EXHIBIT 4.1
FLEET CREDIT CARD MASTER TRUST II
RECEIVABLES PURCHASE AGREEMENT
between
FLEET BANK (RI), NATIONAL ASSOCIATION
and
FLEET CREDIT CARD FUNDING, LLC
Dated as of January 1, 2002
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND INTERPRETATIONS............................ 1
Section 1.01. Definitions.......................................... 1
Section 1.02. Other Definitional Provisions........................ 9
Section 1.03. Interpretation....................................... 9
ARTICLE II PURCHASE AND CONVEYANCE OF RECEIVABLES..................... 10
Section 2.01. Purchase............................................. 10
Section 2.02. Addition of Accounts................................. 11
Section 2.03. Removal and Deletion of Accounts..................... 13
Section 2.04. Allocated Interchange................................ 13
ARTICLE III CONSIDERATION AND PAYMENT.................................. 14
Section 3.01. Purchase Price....................................... 14
Section 3.02. Adjustments to Purchase Price........................ 14
ARTICLE IV REPRESENTATIONS AND WARRANTIES............................. 15
Section 4.01. Representations and Warranties of Fleet (RI) Relating
to Fleet (RI)........................................ 15
Section 4.02. Representations and Warranties of Fleet (RI) Relating
to the Agreement and the Receivables................. 16
Section 4.03. Representations and Warranties of FCCF............... 18
ARTICLE V COVENANTS.................................................. 20
Section 5.01. Covenants of Fleet (RI).............................. 20
Section 5.02. Account Allocations.................................. 21
ARTICLE VI REPURCHASE OBLIGATION...................................... 22
Section 6.01. Reassignment of Ineligible Receivables............... 22
Section 6.02. Reassignment of Other Receivables.................... 22
ARTICLE VII CONDITIONS PRECEDENT....................................... 24
Section 7.01. Conditions to FCCF's Purchase Obligations............ 24
Section 7.02. Conditions Precedent to Fleet (RI)'s Obligations..... 24
ARTICLE VIII TERM AND PURCHASE TERMINATION.............................. 25
Section 8.01. Term................................................. 25
Section 8.02. Purchase Termination................................. 25
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TABLE OF CONTENTS
CONTINUED
PAGE
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ARTICLE IX MISCELLANEOUS PROVISIONS................................... 26
Section 9.01. Amendment............................................ 26
Section 9.02. Governing Law........................................ 26
Section 9.03. Notices.............................................. 26
Section 9.04. Severability of Provisions........................... 26
Section 9.05. Assignment; Merger or Consolidation of, or Assumption
of the Obligations of Fleet (RI)..................... 27
Section 9.06. Acknowledgement and Agreement of Fleet (RI).......... 27
Section 9.07. Further Assurances................................... 28
Section 9.08. No Waiver; Cumulative Remedies....................... 28
Section 9.09. Counterparts......................................... 28
Section 9.10. Binding; Third-Party Beneficiaries................... 28
Section 9.11. Merger and Integration............................... 28
Section 9.12. Headings............................................. 28
Section 9.13. Schedules and Exhibits............................... 28
Section 9.14. Survival of Representations and Warranties........... 28
Section 9.15. Nonpetition Covenant................................. 29
EXHIBIT A................................................................. 31
FORM OF SUPPLEMENTAL CONVEYANCE........................................... 31
EXHIBIT B................................................................. 1
Opinion of Counsel On Designation of Additional Accounts.................. 1
Schedule 1................................................................ 1
LIST OF ACCOUNTS.......................................................... 1
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RECEIVABLES PURCHASE AGREEMENT, dated as of January 1, 2002 by and
between Fleet Bank (RI), National Association, a national banking association
(together with its permitted successors and assigns, "FLEET (RI)"), and FLEET
CREDIT CARD FUNDING, LLC, a Delaware limited liability company (together with
its permitted successors and assigns, "FCCF").
W I T N E S S E T H:
WHEREAS, FCCF desires to purchase, from time to time, Receivables
(hereinafter defined) existing or arising in designated credit card accounts
owned by Fleet (RI);
WHEREAS, Fleet (RI) desires to sell and assign, from time to time,
certain Receivables to FCCF upon the terms and conditions hereinafter set forth;
WHEREAS, it is contemplated that the Receivables purchased hereunder
will be transferred by FCCF to the Trustee under the terms of the Pooling and
Servicing Agreement, and the Trust created under the Pooling and Servicing
Agreement will issue certificates representing ownership interests in the
Receivables (each term as hereinafter defined); and
WHEREAS, Fleet (RI) agrees that all representations, warranties,
covenants and agreements made by Fleet (RI) herein with respect to Fleet (RI),
with respect to the Accounts and with respect to the Receivables shall also be
for the benefit of the Trust, the Trustee and the Certificateholders.
NOW, THEREFORE, it is hereby agreed by and between Fleet (RI) and
FCCF as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
Section 1.01. Definitions. The following words and phrases shall
have the following meanings when used in this Agreement:
"Account" shall mean (a) each MasterCard(1) and VISA(1) account
established pursuant to a Cardholder Agreement between Fleet (RI) and any Person
and identified by account number and by the Receivable balance in the Account
Schedule delivered to FCCF in connection with the Initial Purchase Date and (b)
each Additional Account. "Account" shall also mean each account into which an
Account is transferred (a "Transferred Account"); provided that (i) such
transfer is made in accordance with the Credit Card Guidelines and (ii) such
Transferred Account can be traced or identified, by reference to or by way of an
Account Schedule delivered to FCCF, as an account into which an Account has been
transferred. The term "Account" shall refer to an Additional Account only from
and after the Addition Date with respect thereto. The term "Account" shall not
include any Deleted Account or any Account all
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(1) MasterCard and VISA are registered trademarks of MasterCard International
Incorporated and of VISA USA, Inc., respectively.
the Receivables in which are reassigned to Fleet (RI) in accordance with the
terms of this Agreement.
"Account Schedule" shall mean a computer file or microfiche list
containing a true and complete list of all Accounts specifying for each such
Account, as of the Initial Purchase Date, in the case of the Existing Accounts,
and the applicable Addition Cut-Off Date, in the case of Additional Accounts,
(A) its account number, (B) the aggregate amount outstanding in such Account and
(C) the aggregate amount of Principal Receivables in such Account. Such list as
supplemented from time to time shall be marked as Schedule 1 to this Agreement,
shall be delivered by Fleet (RI) to FCCF, and is hereby incorporated into and
made a part of this Agreement. Fleet (RI) shall delete from Schedule 1 any
Account that, pursuant to the terms of this Agreement, is no longer an Account.
"Additional Account" shall mean each consumer revolving credit card
account or other revolving credit account established pursuant to a Cardholder
Agreement, which account is designated pursuant to subsection 2.02(a) of this
Agreement to be included as an Account and is identified on an Account Schedule
delivered pursuant to subsection 2.02(b)(v).
"Addition Cut-Off Date" shall mean, with respect to any Additional
Accounts, the date specified in the related Supplemental Conveyance.
"Addition Date" shall mean with respect to Additional Accounts, the
date on which the Receivables in such Additional Accounts are first conveyed to
FCCF pursuant to subsection 2.01(a).
"Adverse Effect" shall mean, with respect to any action, that such
action will (a) result in the occurrence of a Pay Out Event under the Pooling
and Servicing Agreement or (b) materially adversely affect FCCF's right, title
and interest in the Receivables, the characteristics of the Receivables, the
amount or timing of the Collections or the ability of FCCF to collect
Receivables or to perform its obligations under this Agreement and the Pooling
and Servicing Agreement.
"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 the meanings correlative to
the foregoing.
"Allocated Interchange" for each calendar month means the amount of
Interchange determined as provided in Section 2.04.
"Applicable Trust Cut-Off Date" shall mean, with respect to accounts
which were designated to the Trust under the terms of the Pooling and Servicing
Agreement prior to the Initial Purchase Date, means (i) October 31, 1993 with
respect to each Initial Account and (ii) with respect to each account added to
the Trust after December 9, 1993 and before the Initial Purchase Date, the
cut-off date for such account under the terms of the Pooling and Servicing
Agreement.
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"Business Day" shall mean any day other than (a) a Saturday or
Sunday or (b) any other day on which banks in New York, New York, Philadelphia,
Pennsylvania, or Claymont, Delaware or any other State in which the principal
executive offices of Fleet (RI) or FCCF are located, are authorized or obligated
by law, executive order or governmental decree to be closed.
"Cardholder Agreement" shall mean with respect to an Account, the
agreements between Fleet (RI) and the related Obligor, governing the terms and
conditions of such Account, as such agreements may be amended, modified or
otherwise changed from time to time.
"Cash Advance Fees" shall have the meaning specified in the
Cardholder Agreement applicable to each Account for cash advance fees or similar
terms.
"Certificateholders" shall mean the holders of certificated or
uncertificated interests in the Trust.
"Collections" shall mean all payments received in respect of the
Receivables, in the form of cash, checks, wire transfers, electronic transfers,
ATM transfers or other form of payment and shall include Allocated Interchange
and shall include Recoveries with respect to the Receivables.
"Contractually Delinquent" with respect to an Account, shall mean an
Account as to which the required minimum payment set forth on the related
billing statement has not been received by the due date thereof.
"Conveyance" shall have the meaning specified in Subsection 2.01(a).
"Credit Card Guidelines" shall mean the written policies and
procedures of Fleet (RI) relating to the operation of its consumer revolving
lending business, including, without limitation, the written policies and
procedures for determining the creditworthiness of credit card account customers
and the extension of credit to credit card account customers, and relating to
the maintenance of credit card accounts and collection of receivables with
respect thereto, as such policies and procedures may be amended, modified, or
otherwise changed from time to time.
"Debtor Relief Laws" shall mean (a) the United States Bankruptcy
Code and (b) all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, suspension
of payments, readjustment of debt, marshalling of assets, assignment for the
benefit of creditors and similar debtor relief laws from time to time in effect
in any jurisdiction affecting the rights of creditors generally or the rights of
creditors of national banks.
"Defaulted Receivables" shall mean all Receivables which are charged
off as uncollectible in accordance with the Credit Card Guidelines and the
Servicer's customary and usual servicing procedures for servicing consumer
revolving credit card and other revolving credit account receivables comparable
to the Receivables. A Receivable shall become a Defaulted Receivable on the day
on which such Receivable is recorded as charged off on the Servicer's computer
master file of consumer revolving credit card accounts but, in any event, shall
be deemed a Defaulted Receivable no later than the day the related Account
becomes 186
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days Contractually Delinquent unless the Obligor cures such default by making a
partial payment which satisfies the criteria for curing delinquencies set forth
in the applicable Credit Card Guidelines.
"Deleted Account" shall mean any Removed Account as to which Fleet
(RI) has received notice from the Servicer that all Receivables owned by FCCF
that arise in such Removed Account have either been paid or charged off pursuant
to the Pooling and Servicing Agreement.
"Dollar," "Dollars," "$" or "U.S. $" shall mean United States
Dollars.
"Eligible Account" shall mean a revolving credit card account owned
by Fleet (RI), which (i) if it is an Existing Account had the following
characteristics as of the Applicable Trust Cut-Off Date and (ii) if it is an
Additional Account has the following characteristics as of the Addition Cut-Off
Date:
(a) is in existence and maintained by Fleet (RI) or, with respect
to Existing Accounts was, as of the Applicable Trust Cut-Off Date, in
existence and maintained by Fleet (RI) or a predecessor entity as Seller
as of the Applicable Trust Cut-Off Date;
(b) is payable in Dollars;
(c) except as provided in (h) below, has not been identified as an
account the credit card or cards with respect to which have been reported
to the Seller with respect to the Existing Accounts or to Fleet (RI) with
respect to Additional Accounts as having been lost or stolen;
(d) the Obligor of which has provided, as his or her billing
address, an address located in the United States (or its territories or
possessions or a military address);
(e) has an Obligor who has not been identified (i) by the Seller
with respect to the Existing Accounts as an employee of such Seller or of
any Affiliate of the Seller or (ii) by Fleet (RI) with respect to the
Additional Accounts as an employee of Fleet (RI) or of any Affiliate of
Fleet (RI);
(f) except as provided in (h) below, does not have any Receivables
which are Defaulted Receivables;
(g) except as provided in (h) below, does not have any Receivables
which have been identified by the Seller with respect to Existing Accounts
or by Fleet (RI) with respect to the Additional Accounts or by the
relevant Obligor, as having been incurred as a result of fraudulent use of
any related credit card; and
(h) meets the requirements set forth above except for any one or
more of provisions (c), (f) or (g) and (i) the balance of all Receivables
included in such Account is reflected on the books and records of Fleet
(RI) (and is treated for purposes of this Agreement) as "zero", and (ii)
charging privileges with respect to such Account have been canceled in
accordance with the relevant Credit Card Guidelines.
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"Eligible Receivable" shall mean a Receivable:
(a) which has arisen under an Eligible Account;
(b) which was created in compliance with all Requirements of Law
applicable to Fleet (RI) and pursuant to a Cardholder Agreement which
complies with all Requirements of Law applicable to Fleet (RI);
(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 or given by Fleet (RI) in
connection with the creation of such Receivable or the execution, delivery
and performance by it of its obligations, if any, under the related
Cardholder Agreement have been duly obtained or given and are in full
force and effect as of such date of creation of such Receivable;
(d) as to which, at the time of its transfer to FCCF, FCCF will
have good and marketable title thereto, free and clear of all Liens;
(e) which has been the subject of a valid transfer and assignment
from Fleet (RI) to FCCF of all of Fleet (RI)'s right, title and interest
therein;
(f) which at the time of transfer to FCCF is the legal, valid and
binding payment obligation of the Obligor thereon, legally enforceable
against such Obligor in accordance with its terms, except as such
enforceability may be limited by applicable Debtor Relief Laws and except
as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity);
(g) which constitutes an "account" as defined in Article 9 of the
UCC;
(h) which, at the time of its transfer to FCCF, has not been
waived or modified except as permitted in accordance with the Credit Card
Guidelines and which waiver or modification is reflected in Fleet (RI)'s
computer file of revolving credit card accounts;
(i) which, at the time of its transfer to FCCF, is not subject to
any right of rescission, setoff, counterclaim or any other defense of the
Obligor (including the defense of usury), other than defenses arising out
of applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws 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 equity) or as to which the
Servicer would be required by Section 3.09 of the Pooling and Servicing
Agreement to make an adjustment;
(j) as to which, at the time of its transfer to FCCF, Fleet (RI)
has satisfied all obligations to be fulfilled by Fleet (RI) at the time it
is transferred to FCCF; and
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(k) as to which, at the time of its transfer to FCCF, Fleet (RI)
has not taken any action which, or failed to take any action the omission
of which, would, at the time of its transfer to FCCF, impair the rights of
FCCF therein.
"Existing Account" shall mean an Account which is listed on the
Account Schedule delivered to FCCF by Fleet (RI) in connection with the Initial
Purchase Date.
"Finance Charge Receivables" shall mean all amounts billed to the
Obligors on any Account in respect of (i) Periodic Finance Charges, (ii) annual
membership fees and annual service charges, (iii) Late Fees, (iv) Overlimit Fees
and (v) Cash Advance Fees.
"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.
"Ineligible Receivables" shall have the meaning specified in
subsection 6.01(a) of this Agreement.
"Initial Account" shall mean each account identified on the list
delivered to the Trustee on or prior to December 9, 1993 by the initial Seller
under the Pooling and Servicing Agreement.
"Initial Closing Date" shall mean December 9, 1993.
"Initial Purchase Date" shall mean January 1, 2002.
"Insolvency Event" shall have the meaning specified in Section 8.02.
"Insurance Proceeds" shall mean any amounts recovered by Fleet (RI)
or the Servicer pursuant to any credit insurance policies covering any Obligor
with respect to Receivables under such Obligor's Account.
"Interchange" shall mean all interchange fees payable to Fleet (RI),
in its capacity as credit card issuer, through VISA or MasterCard in connection
with cardholder charges for goods, services and cash advances.
"Late Fees" shall have the meaning specified in the Cardholder
Agreement applicable to each Account for late fees or similar terms.
"Lien" shall mean any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, participation or equity interest, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever, including any conditional sale or other title retention agreement,
or any financing lease having substantially the same economic effect as any of
the foregoing.
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"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, with respect to Fleet (RI), a
certificate delivered to FCCF signed by the Chairman of the Board, the
President, any Vice President or the Treasurer of Fleet (RI), and, with respect
to FCCF a certificate delivered to Fleet (RI) signed by the President, any Vice
President or the Treasurer of FCCF.
"Overlimit Fees" shall have the meaning specified in the Cardholder
Agreement applicable to each Account for overlimit fees or similar terms if such
fees are provided for with respect to such Account.
"Pay Out Event" shall have the meaning set forth in the Pooling and
Servicing Agreement.
"Periodic Finance Charges" shall have the meaning specified in the
Cardholder Agreement applicable to each Account for finance charges (due to
periodic rate) or any similar term.
"Person" shall mean any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, governmental entity or any other entity of
any nature.
"Pooling and Servicing Agreement" shall mean the pooling and
servicing agreement dated as of December 1, 1993 and amended and restated as of
January 1, 2002, among FCCF, as Transferor, Fleet (RI), as Servicer, and Bankers
Trust Company, as Trustee and as thereafter further amended and supplemented.
"Principal Receivables" shall mean all Receivables other than
Finance Charge Receivables.
"Purchase Price" shall have the meaning set forth in subsection
3.01(a).
"Purchase Price Adjustment" shall have the meaning specified in
Section 3.02.
"Purchased Assets" shall have the meaning set forth in subsection
2.01(a).
"Rating Agency" shall mean with respect to any outstanding series or
class of certificates issued by the Trust, each statistical rating agency
selected by FCCF or prior to the Initial Purchase Date, a Seller to rate the
investor certificates of such series or class, as specified in the related
Supplement.
"Rating Agency Condition" shall mean, with respect to any action,
that each Rating Agency shall have notified FCCF in writing that such action
will not result in a reduction or withdrawal of the rating of any outstanding
securities issued under the Pooling and Servicing Agreement with respect to
which it is a Rating Agency.
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"Receivable" shall mean any amount owing by the Obligor under an
Account from time to time, including amounts owing for Principal Receivables and
Finance Charge Receivables.
"Recoveries" shall mean all amounts, including Insurance Proceeds,
received with respect to Receivables which have previously become Defaulted
Receivables.
"Removed Account" shall mean any Account as to which Fleet (RI) has
received notice from the Servicer that such Account is a "Removed Account" as
defined in the Pooling and Servicing Agreement.
"Requirements of Law" with respect to any Person shall mean the
certificate of incorporation or formation or articles of association and
by-laws, limited liability company agreement, or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether Federal, state or local (including, without limitation, usury laws, the
Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of
Governors of the Federal Reserve System).
"S&P" shall mean Standard & Poor's Ratings Services or its
successors.
"Seller" shall mean Fleet (RI) as Seller of Receivables under the
terms of the Pooling and Servicing Agreement prior to the Initial Purchase Date
and each other entity which was designated as a Seller under the Pooling and
Servicing Agreement at any time prior to the Initial Purchase Date.
"Servicer" shall mean the entity acting as Servicer under the
Pooling and Servicing Agreement.
"Supplement" shall mean a supplement to the Pooling and Servicing
Agreement executed and delivered in connection with a series of investor
certificates issued under the Pooling and Servicing Agreement and all amendments
and supplements thereto.
"Supplemental Conveyance" shall have the meaning set forth in
subsection 2.02(b)(vi).
"Tax Opinion" shall mean, with respect to any action, a written
opinion of counsel to the effect that, (a) for Federal income tax purposes, such
action will not adversely affect the tax characterization as debt of those
securities issued by the Trust that were characterized as debt at the time of
their issuance, (b) following such action the Trust will not be deemed to be an
association (or publicly traded partnership) taxable as a corporation and (c)
such action will not cause or constitute an event in which gain or loss would be
recognized by any holder of a security issued by the Trust.
"Transfer Restriction Event" shall mean that Fleet (RI) is unable
for any reason to transfer Receivables to FCCF in accordance with the provisions
of this Agreement, including by reason of the application of the provisions of
Section 8.02 or any order of any Governmental Authority.
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"Trust" shall mean the Fleet Credit Card Master Trust II, as created
by the Pooling and Servicing Agreement.
"Trustee" shall mean the Trustee under the Pooling and Servicing
Agreement.
"UCC" shall mean the Uniform Commercial Code as in effect in the
applicable jurisdiction.
Section 1.02. Other Definitional Provisions.
The words "HEREOF," "HEREIN," "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; and Section, subsection,
Schedule and Exhibit references contained in this Agreement are references to
Sections, subsections, Schedules and Exhibits in or to this Agreement unless
otherwise specified.
Section 1.03. Interpretation. All references in this Agreement to
the transfer or assignment of some or all of the Purchased Assets to the Trustee
or the payment of amounts to the Trustee shall mean that such transfer,
assignment or payment is made to the Trustee on behalf of the
Certificateholders.
[END OF ARTICLE I]
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ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase.
(a) In consideration of the payment of the Purchase Price as
provided herein, Fleet (RI) does hereby sell, transfer, assign, set over and
otherwise convey to FCCF (collectively, the "CONVEYANCE"), without recourse
except as provided herein, all of its right, title and interest, whether now
owned or hereafter acquired, in, to and under the Receivables existing at the
close of business on the Initial Purchase Date, in the case of Receivables
existing and arising in the Existing Accounts, and at the close of business on
each Addition Cut-Off Date, in the case of Receivables existing and arising in
the Additional Accounts, and in each case thereafter created from time to time
in the Existing Accounts and the Additional Accounts, all Allocated Interchange
and Recoveries with respect to such Receivables, all moneys due or to become due
and all amounts received or receivable with respect thereto, all Collections
with respect thereto and all proceeds (including, without limitation, "proceeds"
as defined in the UCC) thereof. Such property shall constitute the "PURCHASED
ASSETS." The Receivables arising after the Initial Purchase Date in the Existing
Accounts and the related Purchased Assets shall be and hereby are sold by Fleet
(RI) and purchased by FCCF on the date such Receivables arise and the Purchase
Price shall be paid as provided in subsection 3.01(a) of this Agreement. The
Receivables existing in Additional Accounts at the close of business on the
related Addition Cut-Off Date and the Receivables arising after the Addition
Cut-Off Date and on or before the Addition Date and the related Purchased Assets
shall be and hereby are sold by Fleet (RI) and purchased by FCCF on the related
Addition Date and the Purchase Price shall be paid as provided in subsection
3.01(a) of this Agreement. The Receivables arising after such Addition Date in
such Additional Accounts and the related Purchased Assets shall be and hereby
are sold by Fleet (RI) and purchased by FCCF on the date such Receivables arise
and the Purchase Price shall be paid as provided in subsection 3.01(a) of this
Agreement.
(b) Fleet (RI) shall record and file, at its own expense,
financing statements (and continuation statements and amendments when
applicable) with respect to the Purchased Assets 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 Conveyance of the Purchased
Assets to FCCF, and shall deliver a file stamped copy of each such financing
statement to FCCF on or prior to the Initial Purchase Date, in the case of
Purchased Assets relating to the Existing Accounts, and (if any additional
filing is so necessary) the applicable Addition Date, in the case of Purchased
Assets relating to Additional Accounts.
(c) Fleet (RI) shall, at its own expense, (a) on or prior to (x)
the execution of this Agreement, in the case of the Existing Accounts or (y) the
applicable Addition Date, in the case of Additional Accounts indicate in the
appropriate computer files that all Receivables created in connection with the
Accounts have been conveyed to FCCF pursuant to this Agreement and FCCF has
transferred the Receivables to the Trustee pursuant to the Pooling and Servicing
Agreement by including in such computer files the code "02," "11," "12," "13,"
"14," "15," "16," "17," "20," "22" or "30" through "80" (or any other code
specified in a Supplemental Conveyance) in the PORTF_CD field of such computer
files, and (b) at the time of execution of
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this Agreement and on or prior to each Addition Date, as applicable, to deliver
to FCCF and the Trustee an Account Schedule containing a true and complete list
of all Accounts. Fleet (RI) agrees that it will maintain the Account Schedule as
a true and complete list of all Accounts and will supplement or amend the
Account Schedule on each Addition Date and periodically, as needed, to remove
Deleted Accounts and add Transferred Accounts. Fleet (RI) agrees not to alter
the codes or field referenced in clause (a) above in this subsection with
respect to any Account during the term of this Agreement unless and until such
Account is no longer an Account or unless and until (i) Fleet (RI) shall give
written notice of any such alteration to FCCF, such written notice to be as of
the date of its receipt by FCCF incorporated into and made part of this
Agreement, and (ii) Fleet (RI) has taken such action as is necessary or
advisable to cause the interest of FCCF in the Purchased Assets to continue to
be perfected and of first priority; except that Fleet (RI) may, without
complying with the foregoing provisions, alter the code of any Account from
"02," "11," "12," "14," "15," "16," "17," "20," "22," or "30" through "80" to
"13."
(d) The parties hereto intend that the conveyance of Fleet (RI)'s
right, title and interest in and to the Purchased Assets shall constitute an
absolute sale, conveying good title free and clear of any liens, claims,
encumbrances or rights of others from Fleet (RI) to FCCF. It is the intention of
the parties hereto that the arrangements with respect to the Purchased Assets
shall for all purposes, including for accounting purposes, constitute a purchase
and sale of such Purchased Assets and not a loan. In the event, however, that it
were to be determined that the transactions evidenced hereby constitute a loan
and not a purchase and sale, it is the intention of the parties hereto that this
Agreement shall constitute a security agreement under applicable law, and that
Fleet (RI) shall be deemed to have granted, and Fleet (RI) does hereby grant, to
FCCF a first priority perfected security interest in all of Fleet (RI)'s right,
title and interest, whether now owned or hereafter acquired, in, to and under
the Purchased Assets to secure the obligations of Fleet (RI) hereunder.
(e) To the extent that Fleet (RI) retains any interest in the
Purchased Assets, Fleet (RI) hereby grants to the Trustee a security interest in
all of Fleet (RI)'s right, title and interest, whether now owned or hereafter
acquired, in, to and under the Purchased Assets, to secure the performance of
all of the obligations of Fleet (RI) hereunder and under the Pooling and
Servicing Agreement. With respect to such security interest and such collateral,
the Trustee shall have all of the rights that it has under the Pooling and
Servicing Agreement. The Trustee shall also have all of the rights of a secured
creditor under the UCC.
Section 2.02. Addition of Accounts.
(a)(i) If, from time to time, FCCF becomes obligated to designate
Additional Accounts pursuant to Subsection 2.08(a) of the Pooling and
Servicing Agreement, then FCCF may, at its option, give Fleet (RI) written
notice thereof on or before the tenth Business Day prior to the Addition
Date therefor, and upon receipt of such notice Fleet (RI) shall on or
before the Addition Date, designate sufficient Eligible Accounts to be
included as Additional Accounts as requested by FCCF.
11
(ii) Additionally, Fleet (RI) may, at its option, designate newly
originated or acquired Eligible Accounts or any other Eligible Accounts to
be included as Additional Accounts.
(b) On the Addition Date with respect to any designation of
Additional Accounts, such Additional Accounts shall become Accounts and FCCF
shall purchase Fleet (RI)'s right, title and interest in, to and under the
Receivables in such Additional Accounts (as of the Addition Cut-Off Date) and
the related Purchased Assets, subject to the satisfaction of the following
conditions on such Addition Date:
(i) Fleet (RI) has delivered to FCCF copies of UCC financing
statements covering such Additional Accounts, if necessary to perfect
FCCF's interest in the Receivables arising therein and the related
Purchased Assets;
(ii) as of each of the Addition Cut-Off Date and the Addition Date,
no Insolvency Event with respect to Fleet (RI) shall have occurred nor
shall the transfer of the Receivables arising in the Additional Accounts
and the other related Purchased Assets have been made in contemplation of
the occurrence thereof;
(iii) Fleet (RI) shall have delivered to FCCF an Officer's
Certificate, dated the Addition Date, stating that (x) as of the
applicable Addition Cut-Off Date, the Additional Accounts are all Eligible
Accounts, (y) the conditions set forth in clauses (i) and (ii) above have
been satisfied and (z) Fleet (RI) reasonably believes that (A) the sale by
Fleet (RI) to FCCF of the Receivables arising in the Additional Accounts
will not, based on the facts known to such officer at the time of such
addition, then or thereafter cause a Pay Out Event under the Pooling and
Servicing Agreement and (B) in the case of Additional Accounts, no
selection procedure was utilized by Fleet (RI) which would result in a
selection of Additional Accounts (from among the available Eligible
Accounts owned by Fleet (RI)) that would be materially adverse to the
interests of FCCF as of the Addition Date;
(iv) Fleet (RI) shall have delivered to FCCF, the Trustee and each
Rating Agency an Opinion of Counsel, which counsel shall be outside
counsel, dated the Addition Date, which opinion shall be in substantially
the form of Exhibit B hereto (except that the opinions described in
paragraphs 1 and 2 of such Exhibit B need not be delivered to S&P);
provided that, if FCCF agrees to such later date, the Opinion of Counsel
described in this subsection 2.02(b)(iv) shall not be required to be
delivered on the Addition Date, but shall be delivered to FCCF, the
Trustee and each applicable Rating Agency within 30 days after the
Addition Date;
(v) Fleet (RI) shall have delivered to FCCF the Account Schedule;
and
(vi) With respect to such Additional Accounts, Fleet (RI) and FCCF
shall have entered into a duly executed written assignment substantially
in the form of Exhibit A (the "SUPPLEMENTAL CONVEYANCE").
12
Section 2.03. Removal and Deletion of Accounts.
(a) If an Account becomes a Removed Account, then Fleet (RI) shall
stop selling Principal Receivables arising in such Removed Account to FCCF
effective on the Business Day (the "STOP DATE") after the date such Account
becomes a Removed Account. Notwithstanding the cessation of the sale to FCCF of
additional Principal Receivables arising in such Removed Account, Principal
Receivables sold to FCCF prior to the Stop Date, Collections in respect of such
Principal Receivables, Finance Charge Receivables whenever created that accrue
in respect of such Principal Receivables, and Collections in respect of such
Finance Charge Receivables, shall continue to be property of FCCF available for
transfer by FCCF to the Trustee pursuant to the Pooling and Servicing Agreement.
To the extent that it is not clear to Fleet (RI) whether collections relate to a
Principal Receivable that was sold to FCCF or to a Principal Receivable that
Fleet (RI) did not sell to FCCF, Fleet (RI) shall allocate payments on each such
Removed Account with respect to the principal balance of such Removed Account
first to the oldest principal balance of such Removed Account.
(b) On and after the Stop Date for a Removed Account, Fleet (RI)
may ▇▇▇▇ its books and records to indicate that such Account is a Removed
Account, but Fleet (RI) shall not (i) alter the codes or fields referenced in
clause (a) of subsection 2.01(c) with respect to such Removed Account unless and
until such Account becomes a Deleted Account or Fleet (RI) has taken such action
as is necessary or advisable to cause the interest of FCCF in the Purchased
Assets to continue to be perfected and of first priority, or (ii) delete such
Removed Account from SCHEDULE 1 hereto or any Account Schedule.
(c) Once a Removed Account becomes a Deleted Account, Fleet (RI)
shall promptly delete such Deleted Account from SCHEDULE 1 hereto and shall
indicate in its computer files that such Deleted Account is no longer an
Account.
Section 2.04. Allocated Interchange. For each calendar month,
beginning with January 2002, Fleet (RI) shall calculate the amount of the
Allocated Interchange as described in this Section. The Allocated Interchange
for each calendar month shall be paid by Fleet (RI) to FCCF in immediately
available funds on or before the Business Day immediately preceding the
fifteenth day of the next calendar month or if any such fifteenth day is not a
Business Day, on or before the Business Day immediately preceding the first
Business Day succeeding such fifteenth day. For each calendar month the
"Allocated Interchange" shall be an amount equal to the product of (a) the total
amount of Interchange paid or payable to Fleet (RI) during that calendar month
and (b) a fraction the numerator of which is the aggregate amount of cardholder
charges for goods and services in the Accounts with respect to such calendar
month and the denominator of which is the aggregate amount of cardholder charges
for goods and services in all MasterCard and VISA consumer revolving credit card
accounts owned by Fleet (RI) with respect to such calendar month.
[END OF ARTICLE II]
13
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price.
(a) The "PURCHASE PRICE" (i) for Receivables existing in the
Existing Accounts as of the close of business on the Initial Purchase Date and
the other Purchased Assets related thereto shall be an amount mutually agreed
between Fleet (RI) and FCCF as the fair market value of such Receivables and the
related Purchased Assets and (ii) for the Receivables (including Receivables in
Additional Accounts) and the related Purchased Assets conveyed to FCCF under
this Agreement which come into existence after the Initial Purchase Date shall
be an amount equal to 100% of the aggregate balance of the Principal Receivables
so conveyed adjusted to reflect such factors as Fleet (RI) and FCCF mutually
agree will result in a Purchase Price determined to be the fair market value of
such Receivables and the related Purchased Assets. The Purchase Price for
Receivables in the Existing Accounts as of the Initial Purchase Date and the
related Purchased Assets shall be paid on the date of execution of this
Agreement and the Purchase Price for all other Receivables and the related
Purchased Assets conveyed to FCCF under this Agreement shall be payable on a
date (the "PURCHASE PRICE PAYMENT DATE") mutually agreed by Fleet (RI) and FCCF,
but no later than the second Business Day following the calendar month in which
such Receivables and the related Purchased Assets are conveyed by Fleet (RI) to
FCCF.
(b) The Purchase Price shall be paid by FCCF in cash.
(c) Notwithstanding any other provision of this Agreement, Fleet
(RI) shall not be obligated to continue to sell Receivables to FCCF to the
extent that Fleet (RI) is not paid the Purchase Price therefor as provided
herein.
Section 3.02. Adjustments to Purchase Price. The Purchase Price
shall be reduced on each Purchase Price Payment Date (a "PURCHASE PRICE
ADJUSTMENT") with respect to any Receivable previously conveyed to FCCF by Fleet
(RI) which Receivable Fleet (RI) or the Servicer adjusts downward because of a
rebate, refund, unauthorized charge or billing error to an account holder, or
because such Receivable was created in respect of merchandise which was refused
or returned by an account holder, or if Fleet (RI) or the Servicer (other than
by Servicer error) otherwise adjusts downward the amount of any Receivable
without receiving Collections therefor or charging off such amount as
uncollectible, or if the Receivables are adjusted by Fleet (RI) or the Servicer
because a Receivable or Receivables were discovered as having been created
through a fraudulent or counterfeit charge. The amount of such reduction shall
equal the reduction in the principal balance of such Receivable resulting from
the occurrence of such event. In the event that a reduction pursuant to this
Section 3.02 causes the Purchase Price to be a negative number, Fleet (RI)
agrees that, not later than 1:00 p.m., New York City time, on the following
Business Day, Fleet (RI) shall pay or cause to be paid to FCCF an amount equal
to the amount by which the Purchase Price Adjustment exceeds the unadjusted
Purchase Price.
[END OF ARTICLE III]
14
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of Fleet (RI) Relating
to Fleet (RI).
(a) Representations and Warranties. Fleet (RI) hereby represents
and warrants to, and agrees with, FCCF as of the Initial Purchase Date and each
Addition Date, that:
(i) Organization. Fleet (RI) is a national banking association
duly organized and validly existing in good standing under the laws of the
jurisdiction of its organization and has full corporate power, authority
and legal right to own its properties and conduct its consumer revolving
lending business as such properties are presently owned and such business
is presently conducted, and to execute, deliver and perform its
obligations under this Agreement and each Supplemental Conveyance.
(ii) Due Qualification. Fleet (RI) is duly qualified to do business
and is in good standing as a foreign corporation (or is exempt from such
requirements), and has obtained all necessary licenses and approvals with
respect to Fleet (RI), in each jurisdiction in which failure to so qualify
or to obtain such licenses and approvals would render any Cardholder
Agreement relating to an Account or any Receivable transferred to FCCF by
Fleet (RI) unenforceable by Fleet (RI), FCCF or any transferee or agent
thereof or would have a material adverse effect on the interests of FCCF.
(iii) Due Authorization. The execution, delivery and performance of
this Agreement and each Supplemental Conveyance by Fleet (RI) and the
consummation by Fleet (RI) of the transactions provided for in this
Agreement and any Supplemental Conveyance executed on such Addition Date
have been duly authorized by Fleet (RI) by all necessary corporate action
on the part of Fleet (RI) and this Agreement and such Supplemental
Conveyance will remain, from the time of its execution, an official record
of Fleet (RI).
(iv) No Conflict. The execution and delivery by Fleet (RI) of this
Agreement, any Supplemental Conveyance executed on such Addition Date, the
performance by Fleet (RI) of the transactions contemplated by this
Agreement and such Supplemental Conveyance and the fulfillment by Fleet
(RI) of the terms hereof and thereof will not 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 Fleet (RI) is a party or by which it or any of its
properties are bound.
(v) No Violation. The execution and delivery by Fleet (RI) of this
Agreement, any Supplemental Conveyance executed on such Addition Date, the
performance by Fleet (RI) of the transactions contemplated by this
Agreement and such Supplemental Conveyance and the fulfillment by Fleet
(RI) of the terms hereof and thereof will not conflict with or violate any
Requirements of Law applicable to Fleet (RI).
1
(vi) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of Fleet (RI), threatened, against Fleet
(RI), before any court, regulatory body, administrative agency, or other
tribunal or governmental instrumentality (i) asserting the invalidity of
this Agreement or any Supplemental Conveyance executed on such Addition
Date, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or such Supplemental Conveyance, (iii)
seeking any determination or ruling that, in the reasonable judgment of
Fleet (RI), would materially and adversely affect the performance by Fleet
(RI) of its obligations under this Agreement or such Supplemental
Conveyance or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Agreement or such Supplemental Conveyance.
(vii) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any governmental
body or official required in connection with the execution and delivery by
Fleet (RI) of this Agreement and any Supplemental Conveyance executed on
such Addition Date, the performance by Fleet (RI) of the transactions
contemplated by this Agreement and such Supplemental Conveyance and the
fulfillment by Fleet (RI) of the terms hereof and thereof, have been
obtained.
(viii) Insolvency. No Insolvency Event with respect to Fleet (RI)
has occurred and the transfer of the Purchased Assets to FCCF has not been
made in contemplation of the occurrence thereof.
(ix) FDIC Insurance. Fleet (RI) is an insured institution for
purposes of the Federal Deposit Insurance Act.
(b) Notice of Breach. The representations and warranties of Fleet
(RI) set forth in this Section 4.01 shall survive the transfer and assignment by
Fleet (RI) of the Purchased Assets to FCCF. Upon discovery by Fleet (RI) or FCCF
of a breach of any of the representations and warranties by Fleet (RI) set forth
in this Section 4.01, the party discovering such breach shall give prompt
written notice to the others and to the Trustee. Fleet (RI) agrees to cooperate
with FCCF in attempting to cure any such breach.
Section 4.02. Representations and Warranties of Fleet (RI) Relating
to the Agreement and the Receivables.
(a) Representations and Warranties. Fleet (RI) hereby represents
and warrants to FCCF and to the Trust as of the Initial Purchase Date and, with
respect to Additional Accounts, as of the related Addition Date that:
(i) this Agreement and any Supplemental Conveyance executed on
such Addition Date constitutes a legal, valid and binding obligation of
Fleet (RI) enforceable against Fleet (RI) in accordance with its terms,
except as such enforceability may be limited by applicable Debtor Relief
Laws and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity);
16
(ii) as of the Initial Purchase Date and as of the related Addition
Date with respect to Additional Accounts, Schedule 1 to this Agreement, as
supplemented on such date, is an accurate and complete listing in all
material respects of all the Accounts as of the Initial Purchase Date or
such Addition 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 in such Accounts is true and correct in all material
respects as of the Initial Purchase Date or such Addition Cut-Off Date, as
the case may be;
(iii) each Receivable conveyed to FCCF has been conveyed to FCCF
free and clear of any Lien and in compliance, in all material respects,
with all Requirements of Law applicable to Fleet (RI);
(iv) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required to
be obtained, effected or given by Fleet (RI) in connection with the
conveyance of Receivables to FCCF have been duly obtained, effected or
given and are in full force and effect;
(v) this Agreement or, in the case of Additional Accounts, the
related Supplemental Conveyance executed on such Addition Date,
constitutes a valid sale, transfer and assignment to FCCF of all right,
title and interest of Fleet (RI) in the Purchased Assets and such sale is
perfected under the UCC.
(vi) on the Initial Purchase Date, each Existing Account is an
Eligible Account and, on the applicable Addition Cut-Off Date, each
related Additional Account is an Eligible Account;
(vii) on the Initial Purchase Date, each Receivable then existing in
an Account is an Eligible Receivable and, on the applicable Addition
Cut-Off Date, each Receivable then existing in any related Additional
Accounts is an Eligible Receivable;
(viii) as of the date of the creation of any new Receivable in an
Account, such Receivable is an Eligible Receivable; and
(ix) no selection procedure has been utilized by Fleet (RI) which
Fleet (RI) reasonably believes would result in a selection of Existing
Accounts or Additional Accounts (from among the available Eligible
Accounts on the Initial Purchase Date or the applicable Addition Cut-Off
Date, as the case may be) that would be materially adverse to the
interests of FCCF or its transferees.
(b) Notice of Breach. The representations and warranties set forth
in this Section 4.02 shall survive the sale of the Purchased Assets to FCCF.
Upon discovery by either Fleet (RI) or FCCF of a breach of any of the
representations and warranties set forth in this Section 4.02, the party
discovering such breach shall give written notice to the other party and the
Trustee. Fleet (RI) agrees to cooperate with FCCF in attempting to cure any such
breach. Fleet (RI) hereby acknowledges that FCCF intends to rely on the
representations hereunder in connection with representations made by FCCF to
secured parties, assignees or subsequent transferees including but not limited
to transfers made by FCCF to the Trustee pursuant to the Pooling and Servicing
Agreement, and Fleet (RI) hereby consents to such reliance.
17
Section 4.03. Representations and Warranties of FCCF. As of the
Initial Purchase Date and each Addition Date, FCCF hereby represents and
warrants to, and agrees with, Fleet (RI) that:
(a) Organization and Good Standing. FCCF is a limited liability
company duly formed and validly existing under the laws of the State of Delaware
and has, in all material respects, full power and authority to own its
properties and conduct its business as such properties are presently owned and
such business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
(b) Due Authorization. The execution and delivery by FCCF of this
Agreement and any other document or instrument delivered pursuant hereto,
including any Supplemental Conveyance executed on such Addition Date, to which
FCCF is a party, and the consummation by FCCF of the transactions provided for
in this Agreement and any such Supplemental Conveyance, have been duly
authorized by FCCF by all necessary action on the part of FCCF.
(c) No Conflict. The execution and delivery of this Agreement by
FCCF, the performance by FCCF of the transactions contemplated by this
Agreement, and the fulfillment by FCCF of the terms of this Agreement applicable
to FCCF, will not 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 FCCF is a party or by which it or any
of its properties are bound.
(d) No Violation. The execution, delivery and performance of this
Agreement by FCCF and the fulfillment by FCCF of the terms hereof applicable to
FCCF will not conflict with or violate any Requirements of Law applicable to
FCCF.
(e) No Proceedings. There are no proceedings or investigations
pending, or to the best knowledge of FCCF, threatened, against FCCF, before any
Governmental Authority (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Agreement, (iii) seeking any determination or ruling that, in the
reasonable judgment of FCCF, would materially and adversely affect the
performance by FCCF of its obligations under this Agreement or (iv) seeking any
determination or ruling that would materially and adversely affect the validity
or enforceability of this Agreement.
(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 FCCF in connection with the
execution and delivery by FCCF of this Agreement and the performance by FCCF of
the transactions contemplated by this Agreement have been duly obtained,
effected or given and are in full force and effect.
18
The representations and warranties set forth in this Section 4.03
shall survive the sale of the Purchased Assets to FCCF. Upon discovery by Fleet
(RI) or FCCF of a breach of any of the foregoing representations and warranties,
the party discovering such breach shall give written notice to the other party
and the Trustee within three Business Days following such discovery. FCCF agrees
to cooperate with Fleet (RI) in attempting to cure any such breach.
[END OF ARTICLE IV]
19
ARTICLE V
COVENANTS
Section 5.01. Covenants of Fleet (RI). Fleet (RI) hereby covenants
and agrees with FCCF as follows:
(a) Receivables Not To Be Evidenced by Promissory Notes or Chattel
Paper. Except in connection with the enforcement or collection of a Receivable,
Fleet (RI) will take no action to cause any Receivable sold to FCCF hereunder to
be evidenced by any instrument or chattel paper (as defined in the UCC), and if
any Receivable is so evidenced as a result of any action by Fleet (RI) it shall
be deemed to be an Ineligible Receivable described in subsection 6.01(a) and
shall be reassigned to Fleet (RI) in accordance with subsection 6.01(b);
provided, however, that Receivables evidenced by notes taken from Obligors in
the ordinary course of business of Fleet (RI)'s collection efforts shall not be
deemed Ineligible Receivables solely as a result thereof.
(b) Security Interests. Except for the conveyances hereunder,
Fleet (RI) will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any Lien arising through or
under Fleet (RI) on any Purchased Assets; Fleet (RI) will immediately notify
FCCF and the Trustee of the existence of any Lien arising through or under Fleet
(RI) on any Purchased Assets; and Fleet (RI) shall defend the right, title and
interest of FCCF in, to and under the Purchased Assets, whether now existing or
hereafter created, against all claims of third parties claiming through or under
Fleet (RI).
(c) Delivery of Collections. In the event that Fleet (RI) receives
Collections, Fleet (RI) agrees to pay FCCF (or to the Servicer if FCCF so
directs) all such Collections as soon as practicable after receipt thereof but
in no event later than two Business Days after the receipt thereof by Fleet
(RI).
(d) Notice of Liens. Fleet (RI) shall notify FCCF and the Trustee
promptly after becoming aware of any Lien arising through or under Fleet (RI) on
any Purchased Assets other than the Lien of the conveyances hereunder.
(e) Periodic Rate Finance Charges and Other Fees. Except as
otherwise required by any Requirements of Law or as is deemed by Fleet (RI) in
its sole discretion to be necessary in order for it to maintain its lending
business on a competitive basis based on a good faith assessment by Fleet (RI)
of the nature of its competition in the lending business, it shall not at any
time reduce the annual percentage rate of the Periodic Finance Charges assessed
on the Receivables transferred by it to FCCF or other fees charged on any of the
Accounts owned by it if, as a result of any such reduction, either (i) Fleet
(RI)'s reasonable expectation is that such reduction will cause a Pay Out Event
to occur or (ii) such reduction is not also applied to any comparable segments
of consumer revolving credit card accounts owned by Fleet (RI) which have
characteristics the same as, or substantially similar to, such Accounts.
(f) Cardholder Agreements and Credit Card Guidelines. Fleet (RI)
shall comply with and perform its obligations under the Cardholder Agreements
relating to the Accounts and the Credit Card Guidelines and all applicable rules
and regulations of MasterCard and VISA or their respective substantial
equivalents except insofar as any failure so to comply or perform would not
materially and adversely affect the validity, enforceability or right to collect
any Receivables and which would not otherwise adversely affect the rights or
interests of FCCF.
20
Subject to compliance with all Requirements of Law, Fleet (RI) may change the
terms and provisions of the Cardholder Agreements or the Credit Card Guidelines
with respect to any of the Accounts owned by it in any respect (including the
calculation of the amount, or the timing, of charge-offs and the Periodic
Finance Charges and other fees to be assessed thereon) only if in the reasonable
judgment of Fleet (RI) such change is made applicable to any comparable segment
of the consumer revolving credit card accounts owned by Fleet (RI) which have
characteristics the same as, or substantially similar to, such Accounts.
(g) MasterCard and VISA. Fleet (RI), to the extent applicable to
the Accounts shall use its best efforts to remain, either directly or
indirectly, a member in good standing of the MasterCard system, the VISA system
and any other similar entity's or organization's system relating to any other
type of consumer revolving credit card accounts included as Accounts.
(h) Documentation of Transfer. Fleet (RI) shall file the documents
which would be necessary to perfect and maintain the perfection of the sale of
the Purchased Assets to FCCF.
(i) Jurisdiction or Type of Organization. Fleet (RI) shall not
change its name or its jurisdiction or type of organization without previously
having delivered to FCCF an opinion of counsel to the effect that all actions
have been taken, and all filings have been made, as are necessary to continue
and maintain the first-priority perfected ownership interest of FCCF in the
Purchased Assets.
(j) Annual Opinion. On or before May 31 of each year, beginning
with May 31, 2002, Fleet (RI) shall deliver to FCCF an opinion of counsel to the
effect that (i) no further action with respect to the recording or filing of any
financing statements, any continuation statements, or any other documents or
filings is then necessary to perfect the ownership interest of FCCF in the
Purchased Assets, and (ii) no further action with respect to the recording or
filing of any financing statements, any continuation statements, or any other
documents or filings will be necessary prior to May 31 of the next calendar year
to perfect the ownership interest of FCCF in the Purchased Assets or stating
what such filings will be necessary prior to such May 31.
Section 5.02. Account Allocations. If a Transfer Restriction Event
occurs, then, in any such event, Fleet (RI) agrees (except as prohibited by any
such order or any Requirement of Law) to allocate and pay to FCCF, after the
date of such Transfer Restriction Event, all Collections with respect to
Principal Receivables previously sold to FCCF. To the extent that it is not
clear to Fleet (RI) whether collections relate to a Principal Receivable that
was sold to FCCF or to a Principal Receivable that Fleet (RI) is unable to sell
to FCCF, Fleet (RI) agrees that it shall allocate payments on each Account with
respect to the principal balance of such Account first to the oldest principal
balance of such Account. Notwithstanding any cessation of the sale to FCCF of
additional Principal Receivables, Principal Receivables sold to FCCF prior to
the occurrence of the event giving rise to such inability, Collections in
respect of such Principal Receivables, Finance Charge Receivables whenever
created that accrue in respect of such Principal Receivables, and Collections in
respect of such Finance Charge Receivables, shall continue to be property of
FCCF available for transfer by FCCF to the Trustee pursuant to the Pooling and
Servicing Agreement.
[END OF ARTICLE V]
21
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables.
(a) In the event (i) any representation or warranty contained in
subsection 4.02(a)(ii), (iii), (iv), (vi), (vii), (viii) or (ix) 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 as a result of such breach FCCF is
required under Subsection 2.05(a) of the Pooling and Servicing to accept
reassignment of such Receivables previously sold by Fleet (RI) to FCCF pursuant
to this Agreement or (ii) it is so provided in subsection 5.01(a), Fleet (RI)
shall accept reassignment of such Receivables on the terms and conditions set
forth in Subsection 6.01(b). Receivables which are to be reassigned to Fleet
(RI) under this subsection 6.01(a) are "Ineligible Receivables."
(b) Fleet (RI) shall accept reassignment of any Receivables
described in subsection 6.01(a) from FCCF on the date on which such Receivables
are reassigned to FCCF pursuant to subsection 2.05(a) of the Pooling and
Servicing Agreement, and shall pay for such reassigned Receivables by paying to
FCCF, or if so directed by FCCF, to the Trustee for deposit as directed by FCCF
into the accounts created under the Pooling and Servicing Agreement, and such
payment shall be made by Fleet (RI), not later than 3:00 p.m., New York City
time, on such date, an amount equal to the unpaid balance of such Receivables.
Upon reassignment of such Receivables, FCCF shall automatically and without
further action sell, transfer, assign, set-over and otherwise convey to Fleet
(RI), without recourse, representation or warranty, all the right, title and
interest of FCCF in and to such Receivables, all Recoveries with respect to such
Receivables, all Allocated Interchange allocable to such Receivables, all monies
due or to become due and all amounts received or receivable with respect
thereto, all Collections with respect thereto, and all proceeds (including,
without limitation, "proceeds" as defined in the UCC) thereof. Such reassigned
Ineligible Receivables shall be treated by FCCF as collected in full as of the
date on which they were reassigned. FCCF shall execute such documents and
instruments of transfer or assignment and take such other actions as shall
reasonably be requested by Fleet (RI) to effect the conveyance of such
Ineligible Receivables and other property pursuant to this subsection.
Section 6.02. Reassignment of Other Receivables.
(a) In the event any representation or warranty set forth in
subsection 4.01(a)(i) or (iii) or in subsection 4.02(a)(i) or (v) is not true
and correct in any material respect and as a result of such breach FCCF is
required under Subsection 2.06 of the Pooling and Servicing Agreement to accept
a reassignment of all of the Receivables previously sold by Fleet (RI) to FCCF
pursuant to this Agreement, Fleet (RI) shall accept a reassignment of such
Receivables on the terms and conditions set forth in subsection 6.02(b).
(b) Fleet (RI) shall accept reassignment of any Receivables
described in subsection 6.02(a) from FCCF on the date on which such Receivables
are reassigned to FCCF, and shall pay for such reassigned Receivables by paying
to FCCF, not later than 1:00 p.m., New York City time, on the second Business
Day preceding the first Distribution Date following the Monthly Period in which
such reassignment obligation arises, an amount equal to the unpaid
22
balance of such Receivables. Upon reassignment of such Receivables, FCCF shall
automatically and without further action sell, transfer, assign, set-over and
otherwise convey to Fleet (RI), without recourse, representation or warranty,
all the right, title and interest of FCCF in and to such Receivables, all
Recoveries with respect to such Receivables, all Allocated Interchange allocable
to such Receivables, all monies due or to become due and all amounts received or
receivable with respect thereto, all Collections with respect thereto, and all
proceeds (including, without limitation, "proceeds" as defined in the UCC)
thereof. FCCF shall execute such documents and instruments of transfer or
assignment and take such other actions as shall reasonably be requested by Fleet
(RI) to effect the conveyance of such Receivables and other property pursuant to
this subsection.
[END OF ARTICLE VI]
23
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to FCCF's Purchase Obligations. The
obligations of FCCF to purchase the Receivables in the Existing Accounts on the
Initial Purchase Date shall be subject to the satisfaction of the following
conditions:
(a) All representations and warranties of Fleet (RI) contained in
this Agreement shall be true and correct on the Initial Purchase Date with the
same effect as though such representations and warranties had been made on such
date;
(b) All information concerning the Existing Accounts provided to
FCCF shall be true and correct as of the Initial Purchase Date in all material
respects;
(c) Fleet (RI) shall have (i) delivered to FCCF a true and correct
Account Schedule with respect to the Existing Accounts, and (ii) performed all
other obligations required to be performed by Fleet (RI) on or before the
Initial Purchase Date by the provisions of this Agreement;
(d) Fleet (RI) shall have recorded and filed, at its expense, any
financing statement with respect to the Purchased Assets meeting the
requirements of applicable law in such manner and in such jurisdictions as are
necessary to perfect the sale of the Purchased Assets from Fleet (RI) to FCCF,
and shall deliver a file-stamped copy of such financing statements or other
evidence of such filings to FCCF;
(e) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to FCCF, and FCCF shall have received from
Fleet (RI) copies of all documents (including, without limitation, records of
corporate proceedings) relevant to the transactions herein contemplated as FCCF
may reasonably have requested.
Section 7.02. Conditions Precedent to Fleet (RI)'s Obligations. The
obligations of Fleet (RI) to sell the Receivables in the Existing Accounts as of
the Initial Purchase Date shall be subject to the satisfaction of the following
conditions:
(a) All representations and warranties of FCCF contained in this
Agreement shall be true and correct on the Initial Purchase Date with the same
effect as though such representations and warranties had been made on such date;
(b) Payment or provision for payment of the Purchase Price in
accordance with Section 3.01 hereof shall have been made; and
(c) All company and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to Fleet (RI), and Fleet (RI) shall have
received from FCCF copies of all documents (including, without limitation,
records of company proceedings) relevant to the transactions herein contemplated
as Fleet (RI) may reasonably have requested.
[END OF ARTICLE VII]
24
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.01. Term. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue until the earlier of (i) the
termination of the Trust as provided in Article XII of the Pooling and Servicing
Agreement and (ii) the date on which FCCF is removed as a Transferor under the
Pooling and Servicing Agreement or Fleet (RI) becomes a Transferor under the
Pooling and Servicing Agreement and transfers Receivables in the Accounts to the
Trustee. Thereafter this Agreement may be terminated by the mutual agreement of
the parties hereto.
Section 8.02. Purchase Termination. If Fleet (RI) shall consent to
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to Fleet (RI) or of or relating to all or
substantially of or relating to all of 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 conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against Fleet (RI); or Fleet (RI) shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors or voluntarily suspend payment of
its obligations (each, an "INSOLVENCY EVENT"); then Fleet (RI) shall immediately
cease to sell Principal Receivables to FCCF and shall promptly give notice to
FCCF and the Trustee of such Insolvency Event. Notwithstanding any cessation of
the sale to FCCF of additional Principal Receivables, Principal Receivables sold
to FCCF prior to the occurrence of such Insolvency Event, Collections in respect
of such Principal Receivables, Finance Charge Receivables whenever created that
accrue in respect of such Principal Receivables, and Collections in respect of
such Finance Charge Receivables, shall continue to be property of FCCF available
for transfer by FCCF to the Trustee pursuant to the Pooling and Servicing
Agreement. To the extent that it is not clear to Fleet (RI) whether collections
relate to a Principal Receivable that was sold to FCCF or to a Principal
Receivable that Fleet (RI) has not sold to FCCF, Fleet (RI) agrees that it shall
allocate payments on each Account with respect to the principal balance of such
Account first to the oldest principal balance of such Account.
[END OF ARTICLE VIII]
25
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment. This Agreement may not be changed orally,
but only by an instrument in writing signed by FCCF and Fleet (RI) in accordance
with this Section 9.01. This Agreement may be amended from time to time by FCCF
and Fleet (RI) (a) to cure any ambiguity, (b) to correct or supplement any
provisions herein which may be inconsistent with any other provisions herein,
(c) to add any other provisions with respect to matters or questions arising
under this Agreement which shall not be inconsistent with the provisions of this
Agreement, (d) to change or modify the Purchase Price, and (e) to change,
modify, delete or add any other obligation of Fleet (RI) or FCCF; provided,
however, that no amendment pursuant to clause (d) or (e) of this Section 9.01
shall be effective unless the Rating Agency Condition has been satisfied;
provided further that FCCF shall have delivered to the Servicer and the Trustee
an Officer's Certificate to the effect that FCCF reasonably believes that such
action will not have an Adverse Effect. Any reconveyance or reassignment
executed in accordance with the provisions hereof shall not be considered to be
an amendment to this Agreement. A copy of any amendment to this Agreement shall
be sent to each Rating Agency.
Section 9.02. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.03. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by certified mail, return receipt requested,
to (a) in the case of Fleet (RI), to Fleet Bank (RI), National Association, ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Mail Stop: PA EH 066 01H,
Attention: Director of Securitization Structuring (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇)
with a copy to General Counsel, Mail Stop: PA EH 066 02L, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (b) in the case of FCCF, to Fleet Credit Card Funding, LLC,
Suite PA EH 066 01L, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: President with a copy to General Counsel of Fleet Credit Card
Funding, LLC, Mail Stop: PA EH 066 02L, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and (c) in the case of the Trustee, to Bankers Trust Company, Four ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance Team, or, as to
each party, at such other address as shall be designated by such party in a
written notice to each other party in accordance with this Section 9.03.
Section 9.04. 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 covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, and terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
26
Section 9.05. Assignment; Merger or Consolidation of, or Assumption
of the Obligations of Fleet (RI). (a) Notwithstanding anything to the contrary
contained herein, other than FCCF's assignment of its right, title, and interest
in, to, and under this Agreement to the Trustee as contemplated by the Pooling
and Servicing Agreement and Section 9.06 hereof, this Agreement may not be
assigned by the parties hereto.
(b) Fleet (RI) shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person unless:
(i)(x) the corporation formed by such consolidation or into which
Fleet (RI) is merged or the Person which acquires by conveyance or
transfer the properties and assets of Fleet (RI) substantially as an
entirety shall be, if Fleet (RI) 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 Fleet (RI) is
not the surviving entity, such corporation shall expressly assume, by an
agreement supplemental hereto, executed and delivered to FCCF and the
Trustee, in form satisfactory to FCCF and the Trustee, the performance of
every covenant and obligation of Fleet (RI) hereunder; and (y) Fleet (RI)
has delivered to FCCF and the Trustee an Officer's Certificate and an
Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer 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 Debtor Relief Laws and except as such enforceability
may be limited by general principles of equity (whether considered in a
suit at law or in equity), and that all conditions precedent herein
provided for relating to such transaction have been complied with;
(ii) the Rating Agency Condition shall have been satisfied with
respect to such consolidation, merger, conveyance or transfer; and
(iii) if any securities issued by the Trust are outstanding that
were characterized as debt at the time of their issuance, Fleet (RI) shall
have delivered to FCCF, the Trustee and each Rating Agency a Tax Opinion,
dated the date of such consolidation, merger, conveyance or transfer, with
respect thereto.
(c) The Obligations of Fleet (RI) hereunder shall not be
assignable nor shall any Person succeed to the obligations of Fleet (RI)
hereunder except in each case in accordance with the provisions of the foregoing
paragraph (b).
Section 9.06. Acknowledgement and Agreement of Fleet (RI). By
execution below, Fleet (RI) expressly acknowledges and agrees that all of FCCF's
right, title, and interest in, to, and under this Agreement, including, without
limitation, all of FCCF's right, title, and interest in and to the Purchased
Assets, may be assigned by FCCF to the Trustee, and Fleet (RI) consents to such
assignments. Fleet (RI) further agrees that notwithstanding any claim,
counterclaim, right of setoff or defense which it may have against FCCF, due to
a breach by FCCF of this Agreement or for any other reason, and notwithstanding
the bankruptcy of FCCF or
27
any other event whatsoever, Fleet (RI)'s sole remedy shall be a claim against
FCCF for money damages, and then only to the extent of funds available to FCCF,
and in no event shall Fleet (RI) assert any claim on or any interest in the
Purchased Assets or take any action which would reduce or delay receipt by the
Trustee of Collections with respect to the Purchased Assets. Additionally, Fleet
(RI) agrees that any amounts payable by Fleet (RI) to FCCF hereunder which are
to be paid by FCCF to the Trustee or the Servicer shall be paid by Fleet (RI)
directly to the Trustee or the Servicer, as assignee of FCCF.
Section 9.07. Further Assurances. FCCF and Fleet (RI) 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 other party or the
Trustee more fully to effect the purposes of this Agreement, including, without
limitation, the execution or authorization of any financing statements or
continuation statements or amendments to financing statements or equivalent
documents relating to the Purchased Assets for filing under the provisions of
the UCC or other law of any applicable jurisdiction.
Section 9.08. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of FCCF or Fleet (RI), any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 9.09. 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 9.10. Binding; Third-Party Beneficiaries. This Agreement
will inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. The Trust and the Trustee shall be
considered third-party beneficiaries of this Agreement.
Section 9.11. 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 9.12. Headings. The headings are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
Section 9.13. Schedules and Exhibits. The schedules and exhibits
attached hereto and referred to herein shall constitute a part of this Agreement
and are incorporated into this Agreement for all purposes.
Section 9.14. Survival of Representations and Warranties. All
representations, warranties and agreements contained in this Agreement or
contained in any Supplemental
28
Conveyance shall remain operative and in full force and effect and shall survive
conveyance of the Purchased Assets by FCCF to the Trustee pursuant to the
Pooling and Servicing Agreement.
Section 9.15. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, Fleet (RI) shall not, prior to the date which is
one year and one day after the termination of this Agreement, acquiesce,
petition or otherwise invoke or cause FCCF or the Trust to invoke the process of
any Governmental Authority for the purpose of commencing or sustaining a case
against FCCF or the Trust under any Debtor Relief Law or appointing a receiver,
conservator, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of FCCF or the Trust or any substantial part of its property or
ordering the winding-up or liquidation of the affairs of FCCF or the Trust.
[END OF ARTICLE IX]
29
IN WITNESS WHEREOF, Fleet (RI) and FCCF have caused this Receivables
Purchase Agreement to be duly executed by their respective officers as of the
date first above written.
FLEET BANK (RI), NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
FLEET CREDIT CARD FUNDING, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Acknowledged and Accepted by:
BANKERS TRUST COMPANY,
not in its individual capacity, but solely as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
EXHIBIT A
FORM OF SUPPLEMENTAL CONVEYANCE
(As required by Section 2.02 of
the Receivables Purchase Agreement)
SUPPLEMENTAL CONVEYANCE No. ___ dated as of _______________,
by and between FLEET BANK (RI), NATIONAL ASSOCIATION, a national banking
association ("FLEET (RI)"), and FLEET CREDIT CARD FUNDING, LLC, a Delaware
limited liability company ("FCCF"), pursuant to the Receivables Purchase
Agreement referred to below.
WITNESSETH:
WHEREAS, Fleet (RI) and FCCF are parties to a Receivables
Purchase Agreement, dated as of January 1, 2002 (hereinafter as such agreement
may have been, or may from time to time be, amended, supplemented or otherwise
modified, the "RECEIVABLES PURCHASE AGREEMENT");
WHEREAS, pursuant to the Receivables Purchase Agreement, Fleet
(RI) wishes to designate Additional Accounts to be included as Accounts, and
Fleet (RI) wishes to convey its right, title and interest in the Receivables of
such Additional Accounts, whether existing on the Addition Cut-Off Date or
thereafter created, to FCCF pursuant to the Receivables Purchase Agreement; and
WHEREAS, FCCF is willing to accept such designation and
conveyance subject to the terms and conditions hereof.
NOW, THEREFORE, Fleet (RI) and FCCF hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have
the meanings ascribed to them in the Receivables Purchase Agreement unless
otherwise defined herein.
"Addition Cut-Off Date" shall mean, with respect to the
Additional Accounts, __________.
"Addition Date" shall mean, with respect to the Additional
Accounts, _____________.
"Additional Accounts" shall mean the Additional Accounts, as
defined in the Receivables Purchase Agreement, that are designated hereby and
listed on SCHEDULE 1 hereto.
"Additional Purchased Assets" shall have the meaning set forth
in Section 3(a).
A-1
2. Designation of Additional Accounts. Fleet (RI) delivers
herewith an Account Schedule containing a true and complete list of the
Additional Accounts. Such Account Schedule is incorporated into and made part of
this Supplemental Conveyance, shall be SCHEDULE 1 to this Supplemental
Conveyance and shall supplement SCHEDULE 1 to the Receivables Purchase
Agreement.
3. Conveyance of Receivables.
(a) Fleet (RI) does hereby sell, transfer, assign, set over
and otherwise convey to FCCF, without recourse except as provided in the
Receivables Purchase Agreement, all of its right, title and interest, whether
now owned or hereafter acquired, in, to and under the Receivables existing in
the Additional Accounts at the close of business on the Addition Cut-Off Date
and thereafter created in the Additional Accounts from time to time, all
Allocated Interchange and Recoveries with respect to such Receivables, all
monies due or to become due and all amounts received or receivable with respect
thereto, all Collections with respect thereto and all proceeds (including,
without limitation, "proceeds" as defined in the UCC) thereof (collectively, the
"ADDITIONAL PURCHASED ASSETS").
(b) In connection with such sale and if necessary, Fleet (RI)
agrees to record and file, at its own expense, one or more financing statements
(and amendments and continuation statements with respect to such financing
statements when applicable) with respect to the Additional Purchased Assets
meeting the requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect the sale of the Additional Purchased
Assets to FCCF, and to deliver a file-stamped copy of such financing statements
or amendments or continuation statements or other evidence of such filing to
FCCF.
(c) In connection with such sale, Fleet (RI) further agrees,
at its own expense, on or prior to the date of this Supplemental Conveyance, to
indicate in the appropriate computer files that all Receivables created in
connection with the Additional Accounts and the other Additional Purchased
Assets have been conveyed to FCCF pursuant to this Supplemental Conveyance.
(d) The parties hereto intend that the conveyance of Fleet
(RI)'s right, title and interest in and to the Additional Purchased Assets shall
constitute an absolute sale, conveying good title free and clear of any liens,
claims, encumbrances or rights of others from Fleet (RI) to FCCF. It is the
intention of the parties hereto that the arrangements with respect to the
Additional Purchased Assets shall for all purposes, including for accounting
purposes, constitute a purchase and sale of such Additional Purchased Assets and
not a loan. In the event, however, that it were to be determined that the
transactions evidenced hereby constitute a loan and not a purchase and sale, it
is the intention of the parties hereto that this Supplemental Conveyance shall
constitute a security agreement under applicable law, and that Fleet (RI) shall
be deemed to have granted, and Fleet (RI) does hereby grant, to FCCF a first
priority perfected security interest in all of Fleet (RI)'s right, title and
interest, whether now owned or hereafter acquired, in, to and under the
Additional Purchased Assets to secure the obligations of Fleet (RI) hereunder
and under the Receivables Purchase Agreement.
A-2
(e) To the extent that Fleet (RI) retains any interest in the
Additional Purchased Assets, Fleet (RI) hereby grants to the Trustee a security
interest in all of Fleet (RI)'s right, title and interest, whether now owned or
hereafter acquired, in, to and under the Additional Purchased Assets, to secure
the performance of all of the obligations of Fleet (RI) hereunder, under the
Pooling and Servicing Agreement and under the Receivables Purchase Agreement.
With respect to such security interest and such collateral, the Trustee shall
have all of the rights that it has under the Pooling and Servicing Agreement.
4. Acceptance by FCCF. FCCF hereby acknowledges that, prior to
or simultaneously with the execution and delivery of this Supplemental
Conveyance, Fleet (RI) delivered to FCCF the Account Schedule described in
Section 2 of this Supplemental Conveyance with respect to all Additional
Accounts.
5. Representations and Warranties of Fleet (RI). Fleet (RI)
hereby represents and warrants to FCCF as of the date of this Supplemental
Conveyance and as of the Addition Date that:
(a) Legal, Valid and Binding Obligation. This Supplemental
Conveyance constitutes a legal, valid and binding obligation of Fleet (RI)
enforceable against Fleet (RI) in accordance with its terms, except as such
enforceability may be limited by applicable Debtor Relief Laws and except as
such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(b) Account Schedule. As of the Addition Date, Schedule 1 to
the Receivables Purchase Agreement as supplemented on the Addition Date by the
Account Schedule delivered pursuant to Section 2 of this Supplemental Conveyance
is an accurate and complete listing in all material respects of all Accounts
including the Additional Accounts as of the Addition Cut-Off Date and the
information contained therein with respect to the identity of the Accounts and
the Receivables existing in such Accounts is true and correct in all material
respects as of the Addition Cut-Off Date.
(c) No Liens. Each Receivable conveyed to FCCF by this
Supplemental Conveyance has been conveyed to FCCF free and clear of any Lien and
in compliance, in all material respects, with all Requirements of Law applicable
to Fleet (RI).
(d) Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by Fleet (RI) in connection with the
conveyance of Receivables to FCCF pursuant to this Supplemental Conveyance have
been duly obtained, effected or given and are in full force and effect.
(e) Sale. This Supplemental Conveyance constitutes a valid
sale, transfer and assignment to FCCF of all right, title and interest of Fleet
(RI) in the Additional Purchased Assets and such sale is perfected under the
UCC.
(f) Eligible Accounts. On the Addition Cut-Off Date, each
Additional Account is an Eligible Account.
A-3
(g) Eligible Receivables. On the Addition Cut-Off Date, each
Receivable then existing in any Additional Account is an Eligible Receivable.
(h) New Receivables. As of the date of the creation of any new
Receivable in an Additional Account, such Receivable is an Eligible Receivable.
(i) No Adverse Selection. No selection procedure has been
utilized by Fleet (RI) which Fleet (RI) reasonably believes would result in a
selection of the Additional Accounts (from among the available Eligible Accounts
on the Addition Cut-Off Date) that would be materially adverse to the interests
of FCCF or its transferees.
(j) Insolvency. No Insolvency Event with respect to Fleet (RI)
has occurred and the transfer of the Additional Purchased Assets to FCCF has not
been made in contemplation of the occurrence thereof.
(k) FDIC Insurance. Fleet (RI) is an insured institution for
purposes of the Federal Deposit Insurance Act.
(l) No Conflict. The execution and delivery by Fleet (RI) of
this Supplemental Conveyance, the performance by Fleet (RI) of the transactions
contemplated by this Supplemental Conveyance and the fulfillment by Fleet (RI)
of the terms hereof, will not 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 Fleet (RI) is a party or by
which it or its properties are bound;
(m) No Violation. The execution and delivery by Fleet (RI) of
this Supplemental Conveyance, the performance by Fleet (RI) of the transactions
contemplated by this Supplemental Conveyance and the fulfillment by Fleet (RI)
of the terms hereof will not conflict with or violate any Requirements of Law
applicable to Fleet (RI).
(n) No Proceedings. There are no Proceedings or investigations
pending or, to the best knowledge of Fleet (RI), threatened, against Fleet (RI)
before any Governmental Authority (i) asserting the invalidity of this
Supplemental Conveyance, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Supplemental Conveyance, (iii) seeking any
determination or ruling that, in the reasonable judgment of Fleet (RI), would
materially and adversely affect the performance by Fleet (RI) of its obligations
under this Supplemental Conveyance or (iv) seeking any determination or ruling
that would materially and adversely affect the validity or enforceability of
this Supplemental Conveyance.
(o) All Consents. All approvals, authorizations, consents,
orders or other actions of any Person or of any governmental body or official
required in connection with the execution and delivery by Fleet (RI) of this
Supplemental Conveyance and the performance by Fleet (RI) of the transactions
contemplated by this Supplemental Conveyance and the fulfillment by Fleet (RI)
of the terms hereof have been obtained.
6. Ratification of the Receivables Purchase Agreement. The
Receivables Purchase Agreement is hereby ratified, and all references to the
"RECEIVABLES PURCHASE AGREEMENT," to "THIS AGREEMENT" and "HEREIN" shall be
deemed from and after the Addition Date
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to be a reference to the Receivables Purchase Agreement as supplemented and
amended by this Supplemental Conveyance. Except as expressly amended hereby, all
the representations, warranties, terms, covenants and conditions of the
Receivables Purchase 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 consent to non-compliance with any
term or provision of the Receivables Purchase Agreement.
7. Counterparts. This Supplemental Conveyance may be executed
in any number of counterparts, all of which taken together shall constitute one
and the same instrument.
8. GOVERNING LAW. THIS SUPPLEMENTAL CONVEYANCE SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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IN WITNESS WHEREOF, the undersigned have caused this
Supplemental Conveyance to be duly executed and delivered by their respective
duly authorized officers on the date first above written.
FLEET BANK (RI), NATIONAL ASSOCIATION
By: __________________________________
Name:
Title:
FLEET CREDIT CARD FUNDING, LLC
By: __________________________________
Name:
Title:
Acknowledged and Accepted by:
BANKERS TRUST COMPANY,
as Trustee
By: _____________________________
Name:
Title:
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SCHEDULE 1
TO
SUPPLEMENTAL
CONVEYANCE
ADDITIONAL ACCOUNTS
EXHIBIT B
FORM OF OPINION OF COUNSEL ON
DESIGNATION OF ADDITIONAL ACCOUNTS
The opinions set forth below may be subject to all the
qualifications, assumptions, limitations and exceptions taken or made in the
Opinions of Counsel delivered in connection with the initial sales under this
Agreement.
1. The Receivables constitute "accounts," as defined the UCC.
2. The Receivables Purchase Agreement creates in favor of FCCF
a security interest in the Receivables and the proceeds thereof. Such security
interest is perfected and of first priority.
3. If the Federal Deposit Insurance Corporation should be
appointed as conservator or receiver for Fleet (RI) pursuant to Section 11(c) of
the Federal Deposit Insurance Act, then if the matter were properly briefed and
presented to a court, the court would hold that (a) the FDIC could not reclaim,
recover, or recharacterize as property of Fleet (RI) or the receivership the
assets that have been transferred by Fleet (RI) to FCCF pursuant to the
Receivables Purchase Agreement, and (b) the FDIC could not avoid the Receivables
Purchase Agreement.
B-1
SCHEDULE 1
LIST OF ACCOUNTS
