, to and under the Receivables existing as of
the close of business on the Addition Cut-Off Date and thereafter
created in the Additional Accounts, all monies due or to become due
with respect to such Receivables (including all Finance Charge
Receivables), all proceeds of such Receivables and all Insurance
Proceeds relating to such Receivables, and all proceeds of any of the
foregoing and, in such case, this Agreement shall constitute a security
agreement under applicable law.
4. Acceptance by Trustee. The Trustee hereby acknowledges its
---------------------
acceptance on behalf of the Trust for the benefit of the Certificateholders of
all right, title and interest previously held by Bank of America in and to the
Receivables now existing and hereafter created, and declares that it shall
maintain such right, title and interest, upon the Trust herein set forth, for
the benefit of all Certificateholders.
5. Representations and Warranties of Bank of America. Bank of
-------------------------------------------------
America hereby represents and warrants to the Trust as of the Addition Date:
(a) Legal Valid and Binding Obligation. This
----------------------------------------
Assignment constitutes a legal, valid and binding obligation of Bank of
America enforceable against Bank of America 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 the rights of creditors of national banking
associations and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in
equity).
(b) Eligibility of Accounts and Receivables. Each
-----------------------------------------
Additional Account designated hereby is an Eligible Account as of the
Addition Cut-Off Date, and each Receivable in such Additional Account
is an Eligible Receivable as of the Addition Cut-Off Date.
(c) Selection Procedures. No selection procedures
---------------------
believed by Bank of America to be materially adverse to the interests
of the Investor Certificateholders were utilized in selecting the
Additional Accounts designated hereby from the available Eligible
Accounts in the Identified Pool.
(d) Insolvency. Bank of America is not insolvent and,
----------
after giving effect to the conveyance set forth in Section 3 of this
Assignment, will not be insolvent.
(e) Security Interest. This Assignment constitutes
------------------
either: (i) a valid transfer and assignment to the Trust of all right,
title and interest of Bank of America in and to Receivables existing as
of the beginning of the day on the Addition Cut-Off Date, and hereafter
created from time to time arising in connection with the Additional
Accounts designated hereby, all monies due or to become due with
respect to such Receivables (including all Finance Charge Receivables),
all amounts received with respect thereto and Insurance Proceeds
relating to such Receivables and all proceeds (as defined in the UCC as
in effect in the applicable jurisdiction) of any of the foregoing and
Insurance Proceeds relating thereto will be held by the Trust free and
clear of any Lien of any Person claiming through or under Bank of
America or any of its Affiliates, except for (A) Liens permitted under
subsection 2.05(b) of the Pooling and Servicing Agreement, (B) the
interest of Bank of America as Holder of the Transferor Certificate and
(C) Bank of America's right to receive interest accruing on, and
investment earnings in respect of, the Finance Charge Account and the
Principal Account, or any Series Account as provided in the Pooling and
Servicing Agreement and any related Supplement or (ii) a grant of a
security interest (as defined in the UCC as in effect in the applicable
jurisdiction), in such property to the Trust, which is enforceable with
respect to then existing Receivables of the Additional Accounts, all
monies due or to become due with respect to such Receivables (including
all Finance Charge Receivables), all amounts received with respect
thereto and Insurance Proceeds relating to such Receivables and all
proceeds (as defined in the UCC as in effect in the applicable
jurisdiction) of any of the foregoing upon the conveyance of such
Receivables to the Trust, and which will be enforceable with respect to
the Receivables thereafter created in respect of Additional Accounts
relating to Bank of America conveyed designated hereby, and Insurance
Proceeds relating to such Receivables and all proceeds (as defined in
the UCC as in effect in the applicable jurisdiction) of any of the
foregoing upon such creation; and (iii) if the Assignment constitutes
the grant of a security interest to the Trust in such property, upon
the filing of the financing statements as described in Section 3 of
this Assignment with respect to such Additional Accounts designated
hereby and in the case of the Receivables in such Additional Accounts
thereafter created, all monies due or to become due with respect to
such Receivables (including all Finance Charge Receivables), all
amounts received with respect thereto, and Insurance Proceeds relating
to such Receivables and all proceeds (as defined in the UCC as in
effect in the applicable jurisdiction) of any of the foregoing, upon
such creation, the Trust shall have a first priority perfected security
interest in such property (subject to Section 9-306 of the UCC as in
effect in the applicable jurisdiction), except for Liens permitted
under subsection 2.05(b) of the Pooling and Servicing Agreement.
6. Conditions Precedent. The acceptance by the Trustee set
---------------------
forth in Section 4 and the amendment of the Pooling and Servicing Agreement set
forth in Section 7 are subject to the satisfaction, on or prior to the Addition
Date, of the following conditions precedent:
(a) Officer's Certificate. Bank of America shall have
---------------------
delivered to the Trustee a certificate of a Vice President or more
senior officer substantially in the form of Schedule 2 hereto,
certifying that (i) all requirements set forth in Section 2.06 of the
Pooling and Servicing Agreement for designating Additional Accounts and
conveying the Principal Receivables of such Account, whether now
existing or hereafter created, have been satisfied and (ii) each of the
representations and warranties made by Bank of America in Section 5 is
true and correct as of the Addition Date. The Trustee may conclusively
rely on such Officer's Certificate, shall have no duty to make
inquiries with regard to the matters set forth therein, and shall incur
no liability in so relying.
(b) Opinion of Counsel. Bank of America shall have
------------------
delivered to the Trustee an Opinion of Counsel with respect to the
Additional Accounts designated hereby substantially in the form of
Exhibit E to the Pooling and Servicing Agreement.
(c) Confirmation from Rating Agencies. Bank of
------------------------------------
America shall have received notice from Fitch, Xxxxx'x and Standard &
Poor's that the inclusion of such accounts as Additional Accounts will
not result in the reduction or withdrawal of its then existing rating
of any Series of Investor Certificates then issued and outstanding.
(d) Additional Information. Bank of America shall
-----------------------
have delivered to the Trustee such information as was reasonably
requested by the Trustee to satisfy itself as to the accuracy of the
representation and warranty set forth in subsection 5(d) to this
Agreement.
7. Amendment of the Pooling and Servicing Agreement. The
----------------------------------------------------
Pooling and Servicing Agreement is hereby amended to provide that all references
therein to the "Pooling and Servicing Agreement," to "this Agreement" and
"herein" shall be deemed from and after the Addition Date to be a dual reference
to the Pooling and Servicing Agreement as supplemented by this Assignment.
Except as expressly amended hereby, all of the representations, warranties,
terms, covenants and conditions to the Pooling and Servicing Agreement shall
remain unamended and shall continue to be, and shall remain, in full force and
effect in accordance with its terms and except as expressly provided herein
shall not constitute or be deemed to constitute a waiver of compliance with or a
consent to noncompliance with any term or provisions of the Pooling and
Servicing Agreement.
8. Counterparts. This Assignment 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.
9. Governing Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of New York, without regard
to its conflict of law provisions.
IN WITNESS WHEREOF, the undersigned have caused this Assignment of
Receivables in Additional Accounts to be duly executed and delivered by their
respective duly authorized officers on the day and year first above written.
BANK OF AMERICA NATIONAL ASSOCIATION,
as Transferor and Servicer
By: /s/ XXXXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: SVP & Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION
(formerly known as First Bank National Association),
as Trustee
By: /s/ XXXX XXXXX
-------------------------------------
Name: Xxxx XxXxx
Title: Vice President
[Signature Page to Assignment No. 2 of Receivables in Additional Accounts]
